In Berk v. State of New Jersey, No. A-5759-09 (App. Div. May 25, 2011), the trial court dismissed the plaintiff's complaint -- with prejudice -- because she repeatedly failed to appear for her deposition. In affirming, the Appellate Division explained that "[a]lthough we recognize that the dismissal of a party's cause of action with prejudice is a drastic measure that should be applied sparingly, only when no lesser sanction will suffice, we conclude such remedy was warranted here."


The plaintiff was an attorney who had been employed by the Office of the Public Defender from July 1999 through November 2005. At the end of her time in the office she had been promoted to managing attorney in the Office of the Law Guardian. In that role she supervised a number of attorneys. One of the attorneys she supervised was not eligible to practice law in New Jersey, and the plaintiff discovered that he had also been disbarred in New York. After the plaintiff brought those issues to the attention of her supervisors, defendants Lorraine Augostini and Cynthia Samuels, she claimed that they engaged in ongoing harassment of her. In November 2006 the plaintiff filed suit against her supervisors and the Office of the Public Defender, claiming that they had violated the Conscientious Employee Protection Act by terminating her in November 2005 in retaliation for having made the report about the attorney being ineligible to practice law. (There was some dispute about whether the plaintiff was actually terminated, but, based on its disposition of the appeal, the Appellate Division did not have to resolve that issue.)

In August 2008 the plaintiff's complaint was dismissed without prejudice because she did not answer written discovery, and that court order required her deposition to take place before September 22, 2008. The defendants moved for a dismissal with prejudice in June 2009, but the plaintiff provided her written discovery responses and in July 2009 the court vacated the dismissal and extended discovery until December 2009. In its opinion, the Appellate Division chronicled the series of attempts by the defendants to schedule the plaintiff's deposition that began in July 2009. In February 2010, plaintiff's counsel advised defense counsel that the plaintiff had experienced medical problems that prevented her from being deposed. After attempting to schedule the plaintiff's deposition at least seven different times, in April 2010 the defendants moved to dismiss the plaintiff's complaint with prejudice based on her failure to appear for deposition. In addition to outlining their efforts to depose the plaintiff, the defendants argued that her deposition was essential to establish the extent of any medical and psychological conditions the plaintiff was claiming as damages and if they were caused by the defendants' conduct. The plaintiff did not oppose the defendants' motion and the court granted it, noting that there had been no documentation of the plaintiff's medical condition and no evidence as to why she could not appear for deposition.

The plaintiff moved for reconsideration of that order. However, she did not provide her own certification about her medical condition or any explanation for why she had not submitted to her deposition; rather, the plaintiff relied solely on her attorney's certification in which he outlined the back and forth communications he had with defense counsel about her deposition and medical condition. The trial court denied the plaintiff's motion for reconsideration.

The Appellate Division began its analysis by noting that a trial court has inherent discretionary power to impose sanctions for a party's failure to provide discovery, and it reviewed Rule 4:23-5(b) and the remedies it provides to courts in such situations. After reviewing governing precedent about the imposition of sanctions, the Appellate Division concluded that "the motion judge did not abuse her discretion when she dismissed plaintiff's complaint with prejudice." First, the Appellate Division pointed out that the deposition of the plaintiff was essential to the defendants' ability to defend themselves in the case. The court described why the deposition was essential and declared that the plaintiff's failure to appear for deposition not only prejudiced the defendants but it also was critical to the case. The Appellate Division also rejected the plaintiff's argument that the trial court erred in not imposing lesser sanctions, stressing that the defendants had filed three separate motions to dismiss with prejudice based on the plaintiff's failure to provide discovery. Specifically, the Appellate Division observed that "the lesser sanctions of dismissal without prejudice or barring plaintiff from testifying strike us as wholly inadequate to address the problem defendants faced in not having secured plaintiff's deposition testimony."

The Appellate Division also agreed with the trial court's rejection of the plaintiff's reliance upon her medical condition because she had not provided any records or documentation as to how or why her condition prevented her from being deposed. Finally, the Appellate Division emphasized that the plaintiff knew about the requirement that she submit to a deposition, as her attorney had advised her about it and she never claimed she did not know about the court orders requiring her deposition. The Appellate Division concluded that "in the end we are satisfied that plaintiff's failure to appear for her deposition over a three-year period -- after seven notices of deposition had been served -- warranted the extreme sanction of dismissal."