January 24, 2022 – Newman, Simpson & Cohen, LLP’s Litigation Practice Group Obtains Emergent Relief and Overturns Trial Court’s Orders on Appeal, Relieving Client of Costly Electronic Discovery Production Demanded in Non-Party Subpoena

Newman, Simpson & Cohen, LLP was victorious in its appeal on behalf of Symbiont Science, Engineering and Construction, Inc., a non-party embroiled in complex commercial litigation between two other parties.  After the trial court ordered non-party Symbiont to comply with a subpoena requiring the production of voluminous electronically-stored information and to provide extensive deposition testimony, our firm applied to the Appellate Division for permission to file an emergent interlocutory appeal – extraordinary relief, which is rarely granted.  The Appellate Division granted the emergent relief, and, after hearing our arguments, issued a published decision pursuant to which it reversed and vacated the trial court’s orders as to Symbiont.  In ruling in favor of Symbiont, the Appellate Division held that a non-party is not subject to the same broad discovery obligations that a party is subject to.  Therefore, the Appellate Division held that when a party seeks discovery from a non-party, and particularly when the ESI is voluminous, time-consuming, costly to prepare for production, and may implicate issues of privilege and confidentiality, the trial court must consider the relative simplicity in which the information may be supplied by a party, and the availability of less burdensome means to obtain the same information.  Notably, the Appellate Division also forwarded its opinion to the New Jersey Civil Practice Committee for consideration of whether the New Jersey Court Rules should provide for explicit recognition of discovery demands served on non-parties, as do the Federal Rules of Civil Procedure, which were extensively cited in our firm’s appellate briefs.  Trenton Renewable Power, LLC v. Denali Water Sols., LLC, 470 N.J. Super. 218 (App. Div. 2022)