The Appellate Division gave a strong reminder to be sure to follow your discovery orders. In an unreported decision, Rivera v. Union Cnty., Twp. of Hillside, No. A-2773-22, 2024 WL 3873713 (N.J. Super. Ct. App. Div. Aug. 20, 2024), the Appellate Division affirmed the Trial Court’s order denying the plaintiff’s request to extend discovery due to the plaintiff’s failure to prove exceptional circumstances.
The Trial Court, in its fifth and final discovery extension order, set forth a detailed schedule for the remainder of discovery and set forth a trial date. After the deadline for fact witness depositions had passed, the plaintiff took the deposition of one of the defendant’s representatives. That testimony caused the plaintiff’s expert to inform the plaintiff that they would not be able to offer an opinion.
The plaintiff filed a motion to extend discovery for a sixth time while the defendant’s motion for summary judgment was pending. The Trial Court denied the plaintiff’s motion, and a subsequent motion for reconsideration, finding that the plaintiff’s last minute expert issue did not meet the exceptional circumstances standard under Rule 4:24-1(c). Neither did the plaintiff’s arguments that said defendant was recently added to the case, or that an associate’s departure and COVID-related office issues hampered the plaintiff’s attorney’s firm.
The Appellate Division affirmed. The plaintiff never addressed the four factors to consider when deciding whether a party has shown exceptional circumstances: (1) why discovery has not been completed within time and counsel’s diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel’s failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.
The Appellate Division emphasized that the deposition that caused the late-breaking expert issues took place after the deadline for fact depositions passed. The plaintiff failed to show the required due diligence by promptly moving to compel depositions prior to the deadline set forth in the Trial Court’s final discovery order. The Appellate Division also noted that staffing concerns are insufficient to show exceptional circumstances. This case serves as a reminder that the deadlines in discovery orders matter, and that the courts will enforce those orders.
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