TERRI JANE FREEDMAN v. GREGG MICHAEL GOTTLIEB

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3382-19

TERRI JANE FREEDMAN,

          Plaintiff,

v.

GREGG MICHAEL GOTTLIEB,

          Defendant-Appellant.


                   Submitted October 21, 2021 — Decided November 4, 2021

                   Before Judges Haas and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Essex County, Docket
                   No. FM-07-1773-12.

                   Gregg Michael Gottlieb, appellant pro se.

                   Thomas B. Seltzer, respondent pro se.

PER CURIAM
      Defendant Gregg Michael Gottlieb appeals from a February 13, 2020

order awarding Thomas Seltzer counsel fees related to a motion to quash a

subpoena. We affirm.

      We glean the following facts from the record. In June 2013, defendant

divorced plaintiff Terri Jane Freedman. Defendant was required to pay alimony.

The parties' agreement contained a cohabitation provision based on Gayet v.

Gayet,  92 N.J. 149 (1983). 1

      In May 2016, defendant filed a motion alleging plaintiff and Seltzer were

cohabiting. In December 2016, the motion judge concluded defendant made a

prima facie showing of cohabitation and scheduled a plenary hearing.  2 On

January 4, 2017, defendant's counsel served a subpoena on Seltzer seeking

eighteen categories of documentation, including Seltzer's:       income; banking

statements and registers; electronic accounts; loans; insurance policies; credit

cards; credit applications; agreements with plaintiff; real estate; leases; written

communications with plaintiff; photographs, video and audio recordings relating



1
   The parties' agreement is not included in the appendices; the cohabitation
provision is not quoted in the briefs.
2
   Although defendant and Seltzer's briefs note this decision occurred in
December 2016, defendant did not provide a transcript of the proceedings or a
copy of the actual order.
                                                                             A-3382-19
                                        2
to plaintiff and her children; post office forwarding address cards; passport;

payments for "anything by [him] and/or plaintiff on each other's behalf[;]"

calendars; and mobile telephone.

      Seltzer retained counsel who moved to quash the subpoena and requested

counsel fees. At oral argument, defendant's counsel claimed that although the

order scheduling the hearing contained "nothing . . . specifically concerning

subpoenas," he had called the judge's law clerk and "understood that the order

would allow for subpoenas . . . ." The motion judge found the subpoena "overly

burdensome" and "harassing." Further, "most of [the subpoena] is absolutely

irrelevant to whether or not . . . Seltzer is paying any shelter expenses or . . .

anything that could be considered remotely close to a [cohabitation] situation."

The judge found defendant should have first sought discovery from plaintiff,

            [a]nd if [plaintiff's] responses are insufficient or not
            forthcoming, . . . only then I'm going to allow a . . . very
            limited amount of discovery . . . limited to anything
            . . . Seltzer may have paid on behalf of [plaintiff's]
            shelter expenses. Because that's really what's at issue.

At the conclusion of the hearing plaintiff's counsel asked the judge to set a date

to exchange discovery answers.




                                                                            A-3382-19
                                         3
      On March 3, 2017, the judge granted the motion to quash the subpoena

"as overly burdensome, harassing and irrelevant pursuant to R[ule] 4:10-3." The

order stated:

            Defendant is entitled to obtain discovery relating to . . .
            Seltzer's payment of [p]laintiff's shelter expenses.
            Defendant must use a less intrusive mechanism in order
            to obtain this information. Defendant may serve
            discovery on [p]laintiff and only in the event [p]laintiff
            is either not forthcoming or provides insufficient
            responses may [d]efendant re-serve discovery upon . . .
            Seltzer that is specifically limited to . . . Seltzer's
            payment of [p]laintiff's shelter expenses.

The order also required plaintiff and defendant to serve answers to discovery no

later than March 17, 2017, and granted Seltzer counsel fees subject to the

submission of a certification of services by his attorney.

      On February 13, 2020, the judge entered an order, nunc pro tunc to March

3, 2017, granting Seltzer $4,610.40 in counsel fees. The judge analyzed the

Rule 5:3-5(c) factors and found they weighed in Seltzer's favor. She found

defendant was employed and capable of paying counsel fees. She found he "did

not act in good faith with respect to discovery requests" because he "failed to

employ less intrusive means by which to obtain information." The judge noted

"Seltzer incurred substantial fees in litigating the [m]otion . . . totaling

$6,286.40" and successfully quashed the subpoena.


