Pre-Complaint Discovery: An Underutilized, Underrated and Unknown Tool

New Jersey Law Journal

Suppose there is a hit-and-run in a sparsely populated area. You are retained as counsel to represent the victim, who sustained significant property damage to her vehicle and debilitating personal injuries. After a preliminary investigation, you learn that there are no witnesses to the incident, but there is a nearby gas station equipped with video cameras that may have footage of the hit-and-run and from which you may be able to identify the other driver. The gas station refuses to share its video footage with you. At this point, you could file a "John Doe" complaint and then serve a subpoena on the gas station. But the fastest and cheapest way to obtain the video is by filing a petition for pre-suit discovery under New Jersey Rule 4:11-1.

Under New Jersey Rule 4:11-1, when a person expects to be a party to an action cognizable in New Jersey, but is missing a key piece of information that will allow her to proceed in court, she may file a verified petition seeking an order entitling her to that information. There are several advantages to filing a verified petition for discovery over filing a John Doe complaint and serving nonparty discovery. First, the verified petition will be accompanied by an order to show cause, which is one of the quickest ways to obtain relief in New Jersey courts. Under New Jersey Rule 4:11-1, a hearing date on the verified petition and order to show cause may be scheduled any time after 20 days from service of the verified petition on any expected adverse parties, or parties from whom a litigant seeks pre-complaint discovery. The nonparty subpoena process, on the other hand, is usually not so short. Second, the entity from whom a litigant seeks pre-suit discovery may file a response to the verified petition, but that is it. Were a party to issue a subpoena to obtain non-party discovery, however, she may face a motion for protective order, the resolution of which will require a full round of motions practice.

There is very little case law on R. 4:11-1, but the rule "is entitled to liberal construction," and a court must grant a verified petition if it finds that doing so "may prevent a failure or delay of justice," as in Sturm v. Feifer, 186 N.J. Super. 329, 333 (App. Div. 1982). In reliance on the sparse case law available on pre-suit discovery, the comments to R. 4:11-1 state that the rule is not meant to authorize pre-suit discovery solely "to ascertain potentially liable defendants." But that commentary is incorrect, as the case law does not actually make that limitation. Rather, the courts hold only that R. 4:11-1 is "not intended to authorize pre-suit discovery for the purpose of assisting a prospective plaintiff in acquiring facts necessary to frame a complaint," as held in Johnson v. Grayce Tighe , 365 N.J. Super. 237, 240 (App. Div. 2003). In the hit-and-run example, the plaintiff would have all of the information she needs to frame a complaint, except for the identity of the other driver. Given the liberal construction of R. 4:11-1, she would likely be permitted to obtain information that could identify the other driver.

Federal Rule of Civil Procedure 27 also provides a vehicle by which to obtain pre-suit discovery, and the language of the two rules is substantively the same. But while New Jersey Rule 4:11-1 and Federal Rule 27 are analogous, the federal courts do not afford Rule 27 the same liberal construction as the state courts afford R. 4:11-1. Not only does the U.S. Court of Appeals for the Third Circuit hold that Federal Rule 27 "'is not a substitute for discovery,'" but recent case law from the District of New Jersey holds that under Rule 27, "prospective plaintiffs may not depose a witness to gain information for a potential complaint," see In re Tsymbal, No. 11-cv-3054 (D.N.J. July 16, 2012) (quoting Ash v. Cort , 512 F.2d 909, 912 (3d Cir. 1975)). Rather, according to at least one federal court in New Jersey, Rule 27 "provides a means to preserve evidence relevant to an actual rather than a hypothetical claim that a prospective Plaintiff cannot file for some reason beyond her control," and prospective plaintiffs may avail themselves of Rule 27 only "to preserve evidence that may be lost or destroyed before they can properly bring suit." New Jersey Rule 4:11-1 does not contain this limitation and neither New Jersey courts nor the rule itself regard pre-suit discovery merely as a means to prevent spoliation of evidence.

Federal Rule 27 contains two additional limitations not present in New Jersey Rule 4:11-1. First, under Rule 27, a potential plaintiff may perpetuate testimony only about a matter "cognizable in a United States court." In other words, the potential plaintiff must show that "in the contemplated action, for which the testimony is being perpetuated, federal jurisdiction would exist and thus is a matter that may be cognizable in the federal courts" as in Dresser Industries v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979). New Jersey Rule 4:11-1, however, only requires the petitioner to show that she "expects to be a party to an action cognizable in a court" of New Jersey. As the state courts are courts of general jurisdiction, a R. 4:11-1 petitioner would probably not need to assert a basis for subject matter jurisdiction over the contemplated action, as she would in federal court under Rule 27.

Second, a Rule 27 applicant must file her pre-suit discovery petition "in the district court for the district where any expected adverse party resides." So even if an expected adverse party were subject to personal jurisdiction in the federal court where the petition is filed, venue in that court may be improper if none of the expected adverse parties are residents of that district. This limitation would be most applicable when the expected adverse parties are subject to specific jurisdiction in a particular district because of their conduct—despite that jurisdiction, the parties' lack of residency in that district would protect them from the reach of Rule 27.

If a California entity committed a tort in New Jersey, for example, the potential plaintiff would not be able to seek pre-suit discovery under Rule 27 in the District of New Jersey unless another expected adverse party resided in New Jersey. Rather, it would have to file its petition in California. New Jersey Rule 4:11-1 does not contain this "venue" limitation.

Thus, the New Jersey Rules of Court afford litigants a little-known, but extremely powerful tool by which to obtain information before filing a lawsuit. The Federal Rules provide a similar device, but it is subject to several constraints and is not as liberally construed in favor of discovery as the New Jersey counterpart. Through R. 4:11-1, potential plaintiffs may obtain the last piece of information they need to file suit, such as the identity of a tortfeasor. Pre-suit discovery may also give parties the information they need to attempt to reach an early resolution of their dispute or arm parties with the necessary information to start a coherent dialogue with potentially adverse parties.

“Pre-Complaint Discovery: An Underutilized, Underrated and Unknown Tool,” by Ethan M. Simon was published in the New Jersey Law Journal on June 5, 2017. To view the article online, please click here.

Reprinted with permission from the June 5, 2017, edition of the New Jersey Law Journal © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, or visit