NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0084-24
JAMES WHELTON,
Plaintiff-Appellant,
v.
REMA TIP TOP/NORTH AMERICA, INC., REMA TIP TOP OF AMERICA, INC., REMA TIP TOP AG, OLAFUR GUNNARSSON, MICHAEL ÜBELACKER, and STAHLGRUBER OTTO GRUBER, AG,
Defendants-Respondents. _________________________________
Argued February 25, 2025 – Decided March 14, 2025
Before Judges Gilson, Firko, and Augostini.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2829-22.
Michael F. O'Connor argued the cause for appellant (McMoran O'Connor Bramley & Burns, PC, attorneys; Michael F. O'Connor, on the briefs). Lindsay A. Dischley argued the cause for respondents Rema Tip Top AG, Stahlgruber Otto Gruber, AG, and Michael Übelacker (Chiesa Shahinian & Giantomasi, PC, attorneys; Lindsay A. Dischley and Brigitte M. Gladis, on the brief).
Samuel J. Bazian argued the cause for respondents Rema Tip Top/North America, Inc. and Rema Tip Top of America, Inc. (Herrick Feinstein, LLP, attorneys; Samuel J. Bazian, on the brief).
PER CURIAM
This appeal from two interlocutory orders, involves a discovery dispute in
an unlawful retaliation case. Plaintiff James Whelton sued defendants Rema Tip
Top/North America, Inc. (Rema), Rema Tip Top of America, Inc. (Rema
America), Rema Tip Top AG (Rema AG), Olafur Gunnarsson, Michael
Übelacker, and Stahlgruber Otto Gruber, AG (Stahlgruber) (collectively
defendants) alleging he had been threatened with termination and passed over
for a promotion in violation of the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14.
Plaintiff appeals from the March 25, 2024 order denying his motion to
compel defendants to produce non-party Heinz Reiff for a deposition in New
Jersey and requiring plaintiff to subpoena Reiff to take his deposition. Reiff is
the chairperson of Rema AG's supervisory board, serves on Stahlgruber's
management board, and is a member of Rema America's board of directors.
A-0084-24 2 Reiff is a German citizen and resides in Germany. Plaintiff also appeals from
the April 9, 2024 order denying reconsideration of that decision. For the reasons
that follow, we reverse both orders and direct the trial court to enter an order
compelling defendants to produce Reiff for a deposition in person in New Jersey
because we conclude he is under their control.
I.
We derive the salient facts from the motion record. On May 31, 2023,
plaintiff filed a second amended complaint, the operative pleading for purposes
of this interlocutory appeal. Plaintiff, an attorney, has been the chief legal
officer (CLO) and chief of business affairs for Rema and has held those positions
for over eleven years. Rema is one of the world's leading manufacturers and
distributors of rubber products mainly used in the tire and automotive industries.
Rema is a wholly owned subsidiary of Rema America, a holding company.
Rema America is a Delaware corporation with a principal place of business in
Woodcliff Lake. Rema America is a wholly owned subsidiary of Rema AG, a
German corporation. Rema AG is a wholly owned subsidiary of Stahlgruber,
also a German corporation.
Gunnarsson was the former chief executive officer (CEO) and sole
director of Rema. Gunnarsson was also the managing director, president,
A-0084-24 3 secretary, and treasurer of Rema America and an employee of Rema and
Stahlgruber. Gunnarsson reported to Reiff and defendant Übelacker, the CEO
of Rema AG. Übelacker also serves on Rema AG's supervisory board and is a
member of Stahlgruber's board of directors.
At an August 24, 2021 executive meeting attended by plaintiff,
Gunnarsson stated that German management was forcing him to step aside from
day-to-day operations at the end of that year and wanted him to choose his
successor. According to plaintiff, the collective recommendation of the
meeting's attendees was that he was the best choice to succeed Gunnarsson.
