The Committee on Opinions recently approved for publication an October 27, 2017 Atlantic County Law Division Opinion in Liberty Mutual Insurance Co. v. Borgata Hotel Casino & Spa, which bears upon insurance carriers’ and defense attorneys’ ability to investigate claims prior to the institution of suit. The decision makes clear that all parties’ ability – including, most significantly, insurance carriers and their attorneys’ – to seek discovery before suit is filed is limited to situations where there exists a genuine risk that testimony would be lost or evidence destroyed before suit can be filed. The decision is not binding on New Jersey courts but can be cited as persuasive authority.
Liberty Mutual, on behalf of its insured homeowner, Evan Sophias, filed a petition for pre-suit discovery, pursuant to Rule 4:11-1 of the New Jersey Rules of Court, to investigate a potential claim stemming from an incident wherein Mr. Sophias allegedly knocked the claimant, Pasquelina Rivelli, to the ground at the Borgata Hotel Casino & Spa. Liberty Mutual sought to obtain video surveillance and security reports from the Borgata. The casino opposed the petition, arguing that Liberty Mutual did not express an appropriate reason under Rule 4:11-1 for which it was entitled to conduct discovery.
Rule 4:11-1 provides that a person who desires to perpetuate his or her own testimony or that of another person or preserve any evidence or to inspect documents or property or copy documents may file a verified petition in the Superior Court, seeking an appropriate order. The petitioner must show 1) that the petitioner expects to be a party to an action cognizable in a court of this State but is presently unable to bring it or cause it to be brought; 2) the subject matter of such action and the petitioner’s interest therein; 3) the facts which the petitioner desires to establish by the proposed testimony or evidence and the reasons for desiring to perpetuate or inspect it; 4) the names or a description of the persons the petitioner expects will be opposing parties and their addresses so far as known; 5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each; and 6) the names and addresses of the persons having control or custody of the documents or property to be inspected and a description thereof.
The Court held that Liberty Mutual failed to establish that there was any risk that the surveillance footage and security reports it sought would be destroyed before suit. Pursuant to the Supreme Court’s decision in Petition of Hall By and Through Hall, 147 N.J. 379 (1997), pre-suit discovery may only be sought pursuant to a R. 4:11-1 petition where there exists a genuine risk that testimony would be lost or evidence destroyed before suit could be filed and in which an obstacle beyond the litigant’s control prevents suit from being filed immediately. Accordingly, Liberty Mutual’s petition was denied. The Court also noted that the better practice under R. 4:11-1 was to file the petition under Mr. Sophias’ name rather than in the name of the insurance carrier, but did not dismiss the petition on those grounds.
This decision is noteworthy insofar for distilling the principles under which pre-suit litigation is available. Civil defendants, including their insurance carriers, are often on notice of claims long before suit is filed, and understandably seek information about those claims as soon as possible. However, the Liberty Mutual v. Borgata case is a clear reminder that the ball is still very much in the plaintiffs’ court, and that oftentimes the parties will not have legal redress to seek discovery before suit is filed. Conversely, it is important to remember that in cases where there is a risk of evidence being lost, Rule 4:11-1 remains a viable remedy.