Failure to Produce Discovery
By Snyder & Sarno on June 01, 2016
Rule 4:23-5 describes a two-step process regarding applications to dismiss a party’s pleadings for failure to produce discovery. The first step allows for a dismissal without prejudice, such as seen in Edgerton v. Edgerton. A dismissal without prejudice is not a final order from which someone can appeal. The party who did not produce the discovery may move on notice for vacation of the dismissal at any time before entry of an order of dismissal with prejudice.
The parties, both self-represented, entered into a property settlement agreement (PSA) in June 2012. As a result of the husband’s modification application of alimony and child support in July 2013, the judge set a discovery end date in August 2013. The husband did not produce documents. In October 2013, the judge granted the wife’s motion to dismiss the husband’s modification application for failure to comply with discovery.
In February 2014, the husband filed a motion to restore the matter because he was unaware of the October 2013 application. As a result, the parties had to exchange discovery by no later than June 19, 2014. On June 20, 2014, the wife’s counsel wrote a letter stating that the husband did not comply with the discovery end date. Therefore, the October 2013 dismissal order was reinstated. Six days later, on June 26, 2014, the husband told the court that he did produce discovery. The husband appealed.
The Appellate Division determined that the husband was seeking review of a dismissal without prejudice when he had the right to apply for reinstatement of his pleadings following the steps found in Rule 4:23-5. Therefore, the husband’s appeal is from an “order not appealable as of right.” The Appellate Division dismissed the appeal.
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