Published Appellate Court Opinions

The sole issue raised in this administrative appeal is whether an appointing authority may unilaterally reduce a sanction from major to minor discipline after the employee is served with a Final Notice of Disciplinary Action (FNDA). Because the Civil Service Act and accompanying regulations generally permit an employee to appeal only major disciplinary actions, the reduction in sanction divests the Civil Service Commission of jurisdiction to hear the employee's appeal from an adverse administrative decision.

The court reviewed the statutory and regulatory schemes and rejected the employee's argument that the governing provisions prohibit the appointing authority from reducing the penalty after an FNDA has been issued. The court also found unavailing the employee's contention that the reduction in penalty and resulting divestiture of the Commission's jurisdiction violated his right to due process. In doing so, the court distinguished the present matter – involving a reduction in penalty – from its prior decision in Hammond v. Monmouth County. Sheriff's Department, 317 N.J. Super. 199 (App. Div. 1999), which held an appointing authority may not add charges to the FNDA.

Because the court determined no provision of the Act or accompanying regulations proscribed the appointing authority's inherent discretion to reduce a penalty after an FNDA has been issued to a Civil Service employee, the court concluded the Commission properly upheld the Administrative Law Judge's initial decision, dismissing the employee's complaint on summary decision for lack of subject matter jurisdiction.

Defendant, Michelangelo Troisi, appeals the Law Division order denying his de novo appeal of a guilty finding against him in Princeton Municipal Court for violating N.J.S.A. 39:4-97.3, use of hands-free and hand-held wireless communication devices while driving. At the municipal court trial, defendant argued that the manner in which he was using his cell phone while driving was not a violation of the plain meaning of the statute. Defendant testified and admitted that his conduct in the car required him to divert his attention from steering his vehicle on a public road for enough time to enter his six-digit passcode, open the Google Maps app, and place the cursor in the search window. The municipal court judge found defendant guilty of violating N.J.S.A. 39:4-97.3 and imposed a fine.

Defendant appealed de novo to the Law Division, which found defendant guilty of the traffic violation for substantially the same reasons as the municipal court: defendant's actions in his car exceeded the bounds of the statute.

Applying well-established principles of statutory construction, the court held that making multiple keystrokes on a cellphone to locate and use an app such as Google Maps while driving would constitute an offense under N.J.S.A. 39:4-97.3 and that the Law Division and municipal court did not abuse their discretion in finding that defendant's conduct was a violation. The court also held that the statute was not unconstitutionally vague because it fairly puts motorists on notice of what category of activity is impermissible.

The court consolidates the appeals brought by three codefendants who were tried together for drug and firearms offenses. All three were charged and convicted for the "kingpin" offense, leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. The State at trial relied principally on recorded jailhouse telephone conversations to establish defendants' roles in the drug trafficking conspiracy. The case hinges on what it means to be a "high-level" member of the conspiracy.

All three defendants moved for judgment of acquittal at the close of the State's case. The trial judge addressed defendants' motions collectively and did not analyze the facts pertaining to each defendant's individual role. The court concludes that the trial judge erred in denying the acquittal motion of the lowest-ranking defendant, Berry. While there can be multiple "leaders" within a given drug trafficking organization, not every participant in a drug trafficking conspiracy meets the definition of being a leader. Even giving the State the benefit of all favorable inferences from the evidence, the court concludes the State failed to prove that Berry exercised substantial authority and control over others. Berry essentially forwarded messages and instructions from codefendant Daniels, who was incarcerated in county jail. While that was an important function, the court notes that a participant may perform an essential function in the operations of an illicit drug operation without necessarily being a high-ranking member of that network for purposes of the leader offense.

The court affirms the Board of Review (Board) decision, which denied a re-hearing after the Appeals Tribunal and agreed with the Division of Unemployment and Temporary Disability Insurance (Division) decision to seek repayment of unemployment benefits improperly awarded to petitioner.

Petitioner voluntarily left employment in October 2019, before the onset of the COVID-19 pandemic. Petitioner filed for and was awarded unemployment benefits for eight weeks, beginning in April 2020. In July 2020, the Division notified petitioner that he was not eligible for unemployment benefits under N.J.S.A. 43:21-5 because he did not leave for good cause attributable to work and his circumstances did not meet the criteria the under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 15 U.S.C. §§ 9001 to 9141. Thus, he was ineligible for Pandemic Unemployment Assistance (PUA) benefits. The Division imposed the refund for petitioner to repay the improper unemployment benefits.

