Cavallaro v. Jamco Property Mgt.

• Decision Date: 23 October 2000
• Citation: 760 A.2d 353,334 N.J. Super. 557
• Parties: Tony CAVALLARO, Plaintiff-Respondent, v. JAMCO PROPERTY MANAGEMENT, Defendant-Appellant, and JML Landscaping, Inc., and Village Commons, Defendants.
• Court: New Jersey Superior Court

760 A.2d 353

334 N.J. Super. 557

Tony CAVALLARO, Plaintiff-Respondent, v. JAMCO PROPERTY MANAGEMENT, Defendant-Appellant, and JML Landscaping, Inc., and Village Commons, Defendants.

Superior Court of New Jersey, Appellate Division.

Argued October 4, 2000.

Decided October 23, 2000.

Cynthia A. Satter argued the cause for appellant (Stephen E. Gertler, Wall, attorney; Ms. Satter and Belinda V. Skeen, on the brief).

Melissa H. Luce, Morristown, argued the cause for respondent (Stephen S. Weinstein, Morristown, attorney; Ms. Luce, on the brief).

Before Judges BAIME, CARCHMAN and LINTNER. The opinion of the court was delivered by CARCHMAN, J.A.D

This appeal requires us to address the recurring and vexing problem of violations of the discovery subpoena and notice provisions of R. 4:14-7(c) (the Rule) and the appropriate sanction for violating the Rule. In this case, the violation resulted in defendant obtaining privileged medical and psychiatric records. Judge Bernhard imposed a sanction disqualifying counsel from further representation of defendant in the underlying matter. We granted leave to appeal and now conclude that the judge's findings of a violation of the Rule were supported by the record. Under the circumstances presented, disqualification was an appropriate sanction and not an abuse of discretion.

I.

The issue arises in the following factual and procedural context. Following a slip and fall on an icy sidewalk outside of his condominium, plaintiff Tony Cavallaro filed a personal injury action for damages alleging permanent injury to his ankle. During plaintiff's deposition, his attorney instructed him not to answer certain inquiries regarding prior treatment for depression. After plaintiff's motion for a protective order was denied with limiting conditions, plaintiff answered questions concerning his medications and doctors' identities, and executed releases for certain medical and employment records previously subpoenaed by defendant. Although the judge had advised that defendant could subpoena records for any additional information needed and, anticipating an objection, that plaintiff could object pursuant to R. 4:10-3, defendant did not request any additional authorizations to release records concerning plaintiff's depression.

On March 2, 2000, defendant served subpoenas duces tecum and notices of depositions, returnable on March 10, 2000, on five additional medical and health services providers, including an infectious diseases specialist, a psychiatrist, and two psychologists (March 10 doctors' subpoenas), as well a vocational rehabilitation organization. The depositions were scheduled for defense counsel's office in Wall Township, Monmouth County, notwithstanding that the witnesses were located in Hunterdon and Somerset Counties. Although copies of the subpoenas and notices were also served on plaintiff's counsel, unbeknownst to plaintiff, the originals were accompanied by a cover letter which provided:

Attached please find a Subpoena and a deposition notice which requires your appearance in my office on March 10, 2000. At that time, you are required to produce copies of the following documents regarding [plaintiff];

1. All patient information forms, including history documents;

2. All medical records;

....

However, as a convenience to you, if you would like to forward copies of these documents to my attention, then your appearance would not be necessary. The subpoenaed evidence may not be produced or released until the date specified for the taking of the deposition. If you are notified that a motion to quash the subpoena has been filed, you may not produce or release the evidence until either ordered to by the court, or all the parties consent thereto....

In bold, capitalized type immediately following the above paragraph, the letter stated:

IF YOU WOULD LIKE TO AVOID APPEARING IN MY OFFICE ON MARCH 10, 2000 AND WOULD RATHER FORWARD THE COPIES TO ME THAT WOULD BE ACCEPTABLE.

Please contact this office if you will be attending the deposition. Otherwise, I will assume that the above is agreeable.

