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Crescenzo v. Crane

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 26, 2002

The authority of an attorney to issue a discovery subpoena duces tecum under the seal of the Superior Court pursuant to R. 4:14-7(c) (the Rule) “is a significant one which must be exercised in good faith and in strict adherence to the rules to eliminate potential abuses.” Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 569 (App. Div. 2000). Unfortunately, violations of the Rule are both “recurring and vexing.” Id. at 560. Failure to adhere to the Rule’s provisions may result in the improper and unauthorized acquisition of records and documents that, although ultimately discoverable, may expose third parties to potential liability as well as infringe on the lawful rights and privileges of those against whom discovery is sought. This is what happened here. An attorney failed to comply with the provisions of the Rule, and a doctor, improperly responding to a discovery subpoena, forwarded privileged records of his patient without notice or authorization. The patient brought an action for damages against both the lawyer and the doctor. We conclude that the complaint stated a viable claim against both parties and reverse the order of the Law Division dismissing the complaint.

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