On February 12, 1951, the Supreme Court decided Lang v. Morgan’s Home Equipment Corp., 6 N.J. 333 (1951).  The Court’s unanimous opinion, written by Chief Justice Vanderbilt, appears to be the first decision from the Court relating to principles of sanctions for discovery violations.

 The case came to the Court after the Essex County Court dismissed defendant’s counterclaim for failure to comply with an order requiring defendant to produce certain books and records in discovery.  As Chief Justice Vanderbilt observed, “[t]he court did state, however, that while the defendant had failed to obey the order its conduct was not contumacious.”

Defendant appealed to the Appellate Division, but the Supreme Court certified the appeal for the Court’s own consideration, as the Court did somewhat frequently in the years immediately following the adoption of the 1947 Constitution.

 The Court’s opinion, which has been cited over one hundred times since, contains strong language about the importance of proper conduct in and respect for discovery.  “Liberal procedures for discovery in preparation for trial are essential to any modern judicial system in which the search for truth in aid of justice is paramount and in which concealment and surprise are not to be tolerated….  [Court Rules] for discovery are designed to insure that the outcome of litigation in this State shall depend on its merits in the light of all of the available facts, rather than on the craftiness of the parties or the guile of their counsel.”

 Chief Justice Vanderbilt went on to state that “As with all rules it is necessary that there be adequate provisions for the enforcement of the rules as to discovery against those who fail or refuse to comply.  Sanctions are peculiarly necessary in matters of discovery and the power to invoke them is inherent in our courts…. subject only to the requirement that they be just and reasonable in the circumstances.”  Dismissal of the counterclaim for failure to make discovery was then (and still is, under the current version of the Court Rules) “one of the consequences specifically mentioned in [the applicable] rule.”

However, the Court cautioned that “[t]he dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except in those cases where the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious.  [Citations to an Appellate Division and a Sixth Circuit case omitted].  Where the circumstances are less aggravated the court should give the offending party another opportunity at a short day to comply with the order.”

Ultimately, the Court deferred to the trial court’s finding that defendant’s conduct had not been contumacious.  “Since the court below expressly stated that the defendant’s conduct was not contumacious, we are inclined to the view that the penalty imposed was more severe than necessary and that a further opportunity to comply should have been granted before suppressing its counterclaim.” 

But lest anyone have misunderstood, the Chief Justice closed by saying “it is apparent that the defendant has not complied with the spirit of the new rules with respect to discovery whereas almost all of the litigants in our courts and their counsel have.  Dilatory and obstructive tactics are not to be tolerated in preparation for trial any more than they would be at the trial itself.  They are as dangerous as they are futile.”  These are still words to live by.