New Jersey Court Affirms Strict Damages Disclosure in Complex Litigation: Lessons from Wiggins Plastics v. County of Passaic

Introduction: Damages Disclosure at the Center of a Complex Flood Litigation

In high-stakes business litigation, especially under New Jersey’s Complex Business Litigation Program (CBLP), the rules governing discovery are not just technicalities—they can decisively shape the outcome of a case. This was made clear in the recent decision in Wiggins Plastics, Inc. and Knickerbocker Bed Company v. County of Passaic, et al., where the court addressed whether plaintiffs could avoid producing detailed damages calculations and supporting documentation. The court’s answer: unequivocally no.

This opinion provides a roadmap for businesses and attorneys navigating damages discovery, emphasizing the necessity of transparency, specificity, and compliance with procedural rules—or risk being barred from using key evidence at trial.

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Case Background and Procedural History

The litigation arose after catastrophic flooding during Storm Ida on September 1, 2021, allegedly caused by construction activities undertaken by Assuncao Brothers, Inc., the County’s contractor, during a bridge replacement project adjacent to Wiggins Plastics’ industrial property. Plaintiffs, Wiggins Plastics, Inc. and Knickerbocker Bed Company, claim damages exceeding $11 million, asserting that the County negligently selected Assuncao, whose work—including demolition, riverbank modification, and cofferdam construction—contributed to the flooding.

After years of discovery (spanning over 1,100 days), the parties reached an impasse over damages-related document production. Specifically, Defendants demanded that Plaintiffs produce all documents supporting their damages claims, organized by specific categories (e.g., stock losses, machinery damage, lost profits) at the deposition of Richard Polevoy, Plaintiffs’ principal.

Plaintiffs argued that they had already produced “thousands of pages” and that further segregation or identification of relevant documents would be unduly burdensome. They sought a protective order to preclude or limit this production, contending that the requests were duplicative, exceeded discovery deadlines, and improperly sought work product.

The Special Adjudicator denied the Plaintiffs’ motion and recommended that Plaintiffs produce detailed damages computations and supporting documents, warning that failure to do so would preclude Plaintiffs and their experts from relying on unproduced or unidentified materials at trial. Plaintiffs appealed this recommendation to the presiding judge, who affirmed the Adjudicator’s findings in a detailed written opinion.

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Legal Issues Before the Court

The court addressed three interrelated discovery issues:

1. Whether Plaintiffs were required to produce a computation of damages, with supporting documentation, as demanded by Defendants.
2. Whether Plaintiffs were entitled to a protective order to preclude or limit the production of damages-related documents.
3. Whether Plaintiffs and their experts should be barred from relying on any spreadsheets or documents not timely produced or identified in discovery.

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Legal Standards Applied

Rule 4:10-3 – Protective Orders

Under Rule 4:10-3, a party may seek a protective order to shield itself from “annoyance, embarrassment, oppression, undue burden or expense.” The movant bears the burden of demonstrating “good cause,” which the court determines after “a detailed analysis of the circumstances of the parties and issues involved.” (See Catalpa Inv. Group, Inc. v. Franklin Twp. Zoning Board of Adjustment, 254 N.J. Super. 270, 273-74 (Law. Div. 1991); Kerr v. Able Sanitary & Env't Servs., Inc., 295 N.J. Super. 147, 155 (App. Div. 1996)).

Rule 4:103-1(a)(3) – Damages Computation in Initial Disclosures

This rule, specific to CBLP cases, obligates each party—without awaiting a discovery request—to provide “a computation of each category of damages claimed” and “make available…the documents or other evidentiary material…on which each computation is based.” This obligation is ongoing and not excused by prior deadlines or the passage of time.

Rule 4:18-1 – Production of Documents

Rule 4:18-1(b) requires that requests for production “set forth the items to be inspected…by category” and that responses either produce the requested items or state objections with specificity. Documents must be produced as they are kept in the usual course of business or organized to correspond with the request.

Rule 1:6-6 – Certifications

Any certification in support of a motion must be authored by an individual with personal knowledge of the facts asserted.

