Compelling discovery in New Jersey: the two-stage dismissal that ends cases

New Jersey does not really have a motion to compel in the ordinary sense. It has an escalating machine under R. 4:23-5 that starts by striking your pleading without prejudice and, sixty days later, does it with prejudice.

The escalation is largely automatic. What stops it is a motion to vacate, a fee, and a certification that the discovery has actually been provided.

The ordinary motion to compel

For depositions, R. 4:23-1(a) is the vehicle:

If a deponent fails to answer a question propounded or submitted under R. 4:14 or 4:15, or a corporation or other entity fails to make a designation under R. 4:14-2(c) or 4:15-1, the discovering party may move for an order compelling an answer or designation in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

And R. 4:23-1(b) closes the obvious gap:

For the purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.

Fees are the default either way. R. 4:23-1(c):

If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party opposing the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified …

Note "shall" in both directions. Losing a motion to compel in New Jersey exposes you to the other side's fees just as winning one exposes them to yours.

For written discovery, the machine starts

For interrogatories, document demands and physical examinations, the route is R. 4:23-5, and R. 4:23-5(c) makes the motion to compel an optional first step:

Motion to Compel. Prior to moving to dismiss pursuant to subparagraph (a)(1) of this rule, a party may move for an order compelling discovery demanded pursuant to R. 4:14, R. 4:18 or R. 4:19. An order granting a motion to compel shall specify the date by which compliance is required. If the delinquent party fails to comply by said date, the aggrieved party may apply for dismissal or suppression pursuant to subparagraph (a)(1) of this rule by promptly filing a motion to which the order to compel shall be annexed, supported by a certification asserting the delinquent party's failure to comply therewith.

"May" — it is not a prerequisite. A party can go straight to the dismissal motion.

Stage one: dismissal without prejudice

R. 4:23-5(a)(1):

If a demand for discovery pursuant to R. 4:17, R. 4:18, or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may … move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. The motion shall be supported by an affidavit reciting the facts of the delinquent party's default and stating that the moving party is not in default in any discovery obligations owed to the delinquent party. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice.

Two conditions on the moving party that are easy to miss: an affidavit reciting the default, and a statement that the movant is not itself in default. A party behind on its own discovery cannot run this play.

Then the notification duties, which fall on the delinquent party's own attorney:

Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore. If the delinquent party is appearing pro se, service of the order and notice hereby required shall be made by counsel for the moving party.

Getting restored, and what it costs

The same subparagraph sets the price, and it rises:

The delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice. The motion shall be supported by affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided and shall be accompanied by payment of a $100 restoration fee to the Clerk of the Superior Court, made payable to the "Treasurer, State of New Jersey," if the motion to vacate is made within 30 days after entry of the order of dismissal or suppression, or a $300 restoration fee if the motion is made thereafter. If, however, the motion is not made within 90 days after entry of the order of dismissal or suppression, the court may also order the delinquent party to pay sanctions or attorney's fees and costs, or both, as a condition of restoration.

And the affidavit must recite that the discovery "has been fully and responsively provided" — not that it is coming.

Stage two: dismissal with prejudice

R. 4:23-5(a)(2) starts sixty days later:

If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice.

The delinquent party's attorney has another duty, with a deadline:

The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice.

Attendance is compulsory:

Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. The moving party need not appear but may be required to do so by the court.

And the standard is a presumption of dismissal:

The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

"Shall be granted unless" — the burden is entirely on the delinquent party, and by this stage "exceptional circumstances" is the fallback standard.

Consequences for the lawyer, not just the client

R. 4:23-5(a)(3) is unusual in aiming at counsel directly:

If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule. If the court is required to take action to ensure compliance or the motion for dismissal or suppression with prejudice is denied because of extraordinary circumstances, the court may order sanctions or attorney's fees and costs, or both.

The same paragraph requires every motion under the rule to be "accompanied by an appropriate form of order", and all (a)(1) affidavits to include "a representation of prior consultation with or notice to opposing counsel or pro se party as required by R. 1:6-2(c)."

Finally: "An order of dismissal or suppression shall be entered only in favor of the moving party." The relief is party-specific, not global.

Expert reports

R. 4:23-5(b) is short and carries real trial consequences:

Failure to Furnish Expert's Report. The court at trial may exclude the testimony of a treating physician or of any other expert whose report is not furnished pursuant to R. 4:17-4(a) to the party demanding the same.

Note that it reaches treating physicians, not only retained experts.

The sequence at a glance

A short checklist

1. Confirm you are not in default yourself before moving — the affidavit has to say so.
2. Consider the optional motion to compel first, and make sure any order specifies a compliance date; that date is what the next motion is built on.
3. If you are the delinquent party, act inside 30 days. The restoration fee triples afterwards, and sanctions become available after 90 days.
4. Do not move to vacate until the discovery is actually complete. The affidavit must say it has been fully and responsively provided.
5. Counsel: serve the client immediately with the order and the Appendix II-A notice, by regular and certified mail.
6. Diarise 60 days from the without-prejudice order — that is when the with-prejudice motion becomes available.
7. File the (a)(2) affidavit at least 7 days before the return date, with the Appendix II-B notice.
8. Appear on the return date. It is mandatory for the delinquent party or their attorney.
9. On a deposition dispute, use R. 4:23-1 — and remember fees run against the loser either way.
10. Furnish expert reports on time, including treating physicians', or the testimony can be excluded at trial.

Where these rules live

• N.J. Ct. R. 4:10-3 — Protective Orders
• N.J. Ct. R. 4:17-4 — Form, Service and Time of Answers
• N.J. Ct. R. 4:23-1 — Motion for order compelling discovery
• N.J. Ct. R. 4:23-2 — Failure to Comply With Order
• N.J. Ct. R. 4:23-5 — Failure to Make Discovery
• N.J. Ct. R. 4:24-2 — Motions required to be made during discovery period

This page explains what the rules say. It isn't legal advice. Appendices II-A and II-B, and R. 1:6-2(c), sit outside this site's New Jersey corpus, which covers Part IV.