Petitioner appealed, and the Appeal Tribunal affirmed that petitioner was disqualified for such unemployment benefits. The Board agreed. Petitioner brought this appeal, arguing that because the Division erroneously gave petitioner the funds, it is estopped from seeking a refund.

The court agreed after considering the CARES Act's expansion of benefits under the PUA, petitioner was not eligible for benefits during the relevant time period. The Division is required to seek repayment from individuals who are ineligible for unemployment benefits, and petitioner did not show that he was in fact eligible, and the Board's decision was not administered arbitrarily, capriciously, or unreasonably. Further, the State is not estopped from seeking repayment because petitioner did not show a manifest injustice by the Division's decision to seek the required repayments it erroneously awarded.

The court affirmed an order dismissing plaintiff's complaint and compelling arbitration under a construction Agreement to build a home in New York.

Plaintiff entered into the Agreement with defendant, a construction company headquartered in Connecticut. The Agreement contained a choice of law provision to govern by the law of the place where the project was located, excluding that jurisdiction's choice of law rules, and a provision providing that, if the parties selected arbitration as the method of binding dispute resolution, then the Federal Arbitration Act (FAA) would govern. Thus, the parties selected the law of New York, the place of the project, and the FAA to govern the Agreement.

Plaintiff sued defendants in New Jersey alleging defendants had not achieved substantial completion of the project, breached the contract and the implied covenant of good faith and fair dealing, committed fraud and negligent misrepresentation, breached New York lien law, breached their fiduciary duties, committed conversion, unjustly enriched themselves, and violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -224, and the New Jersey Racketeer Influenced Corrupt Organization Act (RICO), N.J.S.A. 2C:41-1 to -6.2.

The trial court delivered an oral opinion dismissing the complaint for the matter to be submitted to arbitration. The court concluded that, under New Jersey law, the arbitration provision is clear and unambiguous as to the requirement that the parties submit to arbitration and as to the parties' waiver of their right to a jury trial. The court noted that the litigants are sophisticated parties that freely entered into the Agreement to build a house for over $10 million.

The court considered whether the law of New Jersey or New York applied to the enforceability and construction of the arbitration provision. Here, the parties clearly and unambiguously chose New York law, where the project was located. Thus, the law of New York applied.

The court then concluded a New York court would likely enforce the arbitration provision as it was less broad than those the New York Court of Appeals upheld in Singer v. Jefferies & Co., 575 N.E.2d 98, 99-101 (1991), Atlas Drywall Corp. v. Dist. Council of New York City & Vicinity of United Bhd. of Carpenters & Joiners, 177 A.D.2d 612, 612-14 (2d Dept. 1991), and Nationwide Gen. Ins. Co. v. Invs. Ins. Co. of Am., 332 N.E.2d 333, 335 (1975). Moreover, Congress and the New Jersey Legislature have declared policies favoring arbitration. Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85 (2002). Here, the court discerned no error in the order compelling arbitration because the arbitration provision is clear and unambiguous in waiving the right to a jury trial and covers the alleged disputes.

As part of an illegal gambling investigation, which included wiretap evidence, defendant was charged with third-degree promoting gambling, third-degree conspiracy to promote gambling, and second-degree financial facilitation of criminal activity. The Bergen County Prosecutor's Office also filed a civil forfeiture complaint against numerous bank accounts and other assets held by defendant and his company. Pursuant to a negotiated plea agreement, defendant waived his right to indictment, pled guilty to third-degree promoting gambling, and consented to the civil forfeiture of $3 million, in exchange for a recommended sentence of probation conditioned upon 180 days in jail and the dismissal of the charges filed against his wife.

At the plea hearing, defendant acknowledged he accepted bets for some of his employees, naming two of them, and admitted to participating in "a pay-and-collect situation with both of those individuals" and the bookmaker. Defendant further admitted he maintained written records of the bets that indicated the amount he needed to collect from the employees. On November 3, 2006, defendant was sentenced in accordance with the plea agreement. That same day he signed a consent order to enter judgment forfeiting $3 million in the civil forfeiture action. Defendant did not appeal his conviction or sentence or file a motion for relief from the forfeiture judgment.

On September 30, 2019, almost thirteen years after he was sentenced, defendant filed a first petition for post-conviction relief (PCR). Defendant sought an evidentiary hearing, withdrawal of his guilty plea, and the return of the forfeited funds. He argued that the time limitation imposed by Rule 3:22-12(a)(1) should be relaxed. Defendant raised claims of actual innocence, newly discovered evidence, ineffective assistance of counsel, and that the BCPO withheld exculpatory evidence. Defendant recanted his admissions during the plea hearing and contended that he never acted as a bookmaker.