On October 29, 2021, John Breheny, Rema's chief operating officer,
informed plaintiff that Gunnarsson insisted Breheny wire €99,500 to Werner
Heumüller, a former executive at the Rema Group in Germany, who was also
Gunnarsson's personal friend and "political ally." The wire request was
"purportedly based on an invoice for consulting services," which Gunnarsson
admitted to Breheny was "fraudulent." Breheny confirmed with plaintiff that
Heumüller did not provide consulting services to the company, and Gunnarsson
admitted the invoice was "a pretext for payment" because he believed that Reiff
and/or Übelacker "screwed" Heumüller on his exit package, and Gunnarsson
A-0084-24 4 wanted to "make it right." Plaintiff objected and advised Breheny against wiring
the funds, which were on deposit in a New Jersey bank.
On November 4, 2021, plaintiff, "in accordance with his fiduciary, ethical
and professional obligations," and after consulting several attorneys, informed
Übelacker of Gunnarsson's "unlawful and fraudulent" conduct. Subsequently,
Gunnarsson learned plaintiff had disclosed his wrongful conduct to Übelacker.
On both November 5 and 8, 2021, after Gunnarsson learned that plaintiff had
told Breheny about Gunnarsson's "unlawful conduct," Gunnarsson advised
plaintiff that neither he nor Breheny would "survive this." In addition, plaintiff
alleges Gunnarsson advised him that he "had intended to recommend" plaintiff
to Rema AG as his successor as Rema's CEO, but plaintiff "had cost himself the
opportunity to run the [c]ompany by reporting Gunnarsson's fraudulent
conduct."
Plaintiff then sought Übelacker's help, but he "turned a deaf ear" to
plaintiff's complaints. According to plaintiff, prior to Gunnarsson's departure
for Europe, he informed other Rema employees that plaintiff "would not be able
to retain his position upon Gunnarsson's return."
Between November 12 and 27, 2021, Gunnarsson traveled to Germany for
previously planned meetings with Rema AG's supervisory board, as well as
A-0084-24 5 meetings with Übelacker and Reiff, Übelacker's direct supervisor. While
Gunnarsson was in Germany, plaintiff attempted to contact Übelacker, who
failed to return his calls. According to plaintiff, by the time Gunnarsson
returned from Europe, neither Übelacker nor any other Rema or Rema AG
employee had responded to plaintiff's calls or recommendation for an "outside
investigation." After blocking the caller ID, plaintiff called Übelacker, who
answered the call. Übelacker advised plaintiff he was in a board meeting but
"promised" to return the call "in one hour's time," but never did. Plaintiff alleges
Übelacker told Gunnarsson to instruct plaintiff "to stop calling Germany."
On December 7, 2021, Gunnarsson allegedly informed plaintiff that he
had no future with Rema and advised him to start looking for a new job because
Gunnarsson intended to terminate him upon finding plaintiff's replacement.
Gunnarsson also told plaintiff to stop calling Germany. Gunnarsson allegedly
began interviewing candidates to replace himself as CEO, as well as candidates
to replace plaintiff as CLO. After December 2021, Gunnarsson allegedly
deprived plaintiff of new assignments and excluded him from meetings,
conference calls and other business dealings in which he customarily
participated "prior to blowing the whistle" on Gunnarsson's "unlawful,
A-0084-24 6 fraudulent conduct." Ultimately, Gunnarsson stopped speaking to plaintiff
altogether.
In addition, plaintiff alleges that defendants denied him a bonus in early
2022 in "retaliation" for his protected activities but paid "substantial bonuses"
to other "high-level employees." Further, plaintiff alleges defendants denied
him a 2022 salary increase while granting increases to other high-level
employees and retaliated against him by passing him over for promotion to CEO.
In a February 5, 2022 email, Gunnarsson stated he intended to terminate
plaintiff's employment because he had reported Gunnarsson's "unlawful
activity" to Rema AG. During a February 11, 2022 phone conversation with
plaintiff, Gunnarsson stated his reporting of him "had ended [plaintiff's] career
with Rema."
On May 24, 2022, plaintiff filed his lawsuit against defendants. Several
weeks later, on July 5, 2022, Gunnarsson, Übelacker, and Reiff interviewed an
outside candidate to replace Gunnarsson as regional president. The next day,
Reiff and Übelacker met with counsel in New York about plaintiff's lawsuit. On
August 19, 2022, Rema hired a new employee as regional president. Plaintiff
alleges defendants' "retaliatory actions" created a "hostile work environment."
