We represent a petitioner before the Office of Administrative Law. She was denied Medicaid. After filing our appeal, we served discovery demands upon the Monmouth County Board of Social Services. In accordance with the Office of Administrative Law’s rules and procedures, discovery responses were due fifteen (15) days thereafter. The undersigned contacted county counsel on multiple occasions to request an update on the status of discovery. Several documents were removed from the file by the county as privileged. Those documents have not been identified. In accordance with Administrative Law rules, a request for a telephone conference before the judge was timely made. We, therefore, filed a motion in support of our request to compel discovery.
A motion for discovery can be made under N.J.A.C. 1:1-12.1-12.7. A motion for discovery is appropriate when a party to a proceeding before the Office of Administrative Law timely files discovery demands and timely requests a telephone conference to compel discovery under N.J.A.C. 1:1-10.4(a)-(d). In considering a discovery motion, the Judge, “shall weigh the specific need for the information, the extent to which the information is within the control of the party and matters of expense, privilege, trade secret and oppressiveness. Except where proceeding would be unduly prejudicial to the party seeking discovery, discovery shall be ordered on terms least burdensome to the party from whom discovery is sought.” N.J.A.C. 1:1-10.1(c).
Discovery rules in matters before the Office of Administrative Law are set forth in N.J.A.C. 1:1-10.1 through 1:1-10.6. In accordance with N.J.A.C. 10:1-4, counsel must timely serve discovery demands. N.J.A.C. 10:1-4(c) provides fifteen (15) days for the other side to respond. N.J.A.C. 10:1-4(d) requires a party which does not receive responsive discovery to notify the Office of Administrative law, and request a conference call within ten (10) days of the date the party should have received the response if the party seeks to compel discovery.
These rules are designed to give litigants access to facts which tend to support or undermine their position or that of their adversary.” N.J.A.C. 1:1-10.1. By failing to respond to a request for production of documents, and failing to produce responsive documents, Monmouth County was frustrating the intent of the discovery process. If this matter was allowed to proceed to trial without the service of responsive documents to us, it would frustrate the purpose of the rules of practice before the Office of Administrative Law and the rules of professional conduct, greatly increasing the use of judicial resources to address discovery in the future.
In light of Monmouth County’s delayed responses, and its failure of Monmouth County to comply with its discovery obligations, we requested the Court to order Monmouth County to produce their entire file for review, and if a privilege was to be asserted, Monmouth County would need to produce a privilege log for review by the court. The judge was sympathetic to our position.
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By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Appealing Medicaid Denial Attorney