How often, late in a case, do we realize that we don’t have all of the discovery that we need?  Why does this happen?  Sometimes you are trying to settle a case and are holding off on full discovery (or any discovery at all for that matter).  Sometimes, the other side has been recalcitrant in producing discovery.  Sometimes you learn of new assets or issues that require discovery that you didn’t know about earlier in the case.  There can be other reasons too. 

How often, late in a case, has a judge said you cannot have the discovery that you need?  Too often.  We always knew that it was wrong but here is a case, Dougherty v. Dougherty (unreported – non-precedential), decided on December 13, 2012, that arms us with some authority to cite so that we can get the discovery we need.

In this case, pre-trial, the trial judge only partially granted a discovery motion seeking certain critical retirement asset records.  At trial, the request for these records was made again.  As disposition of this asset was a central issue at trial, the lack of the critical records was problematic.

The Appellate Division reversed the pre-trial discovery order and ordered a new trial, finding that the trial judge abused her discretion in preventing the critical discovery.  The court noted:

"[O]ne of the essential purposes of a civil trial is the search for truth[.]" Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 117 (2005). "The trial court, not the parties, bears
the ultimate responsibility for ensuring the fairness of the proceedings." Ibid. The rules governing discovery procedures are designed to assure these fundamental concepts remain true. Gone are the days when a trial turns on the quality of counsel’s obfuscation of facts held solely by one party. The benefit of pre-trial discovery exchange aids the administration of justice and a fair determination of the issues.

The defendant’s, who was self-represented, pre-trial discovery motion wasn’t for sanctions, etc., but rather, it was to enforce the court’s prior Case Management Order.  Critical of the denial of the motion for pre-textual reasons, the Appellate Division stated:

The trial judge’s failure to enforce her prior order requiring production of "bank account balances, pension, or other records . . . by June 9, 2010[,]" ignored the judge’s principle role in "ensuring the fairness of the proceedings." See Gonzalez, supra, 185 N.J. at 117.

Essentially, the Appellate Division confirmed that this is not a came and gamesmanship and playing hide the ball cannot be permitted.  Most cases will settle but if a matter is going to be tried, the parties are entitled to have the evidence necessary to either prove or disprove issues at trial.  Nothing less is acceptable.  The search for the truth must be preserved and the court cannot permit the obfuscation of facts held solely by that party by allowing anything less than full discovery of those facts. Moreover, if that party will not provide discovery, court should, as is their right, draw adverse inferences against that party. The Court should not hurt the other party by shifting the burden of proof to that party and at the same time preventing that party from meeting their burden by obtaining the critical discovery.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or