2019-2020 Court Term Rules Update (NJ) | Practical Law

2019-2020 Court Term Rules Update (NJ) | Practical Law

A Legal Update summarizing the New Jersey Supreme Court's omnibus rule amendment order that became effective September 1, 2019 and the key rule amendments the court made during the 2019-2020 court term, commonly called off-calendar amendments, for counsel practicing in the New Jersey Supreme Court; the Superior Court, Appellate Division; the Superior Court, Law Division, Civil Part; and the Superior Court, Chancery Division, General Equity Part.

2019-2020 Court Term Rules Update (NJ)

Practical Law Legal Update w-032-2653 (Approx. 9 pages)

2019-2020 Court Term Rules Update (NJ)

by Practical Law Litigation
Law stated as of 13 Aug 2021 • New Jersey
A Legal Update summarizing the New Jersey Supreme Court's omnibus rule amendment order that became effective September 1, 2019 and the key rule amendments the court made during the 2019-2020 court term, commonly called off-calendar amendments, for counsel practicing in the New Jersey Supreme Court; the Superior Court, Appellate Division; the Superior Court, Law Division, Civil Part; and the Superior Court, Chancery Division, General Equity Part.

2019-2020 Court Term Off-Calendar Rule Amendments

The key off-calendar amendments for the 2019-2020 court term, July 1, 2019 to June 30, 2020, are outlined below in reverse chronological order.

Privilege Waivers

The Supreme Court revised New Jersey Rule of Evidence (N.J.R.E.) 530, effective July 1, 2020, to address whether a party's disclosure of materials protected by the attorney-client privilege or work product doctrine results in a waiver. The revised rule also recognizes that an agreement or order may govern whether a waiver occurs. (N.J.R.E. 530(c); see Notice to the Bar (Sept. 16, 2019) and Notice to the Bar (Aug. 5, 2019).)
The revisions largely track Federal Rule of Evidence 502 (see Notice to the Bar (Aug. 5, 2019)) and complement discovery rules and procedures that apply in the CBLP (see Practice Notes, Practicing in the Complex Business Litigation Program (NJ): Proposed Discovery Plan and Clawback Stipulation and Order).
For more information about the attorney-client privilege and waiver, see Practice Notes, Attorney-Client Privilege: Basic Principles (NJ) and Attorney-Client Privilege: Waiver (NJ).

Default Standards Under N.J.R.E. 530(c)

The Supreme Court revised N.J.R.E. 530 to state that when a party discloses materials the attorney-client privilege or work product doctrine protect, they waive that protection over any undisclosed materials if:
  • The party made the disclosure:
    • in a New Jersey court proceeding; or
    • to a New Jersey state office or agency.
  • The party intentionally made the disclosure.
  • The disclosed and undisclosed materials:
    • concern the same subject matter; and
    • must be considered together in fairness.
(N.J.R.E. 530(c)(1); see Notice to the Bar, at 1 (Sept. 16, 2019).)
The revised rule also states that when a party discloses materials the attorney-client privilege or work product doctrine protect, they do not waive that protection if the party:
  • Made the disclosure:
    • in a New Jersey court proceeding; or
    • to a New Jersey state office or agency.
  • Inadvertently made the disclosure.
  • Took reasonable steps to:
    • prevent the disclosure; and
    • correct the error.
(N.J.R.E. 530(c)(2); see Notice to the Bar, at 1 (Sept. 16, 2019).)
The revised rule further states that when a party discloses materials the attorney-client privilege or work product doctrine protect in a foreign state or federal proceeding, the party does not waive that protection if the disclosure either:
  • Would not be a waiver if it was made in a New Jersey proceeding.
  • Is not a waiver under the foreign forum's law.
(N.J.R.E. 530(c)(3); see Notice to the Bar, at 1-2 (Sept. 16, 2019).)

Enforceability of Anti-Waiver Agreements and Orders

The Supreme Court revised N.J.R.E. 530 to recognize that an order or agreement may govern whether a party's disclosure of materials the attorney-client privilege or work product doctrine protect results in a waiver. Specifically, it provides that:
  • A court may order that a party's disclosure of attorney-client privileged or work product protected materials is not a waiver in the litigation pending before that court. If that occurs, the disclosure is also not a waiver in any other state or federal matter. (N.J.R.E. 530(c)(4).)
  • Parties may agree about whether the disclosure of attorney-client privileged or work product protected materials is a waiver (N.J.R.E. 530(c)(5)).
(See Notice to the Bar, at 2 (Sept. 16, 2019).)
For a sample agreement or stipulation and proposed order under N.J.R.E. 530(c)(4) or (5) (also called a clawback) with integrated drafting notes, see Standard Document, Clawback Agreement or Stipulation and Proposed Order (NJ).

Evidence Rules Restyling

Effective July 1, 2020, the Supreme Court restyled the New Jersey Rules of Evidence. The revisions affect 46 rules. However, the Supreme Court explained that the changes are not intended to substantively alter the rules' meanings. The revisions instead seek to clarify language and make the rules easier to understand. The revisions also track restyling edits made to the Federal Rules of Evidence in 2011. The Supreme Court's Notice to the Bar about these revisions contains a blackline of all the stylistic changes to the evidence rules. (See Notice to the Bar (Sept. 16, 2019).)
For more information about the New Jersey Rules of Evidence, see Using Documents as Evidence Checklist (NJ).

