In DiFiore v. Pezic, A-58/59/60 September Term 2021, 087091, the New Jersey Supreme Court, in a unanimous opinion authored by Justice Rachel Wainer Apter, addressed whether a plaintiff has the right to record or have a third-party present for a defense medical examination (DME). (In DiFiore, the author argued as amicus on behalf of the National Employment Lawyers Association of New Jersey.) In overruling the central tenet of the Appellate Division's holding—which was that the plaintiff bore the burden "to show special reasons why third-party observation or recording should be permitted"—the Supreme Court restored, at least in part, the judicial framework previously established by B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998). Instead, the DiFiore court held that defendants bore the burden of demonstrating why a third-party observer or an unobtrusive recording should not be permitted.

Landscape Prior to the Appellate Division's Holding in 'DiFiore'

In Carley, the Appellate Division held that the plaintiff was permitted to make an audio recording of a psychological DME. In so holding, the court found that "the defense psychologist d[id] not have the right to dictate the terms under which the examination shall be held." The court determined that the plaintiff's "right to preserve evidence of the nature of the examination, the accuracy of the examiner's notes or recollections, the tones of voice and the like outweigh the examiner's preference that there be no recording device." In "explicitly overrul[ing]" Stoughton v. B.P.O.E., No. 2151, 281 N.J. Super. 605 (Law Div. 1995), the holding in Carley stood "for the proposition that a plaintiff need not show special reasons to justify recording a psychological examination or bringing counsel or a representative to a physical examination."