A-0084-24 7 Plaintiff claims he was passed over for promotion to president and CEO
of Rema America and regional president of Rema America in retaliation for his
whistleblowing activities. Rather than promoting him as planned, plaintiff
alleges defendants split Gunnarsson's position in two and transferred or intended
to transfer Gunnarsson's job duties to two other individuals. In his second
amended complaint, plaintiff demanded back pay, front pay, compensatory
damages for emotional pain, suffering, and humiliation, punitive damages,
attorney's fees, and costs.
On October 5, 2023, plaintiff served defendants with a notice of
deposition of Reiff in accordance with Rule 4:141 to be held by remote
videoconference on November 9, 2023. Reiff would not appear on that date.
Plaintiff attempted to re-schedule Reiff's deposition and served another notice
of deposition on defense counsel requesting Reiff be produced—this time in
person—for a deposition on January 10, 2024, at Rema's Woodcliff Lake office,
but did not get a response. A week later, plaintiff filed a motion to compel
defendants to produce Reiff for a deposition on February 2, 2024, at defense
1 In pertinent part, Rule 4:14-1 provides: . . . "after commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination."
A-0084-24 8 counsel's New York City office and for sanctions. Defendants counter they were
unsuccessful in scheduling Reiff's deposition.
Following oral argument on March 22, 2024, the trial court denied
plaintiff's motion to compel defendants to produce Reiff for a deposition. The
trial court ruled that plaintiff had to "subpoena" Reiff, finding defendants did
not have "control" over Reiff and because he is not a named defendant in the
case. The trial court determined under Rule 4:14-1, plaintiff is entitled to depose
Reiff "in his individual capacity."
The trial court observed that Reiff's testimony "would not be cumulative"
because he has "personal knowledge" of "material facts," in particular related to
"comments and conversation[s]" about filling positions. The trial court denied
plaintiff's motion to compel and request for sanctions. The March 25, 2024
memorializing order states "[d]efendants [] do not have control over . . . Reiff
as he is not a defendant in this case" and goes on to state, "The deposition of . . .
Reiff shall be requested via subpoena. The deposition shall take place in New
Jersey or a neighboring state that is convenient for all parties."
Plaintiff filed a motion for reconsideration. On April 19, 2024, the trial
court entered an order denying the motion for reconsideration. However, the
trial court observed it "may not be possible" for plaintiff to secure Reiff's
A-0084-24 9 attendance at a deposition in New Jersey by way of subpoena. We denied
plaintiff's motion for leave to appeal on this issue.
On August 2, 2024, the trial court granted plaintiff's motion for leave to
file a third amended complaint to add successor liability claims against OWG
Beteiligungs AG (OWG), which had acquired all of Stahlgruber's outstanding
stock.2 On September 18, 2024, the trial court granted plaintiff's motion to
amend the August 2, 2024 order to permit plaintiff to depose Reiff, who is also
the CEO of OWG, on the merits of plaintiff's CEPA claim. The trial court noted
"OWG is now a defendant and has control over Reiff." On September 9, 2024,
our Supreme Court granted leave to appeal and remanded the appeal to this court
for a decision on the merits.
On appeal, plaintiff argues the trial court abused its discretion by requiring
him to subpoena Reiff for a deposition knowing Reiff lives in Germany and is
beyond the jurisdictional power of a subpoena. Plaintiff asserts the trial court
summarily concluded that Reiff was not within defendants' control without
performing a robust analysis and considering the D'Agostino3 factors. Plaintiff
2 According to plaintiff, Stahlgruber merged with OWG in September 2023. 3 D'Agostino v. Johnson & Johnson, 242 N.J. Super. 267, 273 (App. Div. 1990).