The PCR court denied the petition without an evidentiary hearing, rejecting defendant's claims that trial counsel was ineffective and noting defendant received the benefit of a favorable plea deal. The PCR court also rejected defendant's claims of newly discovered evidence, actual innocence, that his plea was coerced, and that the prosecutor withheld exculpatory evidence. The PCR court further concluded that defendant did not demonstrate excusable neglect, his claims were speculative and had no basis in fact, and were time barred.

The court affirmed, noting that defendant pled guilty, was sentenced, and signed the consent order for judgment of forfeiture in 2006, his term of probation ended in 2007, and the county prosecutor he accused of misconduct resigned in January 2016, yet he waited until September 2019 to file his petition. The court found no exceptions applied to the five-year time limitation imposed by Rule 3:22-12 and that enforcing the time-bar did not result in a fundamental injustice.

The court rejected defendant's argument that the time limit for filing his petition should be relaxed due to his actual innocence and declined to apply a federal equitable doctrine to override the clear mandate of Rule 3:22-12.

The court also rejected defendant's claim that the forfeited funds must be returned as a matter of law. The court noted defendant did not contest the civil forfeiture action, consented to the forfeiture of $3 million, had not filed for relief pursuant N.J.S.A. 2C:64-8, and did not file a motion for relief from the forfeiture judgment under Rule 4:50-1. The court held that defendant was bound by the forfeiture judgment and any attempt to set it aside must be filed in the Civil Part and was now time barred by Rule 4:50-2.

At issue in this appeal is the propriety of the prosecutor's closing remarks on a seven-minute segment of surveillance footage, included as part of the one-hour video recording admitted in evidence but not played for the jury by either side during trial. Although the trial judge denied the prosecutor's request to play the previously unseen segment on summation, the judge afforded the jurors the option of viewing this footage during their deliberations.

Upon the jury's ensuing request, the seven-minute segment was played for the first time in open court. Because defendant was not afforded an opportunity to address the footage, the court concludes the prosecutor's remarks exceeded the bounds of proper conduct and the trial judge's evidentiary decision compounded the error, thereby denying defendant a fair trial. Accordingly, the court vacates defendant's conviction for possession of a weapon by a convicted felon and remands for a new trial.

During the parties' divorce proceedings defendant was declared incapacitated due to a breakdown and multiple psychiatric hospitalizations. Following an investigation and filing of a complaint in the Probate Part by the guardian ad litem, the parties' adult children were appointed as co-guardians for defendant. The guardians, assisted by the guardian ad litem and an experienced divorce attorney, settled the case, and entered a comprehensive PSA.

Nearly two years after the divorce, the Probate Part deemed defendant competent and dissolved the guardianship. Approximately one year after dissolution of the guardianship defendant filed a Rule 4:50-1(f) motion to declare the PSA invalid. She argued her children should not have been appointed co-guardians because they were financially dependent on plaintiff and controlled by him and engaged in misconduct. The Family Part judge denied the motion.

On appeal, the court held the appointment of a party's adult child to serve as their guardian in a divorce proceeding pursuant to Rule 4:26-2(a) does not in itself render the subsequent settlement of the case unconscionable. The party seeking to undo the settlement must demonstrate misconduct by the guardian and that the settlement is unconscionable.

While plaintiff was driving his car on a road owned by Passaic County, a falling tree limb struck his car, causing him to suffer significant injuries. The tree with the broken limb was located in a 35,000 acre conservation easement owned by the City of Newark. The trial judge granted summary judgment to the City relying, in part, on the Landowner's Liability Act (LLA), N.J.S.A. 2A:42A-1 to -10. The judge also granted summary judgment to Passaic County, which had been sued under the Tort Claims Act.

The court held N.J.S.A. 2A:42A-8.1 of the LLA, entitled "[l]iability to persons injured on premises with conservation restriction," precluded the imposition of liability against the City. The statute provides immunity to an owner of premises on which "a conservation restriction is held by the State, [or] a local unit . . . and upon which premises subject to the conservation restriction public access is allowed, or of premises upon which public access is allowed pursuant to a public pathway or trail easement held by the State, [or] a local unit . . . ."

