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Legal Memorandum: Limitations on the Ability to Obtain Discovery

Issue: What are the limits of a party’s ability to obtain discovery from a non-party?

Area of Law: Litigation & Procedure
Keywords: Party's ability; Obtain discovery from a non-party; Discovery tactics
Jurisdiction: New Jersey
Cited Cases: 218 A.2d 284
Cited Statutes: None
Date: 08/01/2010

While a party has broad powers to take discovery from nonparties to a case, that power is not without limits.  Courts have traditionally refused to permit parties to use discovery tactics to harass and vex each other, let alone nonparties.   

In Marxe v. Marxe, 558 A.2d 522 (N.J. Super. Ct. Ch. Div. 1989), the divorcing parties were arguing over the value of the husband’s business assets.  A subpoena was issued against the husband’s business partner who resided in North Carolina, requiring him to appear in court during the divorce trial on any date in which the trial was being conducted.  The partner filed a motion to quash the subpoena, arguing that it was burdensome to expect that he appear without specifying a date certain.  Id., 558 A.2d at 525.  The court found the issuance of a subpoena in such vague and general terms was inconvenient to the witness.  While the court acknowledged that the subpoena itself was valid, the court modified the terms of the subpoena to minimize the inconvenience to the nonparty.  Id.

Another New Jersey court was faced with subpoenas issued in a divorce matter in Berrie v. Berrie, 457 A.2d 76 (N.J. Super. Ct. Ch. 1983).  In Berrie, the plaintiff’s brother (who was also the plaintiff’s business partner) was subpoenaed to provide information that Mrs. Berrie contended would be relevant to the determination of an accurate value of the business.  The plaintiff’s brother was unaware that a subpoena was […]

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