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The Court’s Analysis and Holding

Plaintiffs Failed to Demonstrate Good Cause for a Protective Order

The court found that Plaintiffs did not meet their burden under Rule 4:10-3. Plaintiffs’ only support was a certification from their attorney, not from anyone with personal knowledge (such as Mr. Polevoy or company staff), violating Rule 1:6-6. The certification contained “conclusory statements without any factual support” regarding burden or expense, and Plaintiffs provided no evidence that identifying or producing the requested documents would be unduly burdensome.

“Plaintiffs did not meet their burden to establish that the subject discovery should not be had.”
“There is no certification from Polevoy or anyone else associated with plaintiffs claiming that production of documents, or identifying the previously served documents by Bates Stamp numbers, would be unduly burdensome or expensive.” (Opinion)

Damages Computation and Supporting Documentation Are Mandatory

The court underscored that Rule 4:103-1(a)(3) requires a party to provide a computation of damages and to disclose the documents on which those computations are based. Plaintiffs’ prior productions consisted largely of spreadsheets prepared by their expert (the Rollins accounting firm) that categorized damages, but these spreadsheets lacked the underlying evidentiary support (e.g., invoices, receipts, contracts).

“Without any evidence that plaintiffs have produced ‘a computation of each category of damages claimed [and] the documents or other evidentiary material, ... on which each computation is based,’ R. 4:103-1(a)(3), they cannot rely on such documents at trial.” (Opinion)

The court rejected Plaintiffs’ argument that requiring them to identify or segregate supporting documents was overly burdensome, noting that only Plaintiffs and their experts could know which documents underpinned their damages calculations.

Ongoing Obligation and Consequences for Non-Compliance

The court clarified that the duty to provide damages computations and supporting materials is ongoing; it is not nullified by the expiration of a prior document production deadline. The court expressly held that if Plaintiffs fail to produce or identify the supporting documentation for their claimed damages, they and their experts will be barred from relying on those materials at trial:

“If calculations and supporting documents backing up the spreadsheets’ calculations are not produced or are not identified by Bates Stamp references to documents already produced, then plaintiffs and their experts should be barred from relying upon the spreadsheets or unproduced or unidentified documents at trial.” (Order)

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Practical Implications for New Jersey Businesses

This opinion is a stark reminder that in New Jersey’s business courts, especially under the CBLP, damages claims are subject to strict discovery requirements. Businesses cannot simply “data dump” large volumes of documents and expect opposing parties (or the court) to piece together their damages claims. Instead, they must:

• Provide a clear computation of each category of damages.
• Identify and produce the underlying documents supporting each computation.
• Ensure that all certifications in support of discovery motions are made by individuals with actual, personal knowledge.

Failure to meet these obligations can result in severe sanctions—including being barred from presenting key damages evidence at trial. This risk is particularly acute in cases involving complex business losses, where damages calculations often rest on detailed financial records, expert reports, and supporting documentation.

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Actionable Takeaways for Business Owners and Practitioners

1. Organize and Disclose Early: At the outset of litigation, compile damages computations and all supporting documents. Do not rely on prior bulk productions; instead, clearly link each category of damages to its supporting evidence.

2. Respond Specifically to Discovery Requests: When faced with requests for damages documentation, respond by identifying documents by Bates number or other specific references, organized by the categories set forth in the notice or as used by your own experts.

3. Certify with Personal Knowledge: Any motion for a protective order or similar relief must be supported by a certification from someone with direct, personal knowledge of the facts surrounding the alleged burden or expense.

4. Update as Needed: The obligation to disclose supporting documents for damages is ongoing. If new documents are created or identified, supplement your disclosures promptly.

5. Understand the Consequences: Non-compliance can lead to exclusion of damages evidence at trial, potentially dooming even meritorious claims.

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Conclusion: Consult Experienced Counsel for Discovery Strategy

The Wiggins Plastics decision is a clear signal from New Jersey’s business courts: damages discovery is not optional, and compliance must be thorough and well-documented. Businesses involved in complex litigation must take a proactive, organized approach to damages disclosure—or risk losing the ability to prove their losses at trial.

If your business is facing or pursuing significant litigation, consult experienced New Jersey business litigation counsel to ensure your discovery practices meet the exacting standards of the CBLP and to protect your claims or defenses from procedural pitfalls.