                                                                          A-3382-19
                                        4
      On appeal, defendant argues the judge erred because: (1) she did not

provide guidance or limitations regarding the issuance of subpoenas after

ordering the plenary hearing; (2) in quashing the subpoena, the judge dep rived

defendant of his right to discovery; (3) Seltzer was not a party to the litigation

and therefore lacked standing to seek counsel fees; and (4) Seltzer did not

demonstrate a financial need for an award of counsel fees.

                                        I.

      "[P]ursuant to Rule 4:10-2(a), parties may obtain discovery regarding any

non-privileged matter that is relevant to the subject of a pending action or is

reasonably calculated to lead to the discovery of admissible evidence." In re

Liquidation of Integrity Ins. Co.,  165 N.J. 75, 82 (2000). Relevant evidence is

evidence "having a tendency in reason to prove or disprove any fact of

consequence to the determination of the action." N.J.R.E. 401.

      A nonparty may be compelled by subpoena to produce "books, papers,

documents, electronically stored information, or other objects designated

therein." R. 1:9-2. However, "the scope of discovery is not infinite." K.S. v.

ABC Pro. Corp.,  330 N.J. Super. 288, 291 (App. Div. 2000); see also Serrano v.

Underground Utils. Corp.,  407 N.J. Super. 253, 267 (App. Div. 2009). In

exercising its discretion over the discovery process a trial court should


                                                                            A-3382-19
                                        5
"balanc[e] the beneficial effects of discovery against its disadvantages." State

ex rel W.C.,  85 N.J. 218, 224 (1981). To this end, the trial court may "quash or

modify the subpoena . . . if compliance would be unreasonable or oppressive

. . . ." R. 1:9-2. See also R. 4:10-3 (permitting the court to enter "any order that

justice requires to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense"). Rule 4:10-3(a) and Rule 4:10-3(d),

respectively, allow a court to determine that "discovery not be had" or "that the

scope of the discovery be limited to certain matters."

      Here, the court's limitation of discovery was not an abuse of discretion.

Although we lack the parties' motions, certifications, and the judge's order or

findings pertaining to scheduling the plenary hearing, the record is clear that the

parties had hardly initiated discovery before defendant's counsel served the

subpoena on Seltzer. Therefore, the judge's ruling that defendant first seek

discovery from plaintiff before subpoenaing Seltzer was not an abuse of

discretion.

      For these reasons, we also reject defendant's argument the court deprived

him of discovery. The judge did not foreclose discovery from Seltzer , and the

March 2017 order provided a road map for the conduct of discovery . This

argument lacks merit. See R. 2:11-3(e)(1)(E).


                                                                              A-3382-19
                                         6
                                       II.

      As to the counsel fee issue, Rule 4:42-9(a)(1) notes that an award of fees

in a family action is made pursuant to Rule 5:3-5(c). Rule 5:3-5(c) provides the

court discretion to "make an allowance [of fees] to be paid by any party to the

action . . . ." Seltzer was not a party to this action. Therefore, a counsel fee

award to him pursuant to these rules was impermissible.

      However, the March 2017 order quashed the subpoena pursuant to Rule

4:10-3. This Rule states: "The provisions of R[ule] 4:23-1(c) apply to the award

of expenses incurred in relation to [a Rule 4:10-3] motion." Rule 4:23-1(c)

provides as follows:

            [T]he court shall, after opportunity for hearing, require
            the party . . . whose conduct necessitated the motion to
            pay to the moving party the reasonable expenses
            incurred in obtaining the order, including attorney's
            fees, unless the court finds that the opposition to the
            motion was substantially justified or that other
            circumstances make an award of expenses unjust.

      The imposition of discovery sanctions is a discretionary matter. Calabrese

v. Trenton State Coll.,  162 N.J. Super. 145, 151-52 (App. Div. 1978) aff'd,  82 N.J. 321 (1980) (citing Lang v. Morgan's Home Equip. Corp.,  6 N.J. 333

(1951)). Further, Rule 4:23-1(c) is not limited to the parties. For these reasons,




                                                                            A-3382-19
                                        7
the award of counsel fees to Seltzer was appropriate notwithstanding the judge's

application of the Rule 5:3-5(c) factors.

      Finally, we reject defendant's assertion Seltzer had to first demonstrate a

need for an award of counsel fees.          The discovery rules contain no such

language.    Defendant's bad faith amply supports the judge's decision to

compensate Seltzer for the motion to quash.

      Affirmed.




                                                                           A-3382-19
                                        8