Protective Orders: A Shield All Lawyers Should Use
Discovery is often riddled with pitfalls, risk, and exposure for clients. Parties to litigation often request sensitive or embarrassing documents or information beyond the proper scope of discovery. While a party is allowed to cast a wide net when requesting discovery, discovery is not unlimited. The New Jersey Rules of Court, like the Federal Rules, are designed to prevent fishing expeditions. Discovery should be tailored to the issues involved in the particular case and must be relevant to the allegations of plaintiff’s complaint.
What is a party to do when opposing counsel is pushing the limits of what is discoverable? First, pursuant to the Court Rules, parties should always attempt to amicably resolve discovery disputes. When an amicable resolution is impossible, however, the party seeking to prevent discovery should file a motion for protective order. While many attorneys are familiar with the use of protective orders to prevent disclosure of privileged or confidential documents or information, fewer seem to be aware that a protective order can also protect against disclosure of irrelevant documents or information.
Rule 4:10-3 provides in pertinent part that:
On motion by a party or by the person from whom discovery is sought, the court, for good cause shown or by stipulation of the parties, may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including, but not limited to, one or more of the following: (a) That the discovery not be had; (b) That the discovery may be had only on specified terms and conditions, including a designation of the time or place; (c) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (d) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (e) That discovery be conducted with no one present except persons designated by the court.
Rule 4:10-3 grants broad discretion to the court to take whatever steps are necessary to protect one party’s sensitive information while still allowing the other party the right of discovery. See Alk Assoc. v. Multimodal App. Sys., 276 N.J. Super. 310, 316 (App. Div. 1994). What constitutes good cause is governed by a standard of reasonableness. Lederman v. Prudential Life Ins. Co. of America, 385 N.J. Super. 307, 316 (App. Div. 2006). Among the factors a court considers in determining whether a moving party has established good cause for entry of a protective order, is whether the pretrial discovery sought relates to matters which are or are not in dispute. See Catalpa Investment Group v. Franklin Twp., 254 N.J. Super. 270, 273-274 (Law Div. 1991). Relevant evidence is defined in New Jersey Evidence Rule 401 as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.”
Relevance is an issue at play throughout litigation, not merely at trial. Lack of relevance can and should be used to shield disclosure of information or documents when no privilege can be raised and where the requesting party is seeking information unrelated to the case. A party raising relevance as a shield to disclosure should also request an in camera
review of any documents in question. This allows the court to conduct an analysis of whether the discovery sought is relevant to the case. Objecting to the disclosure of discovery as irrelevant during the discovery process is an efficient way to prevent disclosure of information or documents and preempts discovery issues from rearing their heads at trial.
All litigators should familiarize themselves with Rule 4:10-3 and relevance as a basis for the issuance of a protective order. New Jersey courts can and often do issue protective orders when a party oversteps its bounds and asks for discovery unrelated to the underlying case. Appropriate use of a protective order can cut down on trial issues and even shield disclosure of sensitive information a client does not want disclosed. The next time you think a discovery request is irrelevant—take action. File a motion for a protective order under Rule 4:10-3 and protect your client.