On March 9, 2000, plaintiff contacted one of the psychologists, Dr. Kate Riley, to obtain her fax number to send her a copy of plaintiff's motion for a protective order and to quash the subpoena. The doctor informed counsel that consistent with the cover letter sent with the subpoena, she had already forwarded a summary of plaintiff's treatment records to defendant's attorney. Dr. Riley's "impression was that she had to send the information before March 10 in order to avoid appearing for a deposition on March 10," and she had not understood from the cover letter or subpoena that there was any requirement to refrain from sending the records before the return date. Despite the requirement of the Rule, plaintiff did not receive any "forthwith" notice of defendant's receipt of Dr. Riley's records. The infectious diseases specialist, Dr. Joseph Gugliotta, also received defendant's subpoena cover letter and sent plaintiff's medical records to defendant. Those records were later forwarded to plaintiff on demand.

Upon discovering that Dr. Riley had already released a summary of plaintiff's treatment records, plaintiff immediately filed a motion seeking an order to quash the March 10 subpoenas and a protective order prohibiting any use of information already obtained through those subpoenas. The motion was premised on defendant's failure to comply with the Rule, and in the case of the doctors, that the records sought related to "communications between plaintiff and psychologists and/or psychiatrists" which were protected by the psychologist-patient privilege pursuant to N.J.S.A. 45:14B-28, N.J.R.E. 505, and Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). Counsel also requested that privileged notations regarding plaintiff's psychiatric care and contained within previously subpoenaed records of plaintiff's endocrinologist be redacted. In the alternative, plaintiff sought an in camera review of the March 10 subpoenaed records to determine whether the psychologist-patient privilege should be pierced.

Defendant challenged plaintiff's assertion of privilege, claiming that plaintiff had put his pre-existing illness in issue and that "there [was] no other place for the defense to turn to see if for example, plaintiff made an admission about the happening of the accident, ... or if he made an admission thereafter about his damages."

Following oral argument on the motion, Judge Bernhard concluded that plaintiff's mental health treatment records were privileged and that defendant failed to establish under Kinsella v. Kinsella, 150 N.J. 276, 306-07, 696 A.2d 556 (1997), that plaintiff had effected a limited waiver of the privilege by placing his mental health at issue. He also found that the March 10 doctors' subpoenas were "so violative of the Rules of Civil Procedure and Code of Professional Responsibility that this Court must act—must comment and take independent action," despite defense counsel's explanation that "that is the way we normally do things."

The judge initially observed that the subpoenas failed to comply with R. 4:14-7(b)(1), as they required doctors from other counties to attend depositions in defense counsel's office in Monmouth County rather than in their own counties. The judge also noted that those subpoenas violated R. 4:14-7(b)(2) because each of the doctors qualified as a treating physician, psychologist, or expert and was therefore entitled either to be deposed at his or her residence or place of business or to be compensated for travel and expenses.

More germane to the issue before us, the judge found the subpoenas violated R. 4:14-7(c) because they did not state that the subpoenaed evidence was not to be produced or released until the return date, or, in the event of notice of a pending motion to quash, at anytime absent a court order or consent of all the parties. To the contrary, the judge noted that the cover letter stated, and reiterated in bold letters, that the subpoenaed witnesses could avoid the inconvenience of an appearance by forwarding copies of the subpoenaed documents to defense counsel's office. In sum, Judge Bernhard concluded:

Defense counsel's attempt at obtaining medical information concerning the plaintiff was an egregious violation of the Rules.... The purported subpoenas were a willful attempt to gain information in an unpermitted fashion. It was obviously a willful violation of the Rules of Civil Procedure. The subpoenas purported to require attendance at a location other than permitted. Inappropriate service was made and the cover letter spelled out counsel's true intent, that is to have the physicians and psychologists merely forward information to him.

Finally, the judge found that defense counsel's subpoena practice violated both RPC 3.4(c) and RPC 4.1 by "knowingly violat[ing] the Rules ... and ma[king] false statements to the person[s] to whom he addressed the documents." Noting that defendant had already been provided privileged information as a result of the improper March 10 subpoenas, Judge Bernhard found that "[t]his Court has no other alternative, as a result of counsel's egregious conduct, than to quash the subpoenas and disqualify counsel from further representation of the defendant in this case." The judge ordered that any materials obtained as a result of those subpoenas, including those materials already sent by Drs. Riley and Gugliotta, be returned without defense counsel or defendant's carrier making copies. Defense counsel was ordered to arrange for substitute counsel by April 24, 2000.

II.

We briefly address the issue of privilege. There is no legitimate argument that the doctors' records were anything other than privileged under the psychologist-patient, N.J.S.A. 45:14B-28; N.J.R.E. 505, or physician-patient privileges, N.J.S.A. 2A:84A-22.2; N.J.R.E. 506. As such, the records were subject to an...