References to Court Records in Information Otherwise Excluded From Public Access

On January 21, 2020, the Supreme Court issued an order adopting N.J. R. 1:36-4 and 1:38-1A. The new rules permit trial and appellate judges to quote from or refer to information in court records excluded from public access in their decisions. Court decisions include oral or written:
  • Orders.
  • Judgments.
  • Opinions.
  • Dispositions.
  • Decrees related to judicial or administrative proceedings.
(N.J. R. 1:36-4 and 1:38-1A.)
For more information on exclusions from public access, see Legal Update, 2018-2019 Court Term Rules Update (NJ): Confidential Name Change Forms Excluded From Public Access and Military Status as a Confidential Personal Identifier.

Revisions to Civil Case Information Statement

The Supreme Court approved revisions to the civil Case Information Statement, effective December 12, 2019. The revised form:
  • Requires the filing party to identify whether the case alleges sexual abuse claims or violations of the Consumer Fraud Act.
  • Adds two new Multicounty Litigation case types:
(See Notice to the Bar (Dec. 12, 2019).)

Attorney Email and Cell Phone Number Disclosures

On December 2, 2019, the Supreme Court amended N.J. R. 1:20-1 to require that all attorneys admitted to practice in New Jersey:
  • Maintain a valid email address and cell phone number.
  • Provide the judiciary with that email address and cell phone number during the annual registration process.
  • Notify the judiciary of any change in that email address or cell phone number.
(See Notice to the Bar (Dec. 20, 2019).)
The judiciary uses the attorney's email address and cell phone number for official court business only. It does not publicly disclose that information unless the attorney discloses the email address for another public purpose, such as for electronic filing notices. (See Notice to the Bar (Dec. 20, 2019).)

Foreclosure Complaint Reinstatements

On December 2, 2019, the Supreme Court amended N.J. R. 4:64-8 to allow:
  • A plaintiff to reinstate a foreclosure complaint that the court dismissed without prejudice for lack of prosecution only by motion showing good cause. If the court reinstates the complaint, the plaintiff must pay a restoration fee that is twice the fee to file an initial foreclosure complaint.
  • The court to reinstate a foreclosure complaint three times (not including any dismissals resulting from federal exemptions) before requiring the plaintiff to file a new complaint.
(See Notice to the Bar (Dec. 17, 2019).)
The Supreme Court's order makes the amendments to N.J. R. 4:64-8 set forth in the Notice to the Bar (July 30, 2019) and Notice to the Bar (Nov. 1, 2019) permanent (see Foreclosure Mediation Process and Complaint Fee Revisions and Legal Update, 2018-2019 Court Term Rules Update (NJ): Foreclosure Complaint Reinstatement Fee and Limitations). Those amendments partially superseded earlier amendments to N.J. R. 4:64-8 (see Notice to the Bar (Apr. 30, 2019); see Legal Update, 2018-2019 Court Term Rules Update (NJ): Dismissal of Foreclosure Actions for Lack of Prosecution).

Foreclosure Mediation Process and Complaint Fee Revisions

As to the foreclosure mediation process and complaint fees, effective November 1, 2019:
(See Notice to the Bar (Nov. 1, 2019); Legal Update, 2018-2019 Court Term Rules Update (NJ): Residential Foreclosure Mediation and Foreclosure Complaint Reinstatement Fee and Limitations.)
The Supreme Court's December 2, 2019 order amended N.J. R. 4:64-8 to make the fee increase for restored foreclosure complaints permanent (see Notice to the Bar (Dec. 17, 2019) and Foreclosure Complaint Reinstatements).

Appearance by Law Graduates Employed by Certain Nonprofit Organizations

On October 8, 2019, the Supreme Court issued an order amending N.J. R. 1:21-3 to permit law school graduates that certain law school-affiliated nonprofit organizations employ to appear unsupervised in court on select matters before passing the New Jersey bar examination (see Notice to the Bar (Oct. 9, 2019)).
Under the amended rule, graduates from American Bar Association accredited law schools may appear before the Appellate Division, a trial court, or an agency without in-court attorney supervision before passing the New Jersey bar examination if:
  • They are employed by a nonprofit association that both:
    • provides legal assistance to people of low and low-moderate means; and
    • has a program to educate, mentor, or train recent law school graduates.
    (N.J. R. 1:21-1(e).)
  • The matter does not involve either:
    • a client's potential incarceration for more than six months; or
    • a potential monetary award for or against a client of more than $100,000.
(N.J. R. 1:21-3(a) and Notice to the Bar (Oct. 9, 2019).)
A law school graduate's permission to appear without attorney supervision concludes if the graduate fails to sit for and pass the first bar examination scheduled after graduation (N.J. R. 1:21-3(a) and Notice to the Bar (Oct. 9, 2019)).

2019-2020 Omnibus Rule Amendments

The Supreme Court's omnibus rule amendment order for the 2019-2020 court term, July 1, 2019 to June 30, 2020, became effective on September 1, 2019 (see Court Holidays and Recesses 2019-2020). The key amendments are outlined below.

Application for Admission by Motion

The Supreme Court amended N.J. R. 1:24-4(a) to require that applicants applying for admission to the New Jersey bar must have lawfully practiced law for five of the last seven years within the jurisdiction of the United States. The other requirements for application for admission by motion remain the same. (N.J. R. 1:24-4.)

Order to Show Cause Forms

The Supreme Court approved the removal of the nonmandatory Order to Show Cause forms from the Appendices to the New Jersey Court Rules, specifically:
The Supreme Court also deleted the references to these appendices in N.J. R. 4:52-1 and 4:67-2.
Although the forms are no longer part of the New Jersey Court Rules, they remain in effect and are available in the Forms section of the Self-Help page of the New Jersey Courts website. Counsel may search by either form name or catalog number to find the forms. (See Notice to the Bar (Aug. 14, 2019).)
For more information on seeking preliminary injunctive relief, see Preliminary Injunctive Relief Toolkit (NJ).