Consumer Fraud Discovery in Lawsuits

New Jersey Court Rules provide that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. See Rule 4:10-2. The public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation is the policy underlining the New Jersey Discovery Rules. See Abtrax Pharmaceuticals v. Elkinssinn, Inc., 139 N.J. 499, 512 (1995). The effect of the discovery rules cite that, in effect, the discovery rules were designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments rest upon the real merits of the causes and not upon the skill and maneuvering of counsel. See Payton v. NJ Turnipike Authority, 148 N.J. 524 (1997).

Discovery, however, is intended to lead to facts supporting or opposing an asserted legal theory; it is not designed to lead to formulation of a legal theory. Energy Rec. v. Dept. of Environmental Protection, 320 N.J. Super 59, 64 (App. Div. 1999). The relevant standard of the Court Rules does not relate only to matters which would necessarily be admissible in evidence, but includes information reasonably calculated to lead to admissible evidence respecting the cause of action or a defense. See Comments to New Jersey Court Rules 2000, R. 4:10-2, Comment 2, Page 1203.

This analysis was conducted by the Supreme Court in Wilson v. Hess, 168 N.J. 236 (2001), where the trial judge’s decision to limit the plaintiff discovery requests was overturned by the Appellate Division.

In Wilson, the plaintiffs alleged that the intentionally set gas prices to drive them out of business in violation of the Uniform Commercial Code, Sections N.J.S.A. 12A:2-103 (1)(b). The Court specifically held that
“it has been recognized that one’s state of mind is seldom capable of direct proof and ordinarily must be inferred from circumstances properly presented and capable of being considered by the Court . . . when a person’s intentions were not the proof from what he said, but they may be inferred from all that he did and said and from all the surrounding circumstances of the situation under investigation.” Id. at 246.

Courts have also held that:

In fraud cases the plaintiff is afforded considerably wider latitude in the discovery process than in other cases, in order to meet the heavy burden of proof require in a fraud claim. Pate v. Grady Buick 678 So. 2d. 762 (Ala. 1996). See also Wilson v. Hess, 168 N.J. 236 (2001).

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