Rule 4:11 and Personal Injury

Liberty mutual insurance company v.   Borgata Hotel Casino and spa. New Jersey law division docket L – 1461- 16 approve for publication October 23, 2018.

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

Rule 4:11 Limits Its Use to Circumstances Where There’s A Genuine Risk the Testimony or Evidence

In this case a person was injured at the Borgota Hotel and Casino. Liberty Mutual, insurance company for that injured individual, filed a petition requesting pre-suit discovery in the form of video surveillance of the location in the casino where the person was injured. The casino did not provide the video and as a result the insurance company filed suit. The casino indicated it would not turn over the video without a subpoena. The casino argued also that pre-litigation discovery was inappropriate and Rule 4:11-1 did not support same.

The trial judge determined that the lawsuit was filed to protect the interests of the insured as opposed to the insurance company because the surveillance really important to the case. The trial judge initially criticize the procedure Liberty Mutual used to file suit however it wanted to address the issue and the substance of the claim for pre-suit discovery over the form of the proper or improper procedural steps taken.

The court also recognize that it type of request for pre-suit occurred often in Atlantic County given the casino industry’s significant video surveillance existing on their property and plaintiffs’ intentions of preserving evidence prior to suit being filed. The judge recognize often that  request are denied because it recognizes that those claimants are merely concerned with conducting pre-suit discovery and preserving evidence that could be lost or destroyed prior to filing suit.  The court stated that rule 4:11 limits its use to circumstances where there’s a genuine risk the testimony or evidence could be lost or destroyed prior to Sue being filed. The “recognize this is not the case with regards to the casino industry surveillance videos because they must be preserved”.  The court went on to review the Federal Rules of Evidence because this rule was derived from that same case law.  The trial judge was looking for plaintiff here  to outline specific circumstances where the evidence would be destroyed such as if the building was being destroyed or the casino was being closed. He found those facts would constitute special circumstances that would entitle the insurance company could or should to the video surveillance or security reports prior to the suit being filed. Liberty mutual in this case did not present any facts which would establish a genuine risk that the evidence would be destroyed prior to Sue being filed. As a result Rile 4:11-1 does not apply to this case/situation and as a result the petition to obtained pre-suit discovery was denied.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office