McDonough, Murray & Korn, P. A. v. Breuninger

Citations: 179 N.J. Super. 574; 432 A.2d 964; 1980 N.J. Super. LEXIS 836

Court: United States District Court; December 15, 1980; Federal District Court

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The court is tasked with determining two issues under New Jersey Rule 4:14-7(b): (1) whether attorney Patricia Breuninger, who testified at a deposition regarding negotiations conducted on behalf of her client, is an "authorized agent" of that client and thus ineligible for reimbursement by the deposing party for her lost income and expenses, and (2) whether she should be reimbursed for her legal counsel's fees incurred while attending the deposition. No relevant New Jersey case law has been identified on these matters. The facts are stipulated by the parties. Breuninger represented Bernadette Brehm in a prior Superior Court action, and attorney McDonough sought her deposition after attempts to obtain it voluntarily failed. An order was issued for a limited deposition focusing on Breuninger's communications with defendants. After the deposition, Breuninger submitted a bill for $228.50 for lost income and expenses, as well as a $225 bill for her attorney's representation at the deposition, both of which were agreed to be reasonable amounts. Although McDonough initially refused payment, he later authorized the payment of both bills. The rule stipulates that parties and their agents are not entitled to reimbursement for attending depositions. The plaintiff argues that Breuninger attended as Brehm's "authorized agent," while Breuninger contends she was there as a knowledgeable witness. The court will interpret "authorized agent" broadly, referencing similar New Jersey rules and federal rules as guidance, noting Breuninger's prior representation of Brehm during negotiations gives rise to her status as an authorized agent.

Miss Breuninger, as an authorized agent, is subject to deposition on notice but is excluded from reimbursement requirements under R. 4:14-7(b). The defendant's argument incorrectly assumes that this rule applies to any agent of a party, regardless of whether the party is an individual or an organization. A proper interpretation of R. 4:14-7(b) with R. 4:14-2 reveals that 'agent' is limited to individuals acting on behalf of organizations, such as corporations or partnerships, not attorneys representing individual parties. This understanding is supported by the parallel federal rule, Fed. R. Civ. P. 30(b)(6), which has consistently been interpreted to apply only to corporate entities. Case law indicates that the term 'managing agents' applies to employees with discretion in corporate matters, further reinforcing that attorneys do not fall under this category. Therefore, even if the rule were to apply to individual parties, Miss Breuninger's role as Brehm’s attorney in pre-lawsuit negotiations does not qualify her as an agent for deposition purposes. The court concludes that the rules were not intended to include attorneys like Miss Breuninger in the class of persons subject to deposition without compensation. Consequently, she is entitled to reimbursement for her deposition-related expenses, as her charges are undisputedly reasonable.

Miss Breuninger's request for reimbursement of her attorney Mr. Staehle's fees for representation at her deposition is denied by the court. Although she acknowledges that a lay witness typically cannot have an attorney present at the expense of the deposing party, she argues that special circumstances warrant reimbursement. The court finds no support for this claim in R. 4:14-7(b), noting that other discovery rules explicitly outline provisions for attorney’s fees under specific circumstances related to misconduct that disrupts pretrial processes. Since Miss Breuninger's situation does not equate to such misconduct, and given the court's prior ruling that her deposition was appropriately conducted, she is not entitled to reimbursement. A judgment will be issued in favor of the plaintiffs—McDonough, Murray, and Korn—requiring Breuninger to repay the amount they inadvertently paid for her attorney's fee, along with costs of the suit.