Kerr v. Able Sanitary and Environmental Services, Inc

In Kerr v. Able Sanitary and Environmental Services, Inc., 295 N.J.Super. 147, 158-59, 684 A.2d 961 (App.Div.1996), the Court examined our permissive deposition rules, designed to facilitate the adversarial process by promoting full and fair discovery of all relevant evidence, see, e.g., Wolosoff, supra, 196 N.J.Super. at 562, 483 A.2d 821, and carved out a narrow exception to that broad convention in the context of opposing attorney depositions, which "frequently interfere with the adversarial process by inviting delay, disruption, harassment, and perhaps even disqualification of the attorney from further representation of the client in the underlying litigation." Kerr, supra, 295 N.J.Super. at 154-55, 684 A.2d 961. In view of "the pernicious effects of . . . compelling attorneys to submit to depositions while representing a client in the case," we held, as a matter of public policy, that a party's request to depose opposing counsel gives rise to presumptive "good cause" for a protective order under R. 4:10-3(a). 295 N.J.Super. at 157-58, 684 A.2d 961. The burden then shifts to the deposition proponent to overcome the presumption by demonstrating that "the propriety and need for the deposition outweigh the possible disruptive or burdensome effects that the prospective deposition will have on the underlying litigation" because the information sought is both: (1) "relevant to the underlying action"; (2) "unlikely to be available by other less oppressive means." Id. at 158-59 & n. 6, 684 A.2d 961.