Defendant Can’t Insist on an “I Go First” Deposition

A order granting summary judgment was reversed because the plaintiff was unable to take depositions of relevant witnesses:

Several claims by a former Newark, N.J., municipal court judge’s alleging disability bias and other abuses fueled her discharge were wrongly dismissed because she didn’t get a chance to collect potentially helpful evidence, a state appeal court ruled Wednesday.

Vanessa Williams Powell wasn’t able to depose the defendants in her suit, which included the city’s mayor, personnel director, chief municipal court, and council president, the New Jersey Appellate Division said.

Patrick Dorrian, Deprived of Depositions, Judge Wins Wrongful Firing Suit Revival (bloomberglaw.com)(Mar. 22, 2023).

The court wrote:

“Here, plaintiff twice served notices to depose defendants…. Defendants took the position that plaintiff should be deposed first.  While that may be common practice, defendants have no right to postpone their depositions because they wish to depose plaintiff first.”

Powell v. City of Newark, 2023 WL 2590400  (N.J.Sup. Ct. App. Div. Mar. 22, 2023)(unreported).

The New Jersey Rules stated: “Unless the court upon motion … orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not, of itself, operate to delay any other party’s discovery.”

Maryland’s Rule 2-401(b), governing the sequence and timing of discovery, is similar: “Unless the court orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery. The court may at any time order that discovery be completed by a specified date or time, which shall be a reasonable time after the action is at issue.”

Fed.R.Civ.P. 26(d)(3) provides: “Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.”

The New Jersey court remanded for completion of discovery, while affirming dismissal of certain counts.