Because plaintiff's car travelled on a road providing public access and serving as a public pathway and the tree with the fallen limb stood within a conservation easement, the City was entitled to immunity under the LLA. The County likewise was properly granted summary judgment because the alleged dangerous condition was not on its property. N.J.S.A. 59:4-2.

Appellant A.B.C.-C. is a transgender man who sought to change his name to conform his identification documents with his gender identity. As part of his application, appellant submitted evidence showing transgender people are subject to a particularized threat to their safety based upon their identity and asked that the record of his name change be sealed to protect him from such discrimination and violence. The trial court denied appellant's request. Because appellant demonstrated good cause to seal the record, the court reversed the trial court's denial of appellant's motion, ordered that the record be sealed, and remanded for any necessary further proceedings.

In August 2018, fourteen-year-old Olivia Checchio went to Sky Zone South Plainfield—an indoor trampoline park—with four friends and Gina Valenti—the mother of one of the children. Upon arrival at the park, Valenti signed an agreement that included an arbitration provision, under which the signing adult on behalf of the minor child waived a jury trial and agreed to arbitrate any dispute or claim arising out of the child's use of the Sky Zone premises.

The trial court, relying on this court's recent decision in Gayles v. Sky Zone Trampoline Park, 468 N.J. Super. 17, 21-22 (App. Div. 2021), denied defendants' motion to dismiss the complaint and compel arbitration.

Defendants moved for reconsideration, producing for the first time five agreements signed by Olivia's mother, Lisa, when she took Olivia to the park in 2016. Defendants asserted Gayles was distinguishable from the circumstances here because the 2016 agreements demonstrated a pattern of prior conduct, and, therefore, establish apparent authority.

The court noted the 2016 agreements contained different language than the 2018 agreement. The 2016 agreements did not vest Valenti with the authority to enter into the 2018 agreement or any future agreement on Olivia's behalf. Nor did the 2016 agreements manifest any understanding on Lisa's part that Valenti or any other adult could sign a future waiver agreement in the place of Lisa or on Olivia's behalf.

The court found there was no evidence demonstrating that Lisa would have signed the 2018 agreement. And, Lisa's prior execution of the 2016 agreements did not establish a pattern that she would authorize another person to sign an agreement on behalf of her daughter. Therefore, the court held the 2016 agreements did not establish Valenti had apparent authority to waive Olivia's trial rights under the 2018 agreement.

Plaintiff appeals from an order compelling arbitration and dismissing with prejudice his discrimination complaint against his former employer and two of its employees. This appeal presents an issue of first impression in this court: whether the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, pre-empts a 2019 amendment, adding N.J.S.A. 10:5-12.7 (Section 12.7), to New Jersey's Law Against Discrimination (LAD). Section 12.7 prohibits the waiver of procedural and substantive rights under LAD. The court holds that the arbitration agreement is enforceable, and that the FAA pre-empts Section 12.7 of LAD when applied to an arbitration agreement governed by the FAA. The court affirms the portion of the order compelling arbitration, but remands for entry of a new order that stays the litigation pending the arbitration.

N.J.S.A. 2C:24-8(a) imposes criminal liability on those who have "assumed continuing responsibility for the care of a person 60 years of age or older" and who "abandon[] the elderly person . . . or unreasonably neglect[] to do or fail[] to permit to be done any act necessary for the physical or mental health of the elderly person." In reversing, the court held that a conviction under this statute cannot be sustained when the defendant's conduct was alleged to be a physical assault. The Legislature intended instead to criminalize neglect, abandonment, and failures to act, not an assault, which is criminalized elsewhere in the criminal code.

Appellants challenge the Governor's Executive Order 283, which imposes a COVID-19 vaccination mandate for, among others, the State's corrections officers. The court held that the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-33 to -63, empowered the Governor to issue the order and that the order's vaccination mandate was rationally and adequately tailored to the problem posed.

This interlocutory appeal arises from an ongoing prosecution for strict liability for drug-induced death, N.J.S.A. 2C:35-9, following a fatal heroin overdose. The State appeals from a trial court order suppressing incriminating statements defendant made during a stationhouse interrogation because the officers did not advise him that a death had occurred and that he was facing prosecution for a first-degree homicide offense. The trial court had initially held the statements were admissible but granted defendant's motion for reconsideration that cited to the majority opinion in State v. Sims, 466 N.J. Super. 346 (App. Div.), certif. granted, 246 N.J. 146 (2021). While the parties and the trial court knew that the Supreme Court had granted certification, they appeared to be unaware that the Supreme Court had stayed the Sims opinion.