A-0084-24 10 contends the orders under review deprive him of fundamental discovery he is
entitled to under the court rules, and the disputed facts demonstrate the corporate
defendants' control over Reiff, which is "implicit" under Rule 4:14-2.4 Plaintiff
also asserts the trial court abused its discretion in denying his motion for
reconsideration. 5
4 Rule 4:14-2 provides in pertinent part:
(a) Notice. Except as otherwise provided by R[ule] 4:14-9(b), a party desiring to take the deposition of any person upon oral examination shall give not less than [ten] days notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, which shall be reasonably convenient for all parties, and the name and address of each person to be examined, if known, and, if the name is not known a general description sufficient to identify the person or the particular class or group to which the person belongs. If a defendant fails to appear or answer in any civil action within the time prescribed by these rules, depositions may be taken without notice to that defendant. 5 Following oral argument before this court, plaintiff filed a motion seeking to supplement the record with a certification authored by plaintiff's counsel about Reiff's deposition and conversations with OWG's counsel about scheduling Reiff's deposition. We denied the motion on March 6, 2025.
A-0084-24 11 II.
We review a trial court's discovery order under an abuse of discretion
standard. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
Generally, a reviewing court will "defer to a trial court's disposition of discovery
matters unless the court has abused its discretion or its determination is based
on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378
N.J. Super. 68, 80 (App. Div. 2005) (citing Payton v. N.J. Tpk. Auth., 148 N.J.
524, 559 (1997)).
An abuse of discretion "arises when a decision is made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)
(internal quotation marks omitted). Reversal is warranted only if "the
discretionary act was not premised upon consideration of all relevant factors,
was based upon consideration of irrelevant or inappropriate factors, or amount s
to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App.
Div. 2005). In contrast, we owe no deference to the trial court's legal
conclusions and examine them under a de novo standard of review. Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A-0084-24 12 We will not disturb a trial court's denial of a motion for reconsideration
under Rule 4:49-2 absent a clear abuse of discretion. Branch v. Cream-O-Land
Dairy, 244 N.J. 567, 582 (2021); Kornbleuth v. Westover, 241 N.J. 289, 301
(2020); Hoover v. Wetzler, 472 N.J. Super. 230, 235 (App. Div. 2022). "[An]
abuse of discretion only arises on demonstration of 'manifest error or
injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,
183 N.J. 554 572 (2005)), and occurs when the trial judge's "decision is 'made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" Milne v. Goldenberg, 438 N.J. Super.
184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J.
561, 571 (2002)).
Plaintiff argues the trial court inexplicably found that Reiff's status as a
director did not establish the corporate defendants' control over him and
misapplied D'Agostino to require plaintiff "to show something more."
"Although the [court] rules do not specifically state that a proposed corporate
deponent must be under the control of the corporate party in order to require the
deponent's presence, such control must exist before a party can be compelled to
produce a deponent." D'Agostino, 242 N.J. Super. at 273. Thus, "control by a
A-0084-24 13 corporate party over its officers, directors and managing agents is implicit within
the rule." Ibid. (citing R. 4:14-2(c)).
As we explained in D'Agostino:
R[ule] 4:14-2 sets forth the requirements for notices of depositions, including those to corporate entities. R. 4:14-2(c). While it is true that the rule pertinent to document discovery is not directly applicable, . . . defendants are incorrect in their assertion that the issue of "control" is not relevant to whether they must produce subsidiary executives for depositions. See Pressler & Verniero, [Current N.J. Court Rules], cmt. 3 on R. 4:14-2(c) [(1990)]; Sykes Intern., Ltd. v. Pilch's Poultry Breeding Farms, Inc., 55 F.R.D. 138, 139 (D. Conn. 1972). Although the rules do not specifically state that a proposed corporate deponent must be under the control of the corporate party in order to require the deponent's presence, such control must exist before a party can be compelled to produce a deponent. See Sykes Intern., Ltd., 55 F.R.D. at 139. Therefore, the factor of control by a corporate party over its officers, directors and managing agents is implicit within the rule. See R. 4:14-2(c).
The rules pertaining to subpoenas are set forth in R[ule] 4:14-7 and contain provisions relevant to taking depositions of non-residents. R. 4:14-7(b). These include reasonable time and place requirements. R. 4:14-7(b). The rules pertaining to notices of depositions and compelling discovery are modeled after the Federal Rules of Civil Procedure and are substantially the same. See Pressler & Verniero, cmts. on R. 4:14-1, 4:14-2 and 4:23-1.
[Ibid.]
