published articles

"Guidelines for Discovery End-Date Extensions", Published January 3, 2011

Stephen Hankin's article published in The New Jersey Law Journal: "Guidelines for Discovery End-Date Extensions", Published January 3, 2011

By Stephen Hankin*

This article briefly reviews the burdens lawyers face in overcoming the standard governing discovery extension motions. The obstacles teach members of the Bar the need to diligently pursue discovery, especially in heavily contested matters where adversarial cooperation is unlikely, not only because interlocutory review is unlikely but for fear of understandably being targeted as a 'lowest-common-denominator practitioner. Paragon Contractors, Inc. v. Peachtree Association, 202 N.J. 415, 428 (2010) (Rivero-Soto, J., concurring).
Extension by Consent
Discovery end dates are generated shortly following case filings. Prudence dictates they be diaried on several dates well in advance of their arrival, without reliance upon judicial reminders. This will afford the opportunity for a 60-day discovery extension which is generally available without court order ' by submission of a writing signed by one party and copied to all parties, representing that all parties have consented to the extension R. 4:24-1(c). Attorneys should not rely upon assertions that they were 'lulled into a sense of believing adverse counsel consented through phone calls and email communications. Absent the writing required under R. 4:24-1(c), counsel is urged to file a motion to extend and set it returnable before the discovery end-date in order to make certain the motion is governed by a 'good cause rather than the heightened standard of 'extraordinary circumstances. The distinction points to the reason why pre-trial preparation cannot be lackadaisical and results from the codification of Best Practices in R. 4:24-1.
* Mr. Hankin, a member of Hankin Sandman & Palladino of Atlantic City and Cape May Court House, New Jersey, concentrates in complex commercial transactions, real estate, land use, employment, environmental law and related trial and appellate practice.

Filing After The End-Date But Before A Trial Or Arbitration Date
There are two trial court decisions holding that a party seeking the extension of a discovery end date must demonstrate 'exceptional circumstances when the application is filed after the end date expires, even where no trial or arbitration date has then been fixed. Vitti v. Brown, 359 N.J. Super 40, 45(Law Div. 2003); NGO v. Allstate, WL2560218 (Law Div. 2005). Notably, Vitti has been cited with approval in Sprankle v. Adamar of New Jersey, Inc., 388 N.J. Super 216 (Law Div. 2005), by the Appellate Division in Rivers v. LSC Partnership, 378 N.J. Super 68 (App. Div.), certif. denied, 185 N.J. 296 (2005) and in Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super 463 (App. Div. 2005), and by the Supreme Court in Bender v. Adelson, 187 N.J. 411, 428 (2006).
Some practitioners may mistakenly believe Tynes v. St. Peters University Center, 408 N.J. Super 159 (App. Div. 2009) holds to the contrary. In Tynes, an October 14, 2007 trial court order extending discovery until April 14, 2008 was under review because it textually required a showing of 'exceptional circumstances for a further extension even if sought before the April 14th end date. In denying the extension, which was filed and returnable before April 14th, the trial judge relied only upon the language of his October 14, 2007 order in which he imposed the 'extraordinary circumstances standard. In reversing, the Panel held the trial court had no discretion to alter the standard imposed by R. 4:24-1(c) which permits an extension for good cause rather than extraordinary circumstances when the application is made before the end date expires. Sharpe v. Adams, WL1657051 (App. Div. 2010) cites Tynes as for the proposition that a 'trial court may not, by force of a discovery order, dictate application of the exceptional circumstances standard before an arbitration date is scheduled.[emphasis supplied]

The Impact Of A Set Trial Or Arbitration Date
An even worse circumstance exists when an extension motion is filed once a trial or arbitration date has already been set because by explicit provision in R. 4:24-1(c) at that juncture no further discovery can occur absent court order upon a showing of exceptional circumstances. Ponden v. Ponden, 374 N.J.Super 1, 10 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). While several unpublished decisions suggest the critical date is when the judge decides the motion, there is no reported decision expressing whether the trial or arbitration date must be set by the date of the ruling on the extension motion or simply at the time the motion is filed. Resolution of the issue is not critical because under Vitti the extraordinary circumstances standard nonetheless applies once the discovery end-date has occurred, even if a trial or arbitration date not yet been fixed. The previous setting of an arbitration or trial date simply provides trial judges with greater reason to deny extension applications because extensions result in delay and the codification of Best Practices in R. 4:24-1(c) represents an 'orchestrated compromise to establish trial or arbitration date certainty. Bender at 187 N.J. 401, 426.
The Meaning of 'Exceptional Circumstances
Rivers, in reliance upon Vitti, holds that there are four inquiries, all of which a moving party must satisfy in order to make a showing of 'exceptional circumstances. These include: (1) inquiry as to why discovery has not been timely completed and counsel's diligence in timely pursuing it, (2) why the additional discovery sought is essential, (3) an explanation for counsel's failure to request an extension of time of discovery before the end date, and, finally, (4) whether the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension. Rivers, supra, 378 N.J. Super 79, citing Vitti v. Brown, 359 N.J. Super 51. In addressing these factors, a movant must provide clear, not vague, facts. Bender v. Adelson, supra, 187 N.J. 429. Further, the absence of prejudice to the non-movant is immaterial.
O'Donnell v. Ahmed, 363 N.J. Super 44, 51-52 (Law Div 2003) best discusses examples of exceptional circumstances which do not include an attorney's oversight, forgetfulness, workload or 'hectic schedule, instances of an attorney's lack of diligence or the absence of client cooperation. O'Donnell suggests the threshold need always to '[a]dvise the court in factual detail about how and why a schedule has prevented discovery . . ., noting qualifying circumstances might be counsel's health, a family or key witness's death or illness, office disruption due to responsible counsel's departure, or the last minute of submission of information requiring reasonable investigation. Engaging only in scant discovery is hurtful. Huszar v. Greate Bay Hotel & Casino, supra. Neither on-going settlement discussions nor staff problems satisfy the test. Both the movant's expeditious pursuit of and response to discovery are helpful. Scheduling and then cancelling depositions for reasons short of exceptional circumstances should preserve no right. Requesting a management conference, filing or defending a motion to compel discovery is no substitute for a timely motion to extend. The discovery of the need to join an additional party or claim should be useful if counsel previously exercised due diligence. Practitioners who are unaware of Rule changes should be especially cautious because the pre-Best Practices, somewhat lenient good cause standard simply no longer governs discovery extensions under these circumstances.
In contrast, Leitner v. Toms River Regional Schools, 392 N.J. Super 80 (App. Div. 2007) discusses good cause criteria. These include (1) the reasons for the requested extension of discovery, (2) diligence in pursuing discovery, (3) the type and nature of the case, including unique facts yielding discovery problems, (4) resultant prejudice to either party depending upon motion outcome (which does not include prolonging the stress and burden of litigation), (5) whether an extension would be consistent with Best Practices, (6) the age of the case and whether arbitration or trial date has been set, (7) the nature of discovery sought, (8) previous motion disposition. In the context of this good cause standard, where counsel has 'good and sufficient reason for his or her delay, discovery deadlines are generally not rigidly adhered to. Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super 48, 53-54 (2003).
'While [our] [R]ules will not be allowed to become booby traps ... [,] they were written [for a reason] and meant to be applied. State v. Mitchell, 126 N.J. 565, 578-9 (1992) (quoting Morris Schnitzer, Civil Practice and Procedure, 5 Rutgers L. Rev., 295-296 (1950)). Counsel should thus never rely upon the likelihood of an extension when Best Practices, like it or not, is so clear about our obligations.