In Sims, the majority announced a new per se rule that when police make an arrest following an investigation, they must at the outset of a custodial interrogation advise the interrogee of the offense(s) for which he or she was arrested regardless of whether a complaint-warrant or arrest-warrant has been issued. 466 N.J. Super. at 367. The question to be addressed by the Supreme Court is: "[w]ere the officers required to advise defendant, who was not charged with any offenses at the time, why he was arrested before proceeding with the custodial interrogation."

In the present case, the court follows an alternate analytical route that does not depend on the outcome in Sims. The court leaves to the Supreme Court to decide whether police may remain silent during a Miranda colloquy with respect to the essence of unfiled charges for which the interrogee was taken into custody. Rather, the court focuses on the impact of the police decision in this instance to advise defendant of the reason for his arrest in a manner that was misleading. Under this analytical approach, the failure to advise defendant of the overdose death was a relevant factor to be considered in determining whether defendant's waiver of Miranda rights was made knowingly.

The court concludes, considering the totality of the circumstances, the State failed to prove beyond a reasonable doubt that defendant's waiver of his right against self-incrimination was made knowingly because the detectives affirmatively misled defendant by providing a deliberately vague and incomplete answer to his question of why he was taken into custody. The court reasons that it is one thing for police to withhold information; it is another thing entirely for them to provide an explanation that creates or reinforces a false impression.

The court recognizes that police are permitted, within limits, to use trickery or deception in the course of a custodial interrogation. The court draws a fundamental distinction, however, between police trickery with respect to the strength of the evidence against an interrogee on the one hand, and trickery with respect to the seriousness of the offense(s) for which he or she was arrested on the other hand. While police are allowed to use certain forms of trickery following a knowing and voluntary Miranda waiver, the court finds no New Jersey precedent that authorizes trickery as part of the waiver process. Indeed, the court notes that Miranda v. Arizona expressly held that "any evidence that the accused was . . . tricked . . . into a waiver will, of course, show that the defendant did not voluntarily waive his [or her] privilege." 384 U.S. 436, 476 (1966).

The court adds that affirmatively misleading an interrogee about the seriousness of the offense for which he or she was taken into custody strikes at the heart of the waiver decision. The court does not, however, propose a categorical, per se rule that any deception or trickery of this type automatically warrants suppression. Rather, the court holds that the use of such a stratagem is an important factor to be considered as part of the totality of the circumstances in determining whether the State has met its burden of proving, beyond a reasonable doubt, that defendant made a knowing waiver of his right against self-incrimination.

Finally, the court rejects the State's argument that the detectives did not have probable cause to charge defendant with the strict liability for drug-induced death offense pending the completion of autopsy and toxicology reports. Applying de novo review, the court concludes that the detectives were aware of facts constituting probable cause that defendant committed the strict liability homicide offense, viewed from the standpoint of an objectively reasonable police officer.

Plaintiff, which contracted to purchase a large tract of vacant land from Hovbros Burlington, alleged in this action that defendant TD Bank tortiously interfered with that contract by foreclosing its mortgage on the property. The trial judge dismissed for failure to state a claim.

In affirming in part, the court held that the foreclosure sale cut off plaintiff's unrecorded contract interest and thereby eviscerated plaintiff's continuing claim of a legal or equitable interest in the property despite an assumption of TD Bank's knowledge of plaintiff's contract rights when TD Bank foreclosed. In this regard, the court rejected the holding of a published trial court decision, PNC Bank v. Axelsson, 373 N.J. Super. 186 (Ch. Div. 2004), which found relevance in the application of N.J.S.A. 2A:50-30 when a foreclosing party has knowledge of an unrecorded interest.

In reversing in part, the court held that plaintiff could continue to seek damages on its tortious interference claim against TD Bank based on its theory, which the court was obligated to assume as true, that TD Bank manipulated its rights as to Hovbros and its related companies so as to interfere with plaintiff's contract rights.

Following the dismissal of a chancery action against them that sought a constructive trust on the proceeds of a sale of real property, plaintiffs filed a complaint against the prior suitor, alleging, among other things, the tortious interference with their contract to sell the real property. The prior suitor sought dismissal, arguing her earlier claim was cloaked by the litigation privilege. The trial judge held that the complaint and other pleadings were insulated by the litigation privilege but not the notice of lis pendens, which had been recorded but discharged in the earlier action.