A-0084-24 14 As plaintiff points out, we rejected the argument that a non-party officer,
director, or managing agent must be subpoenaed for a deposition. Moreover,
under the New Jersey Court Rules, parties are considered the "directors,
executives, and employees" of a corporate defendant. See Pressler & Verniero,
cmt. 1 on R. 4:14-2(a) ("As to corporate employees whose attendance may be
secured by notice rather than subpoena, see D'Agostino, 242 N.J. Super at 267,
holding that a corporate party is required to produce those directors, executives,
and employees of its subsidiaries who are under its control.")
Defendants counter they did not have control—prior to the September 18,
2024 order—because there is no evidence to "conclusively demonstrate that
Rema AG and Stahlgruber have control over Reiff for deposition purposes."
Defendants further aver that the "primary evidence" plaintiff relies on is
counsel's attempt to coordinate Reiff's deposition, which would have
"streamlined discovery" and "avoided prolonged motion practice." Defendants
contend plaintiff's effort was "clearly unsuccessful" as Reiff did not appear for
a deposition, and this further demonstrates defendants' "lack of control" over
him. We are unpersuaded by defendants' arguments.
The defendants in D'Agostino argued that the foreign subsidiary and its
executives were "separate legal entities, the individuals were unrelated to the
A-0084-24 15 case . . . and were prohibited from participating in depositions under Swiss law."
242 N.J. Super. at 270. We disagreed, pointing to the fact that defendants were
corporate parents of the wholly-owned subsidiary, "own[ed] all the stock of the
subsidiary corporations whose executives are subject to depositions, . . .
share[d] in financial arrangements[,] and report[ed] back to [defendants']
headquarters in New Jersey." Id. at 276.
Further, we reasoned that "one of the proposed deponents offered a
certification in favor of defendants at the outset of the case. Thus, he has already
participated in the proceedings." Id. at 275. As a result, there was a "sufficiently
close relationship between [defendants] and its wholly-owned subsidiaries to
require it to produce the requested foreign-based executives. There is a common
identity between officers of [defendants'] various subsidiaries . . . and itself."
Id. at 276 (citation omitted).
Here, although Reiff is not a directly named defendant, he serves on the
board of directors of several of the named defendants in the case. Moreover, no
one disputes that Reiff has knowledge concerning the facts of this case.
Consequently, we are satisfied that defendants in the matter under review
exercise much more control over Reiff than existed in D'Agostino.
A-0084-24 16 Critically, the record shows Reiff's role in the corporate structure was not
one of a neutral, non-party witness. On the contrary, the record contains ample
evidence of Reiff's direct oversight of defendants' corporate operations and his
supervisory role with the corporate defendants, Übelacker, and Gunnerson. By
way of example, plaintiff propounded the following interrogatory with subparts
upon Rema:
1. [i]dentify all persons having knowledge of facts relevant to this action, and with respect to each such person, set forth the following:
(a) [f]ull name;
(b) [h]ome address, home telephone number, cellular telephone number and email address;
(c) [c]urrent employer, office address, work telephone number and work email address; and
(d) [t]he nature of the information you believe he or she possesses.
Defendant Rema responded:
Heinz Reiff
• Employer: [Rema AG]; Gruber Strabe 63, 85586 Poing.
• Upon information and belief, . . . Reiff has knowledge and information relating to the facts and defenses of this matter.
A-0084-24 17 Thus, defendant Rema clearly identified Reiff as an employee of Rema AG, with
"knowledge and information" relevant to this matter, which contradicts
defendants' contention "nor is Reiff an employee of Rema AG."
Further, at Gunnarson's deposition, the following transpired:
[Plaintiff's Attorney]: . . . Gunnarson, I've shown you what's been marked as P-70. This is a July 7, 2022 email from Mr. . . . to . . . Übelacker and to you. Do you see that?
[Gunnarsson]: Yes.
[Plaintiff's Attorney]: He's thanking . . . Reiff, . . . Übelacker and you for taking the time to meet with him to discuss the position. Do you see that?
(Witness reviews.)
[Gunnarsson]: Yeah, I don't remember this. I don't remember having met with him on [July 5, 2022].
[Plaintiff's Attorney]: That doesn't refresh your recollection?
[Gunnarsson]: Nope.
[Plaintiff's Attorney]: Okay. After . . . Reiff, . . . Übelacker and you completed the meeting with Mr. . . . , did the three of you discuss Mr. . . . candidacy?
