Final Restraining Orders And Attendance At Depositions

New Jersey Rule of Court 4:10-3 provides that the Court may, for good cause shown, make any Order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. In the comment to Rule 4:10-3 it is specifically stated that a party can be prohibited from being present during the taking of a deposition under exceptional circumstances.

In Mugrage v. Murgrage, 335 N.J. Super. 653 (App. Div. 2000), the Appellate Division found that several factors should be considered by the Court in determining the need to exclude a party from depositions where a Final Restraining Order has been entered. The factors include:

1. any history of domestic violence between the parties, including physical abuse, threats, and harassment;
2. any violations of the domestic violence restraining order;
3. past disregard of the judicial process by the party sought to be excluded from the deposition;
4. anticipation of misconduct during depositions, which would harass, alarm or frighten the party being deposed;
5. the party’s fear of the party sought to be excluded;
6. the mental and emotional health of both parties;
7. general security concerns for the safety of the party being deposed;
8. the good faith of the party being deposed in asking to exclude the other party from the deposition;
9. any other factor deemed relevant by the Court.

Id. at 657.

The first factor is the past history of domestic violence between the parties. For example, if a party has had a history of mental and psychiatric issues, a history of alcoholism or has made threatening phone calls, or has demonstrated suicidal tendencies, if the vulnerable party remains in fear and has no doubt that the offending party would take his or her life if offered the opportunity, these troubling circumstances would lead to a protective order, and weigh in favor of prohibiting the offending party from a deposition.

The next factor is whether there have been any violations of the Restraining Order. One violation may not be persuasive enough to override a person
^TMs right to be at a deposition, but 9 violations, for example, would demonstrate a thorough difficulty in controlling his or her behavior at least where it pertains to the vulnerable party, and would weigh in favor of barring the offending party from the deposition.

The third factor is past disregard for the judicial process by the parties sought to be excluded from the deposition. A party
^TMs conduct and behavior with respect to the court, its officers, attorneys present, abiding by deadlines, requests, and the legal system will affect whether or not he or she may be prevented from attending a deposition.

The fourth factor is whether there is an anticipation of misconduct at the deposition that would harass, alarm or frighten the party being deposed. Again, past behavior and lack of regard for the judicial system would all lead one to believe that a party would act inappropriately or even criminally at the deposition by trying to engage or even harm the vulnerable party.

The fifth factor is the party
^TMs fear of the party sought to be excluded. The Court in Mugrage v. Mugrage found that it is not necessary to differentiate between subjective fear and objective fear. Thus, it is not necessary for the Court to determine whether a reasonable victim similarly situated would be in fear of the individual sought to be excluded. It is sufficient that, if the person seeking the protective Order feels she is fear, the Court should grant an appropriate protective order, even if the fear does not rise to the level of objective fear. Id. at 659.

The sixth factor is the mental and emotional health of both parties. Alcoholism, a need for behavior modification medications, or institutionalization are examples of issues that would generate concern for the likelihood that the offending party would be stable enough to rely on reasonable behavior at a deposition where the protected party will be.

The seventh factor is general security concerns for the safety of the party being deposed. The Court has an obligation to insure the safety of the protected party. Murgrage v. Murgrage, 335 N.J. Super. at 660. Threats of physical harm, or actual attempts at physical harm would lead the Court to prevent the offending party from attendance at a deposition.

The eighth factor is good faith of the party being deposed in seeking to exclude the other party from the deposition. The protected party
^TMs request should be based upon, for example, the offending party
^TMs unstable behavior and perceived danger that led to an initial Temporary Restraining Order, as opposed to any attempt to manipulate the legal system for her own benefit.

The Court in Mugrage determined that it was necessary to weight the factors set forth above qualitatively, and not quantitatively, in order to determine whether there has been a showing of exceptional circumstances or good cause to warrant a protective order. Mugrage v. Mugrage, 335 N.J. Super. at 661. By exceptional, it can be argued that those circumstances must be extremely persuasive and clear with respect to the likelihood that the protected party will be in fear or danger, warranting curbing the rights of the offending party.