In permitting review of that interlocutory disposition, the court affirmed in part and reversed in part, holding that the notice of lis pendens – a mere statement of the complaint's claims – was insulated by the litigation privilege, but the litigation privilege did not absolve the prior suitor of the consequences of having filed that earlier suit; in other words, the litigation privilege protected the prior suitor's statements and communications in the earlier judicial proceeding but did not protect her from a later action based on the allegation that the earlier suit was frivolous, vexatious or tortious.

The court permitted defendants in this medical malpractice action leave to appeal the trial court's denial of their motions for partial summary judgment on plaintiff's claims for breach of contract and hospital policy based on a third-party beneficiary theory as well as his claims for negligence per se for defendants' alleged violation of the hospital policies incorporated into those contracts. Because well-established precedent makes clear neither cause of action is available to plaintiff in this case as a matter of law, the court reversed the orders and remanded for entry of partial summary judgment for defendants dismissing those claims.

This appeal presents an issue of first impression—whether DNA evidence obtained from extremely small amounts of DNA through a technique known as low copy number (LCN) DNA testing, and in one instance, by using a proprietary Forensic Statistical Tool (FST) software program, which defendant contends are not generally accepted in the relevant scientific community, was improperly admitted at trial.

Defendant was indicted for the murder of a woman he had recently visited, that worked at his father's business. Her partially burned body was found in her residence. She died from blunt force head injuries. As part of their investigation, detectives obtained DNA samples from defendant, his apartment, a condominium that he had access to, his car, and the victim's fingernails. Samples from the kitchen of the apartment tested positive for blood. The DNA samples were sent to a laboratory DNA analysis.

The trial court denied defendant's motion for a Frye¹ hearing to determine the admissibility of the LCN DNA test results. At trial, the State's experts testified that DNA samples from the kitchen was consistent with the victim's DNA. Analysis of a second set of DNA samples showed a mixture of DNA from two people, one of whom was the victim. DNA samples from the victim's home did not test positive for defendant's DNA, but samples taken from the victim's fingernails did. Samples from defendant's apartment and car did not test positive for the victim's DNA. Defense experts opined that the LCN DNA testing and FST were neither reliable nor generally accepted in the relevant scientific community. Defendant was found guilty of the murder.

On appeal, the court remanded the case for a Frye hearing to determine the admissibility of the disputed DNA evidence under the standards adopted in State v. Harvey, 151 N.J. 117 (1997), and retained jurisdiction.

Following a multi-day Frye hearing, at which numerous expert witnesses testified, the trial court determined the State clearly established that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community and ruled the DNA analysis was admissible.

The court rejected the trial courts determinations, concluding that the State did not clearly establish that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community. Therefore, the DNA evidence derived by using that technique and software was inadmissible. Noting that the remaining evidence was not overwhelming and recognizing that DNA evidence is powerful and compelling, the court determined that admission of the disputed DNA evidence raised a reasonable doubt that the jury was led to a verdict it otherwise might not have reached. Because the error was not harmless, the court reversed defendant's conviction and remanded for retrial.

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¹ Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

In this breach of contract action, the owner/operator of an aerobic biodigester facility sued defendant, Denali, which was contractually obligated to deliver quantities of organic waste to the facility for processing. Shortly after entry of the initial case management order, Denali served subpoenas on plaintiff and several nonparties, including Symbiont Science, Engineering and Construction, Inc. (Symbiont), which had designed and retrofitted the facility for plaintiff. Symbiont's subpoena required it to identify a corporate designee with familiarity in seventeen topic areas and demanded documents and electronically stored information in thirteen categories.

Much of the requested information centered on communications between plaintiff and Symbiont, such as the terms of Symbiont's agreement with plaintiff, "including the drafting, revision, and execution of the agreement"; "[t]he calculation of Symbiont's guaranteed maximum price to complete the construction to retrofit the Trenton Facility"; and "[a]ll communications with [plaintiff c]oncerning the construction and design" of the facility, "including but not limited to, the construction cost, construction schedule, and design modifications." Denali served similar requests on plaintiff.

When negotiations regarding the scope of production broke down between Denali and plaintiff, and between defendant and Symbiont, Denali moved to compel, and plaintiff and Symbiont moved to quash. The judge granted Denali's motion as to both plaintiff and Symbiont, relying on the broad scope of discovery permitted by Court Rules and case law.

The court granted Symbiont's motion for leave to appeal and reversed. Despite the broad scope of discovery permitted between parties, a court facing a discovery dispute involving a nonparty to the litigation must consider additional factors. The court also noted the special recognition the Federal Rules of Civil Procedure provide to discovery demanded from nonparties.