[Gunnarsson]: Yeah, I guess we talked about it. I don't remember the details of it. We went back to the New Jersey office. We had met in the [c]ity.
A-0084-24 18 [Plaintiff's Attorney]: What was said out loud about Mr. . . . when you discussed him with . . . Reiff and . . . Übelacker?
[Gunnarsson]: I think . . . Übelacker liked Mr. . . . and he was positive about hiring him, yeah.
[Plaintiff's Attorney]: Did . . . Reiff say anything?
[Gunnarsson]: I don't remember.
[Plaintiff's Attorney]: Did you say anything?
[Gunnarsson]: No.
[Plaintiff's Attorney]: You didn't tell them that you wanted to hire Mr. . . . ?
[Plaintiff's Attorney]: When was the decision made to make an offer to Mr. . . . ?
[Gunnarsson]: I guess somewhere during that meeting. I can't remember.
[Plaintiff's Attorney]: Who made that decision?
[Gunnarsson]: The decision was made by the German management.
[Plaintiff's Attorney]: Did you make—
[Gunnarsson]: Or, should I say, the final decision was made by them. I was involved in the discussions, but the final decision was made by them.
A-0084-24 19 The record is clear that in July 2022, Reiff, along with Übelacker and
Gunnarsson, travelled to New Jersey and New York City to interview a
candidate to replace Gunnarsson as CEO, instead of plaintiff. And, Gunnarsson
explicitly stated that the final decision to hire his replacement was made by
German management, who are Übelacker and Reiff.
In Rema AG's answer to interrogatory number twenty-seven, it stated
"neither Rema AG nor Übelacker retaliated against [p]laintiff, as they were not
the decisionmakers regarding who would succeed to Gunnarsson's position [,]
and had no control over the terms and conditions of [p]laintiff's employment."
This response is in direct contradiction to Gunnarsson's deposition testimony, in
which he stated that it was "German management" who made the final decision
on who to hire as Gunnarsson's replacement.
We are satisfied Reiff had a direct supervisory role over this decision-
making process along with Übelacker. The trial court abused its discretion by
finding Reiff's status as a director did not establish defendants' corporate control
over him for deposition purposes and denying plaintiff's motion to compel
defendants to produce Reiff for a deposition. It is unrefuted that the corporate
defendants sent Reiff to New York to interview outside candidates proposed by
Gunnarsson to replace him and met with counsel regarding plaintiff's lawsuit.
A-0084-24 20 As we recognized in D'Agostino, "[w]hen peculiar circumstances exist
that warrant the taking of depositions outside the jurisdiction where the deponent
resides, or at a location other than the corporation's principal place of business,
then a court may order depositions be taken elsewhere." 242 N.J. Super. at 277.
We reasoned that these "peculiar circumstances" include "the relative financial
burdens of the parties to the litigation," "a sufficiently close relationship"
between the corporations to establish "[t]he requisite element of control," [and]
whether "taking depositions in New Jersey would result in a substantial
disruption of the proposed deponents' lives and work . . . ." Id. at 276-77.
Here, as in D'Agostino, the balancing of the factors weighs in plaintiff's
favor. Reiff is a foreign-based employee and corporate officer who defendants
have acknowledged has information and knowledge relevant to the issues raised
in the second amended complaint and subsequent pleadings. There is no
showing on this record that requiring Reiff's deposition to take place in person
in New Jersey would be an excessive burden or would interfere with defendants'
operations or the enterprise as a whole. Gunnarsson testified that Reiff was
involved with hiring his replacement. Given Reiff's status in the corporate
conglomerate and role in relation to the litigation as well as the intertwinement
of the business entities, we conclude the trial court abused its discretion in
A-0084-24 21 finding defendants have no control over him and order he be produced by
defendants for a deposition.
In sum, we:
(1) reverse the March 25 and April 19, 2024 orders; and
(2) remand this matter with direction that the trial court enter an order directing defendants to produce Reiff for a deposition within thirty days at defendants' expense in New Jersey at a location and time that is convenient for Reiff and counsel for all parties.
Reversed and remanded. We do not retain jurisdiction.
A-0084-24 22