Suppose there is a hit-and-run in a sparsely populated area. You are retained as counsel to represent the victim, who sustained significant property damage to her vehicle and debilitating personal injuries. After a preliminary investigation, you learn that there are no witnesses to the incident, but there is a nearby gas station equipped with video cameras that may have footage of the hit-and-run and from which you may be able to identify the other driver. The gas station refuses to share its video footage with you. At this point, you could file a “John Doe” complaint and then serve a subpoena on the gas station. But the fastest and cheapest way to obtain the video is by filing a petition for pre-suit discovery under New Jersey Rule 4:11-1.
Under New Jersey Rule 4:11-1, when a person expects to be a party to an action cognizable in New Jersey, but is missing a key piece of information that will allow her to proceed in court, she may file a verified petition seeking an order entitling her to that information. There are several advantages to filing a verified petition for discovery over filing a John Doe complaint and serving nonparty discovery. First, the verified petition will be accompanied by an order to show cause, which is one of the quickest ways to obtain relief in New Jersey courts. Under New Jersey Rule 4:11-1, a hearing date on the verified petition and order to show cause may be scheduled any time after 20 days from service of the verified petition on any expected adverse parties, or parties from whom a litigant seeks pre-complaint discovery. The nonparty subpoena process, on the other hand, is usually not so short. Second, the entity from whom a litigant seeks pre-suit discovery may file a response to the verified petition, but that is it. Were a party to issue a subpoena to obtain non-party discovery, however, she may face a motion for protective order, the resolution of which will require a full round of motions practice.
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