Rule 4:23-5.Failure to Make Discovery

Last amended September 1, 2014 · Current through June 18, 2026 · Last verified July 7, 2026

In one sentenceRule 4:23-5 sets the two-step process for dismissing or suppressing a pleading when a party fails to answer interrogatories, produce documents, or submit to an examination — first an order without prejudice, then, after 60 days and with client notice, an order with prejudice — and allows restoration on providing the discovery and paying a fee.

Full Text of Rule 4:23-5

Text sizeJump to: (a) (b) (c)

(a) Dismissal.

(1) Without Prejudice. If a demand for discovery pursuant to R. 4:17, R. 4:18, or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may, except as otherwise provided by paragraph (c) of this rule, move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. The motion shall be supported by an affidavit reciting the facts of the delinquent party’s default and stating that the moving party is not in default in any discovery obligations owed to the delinquent party. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice. Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore. If the delinquent party is appearing pro se, service of the order and notice hereby required shall be made by counsel for the moving party. The delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice. The motion shall be supported by affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided and shall be accompanied by payment of a $100 restoration fee to the Clerk of the Superior Court, made payable to the “Treasurer, State of New Jersey,” if the motion to vacate is made within 30 days after entry of the order of dismissal or suppression, or a $300 restoration fee if the motion is made thereafter. If, however, the motion is not made within 90 days after entry of the order of dismissal or suppression, the court may also order the delinquent party to pay sanctions or attorney’s fees and costs, or both, as a condition of restoration.

(2) With Prejudice. If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client’s whereabouts have not been able to be determined and such service on the client was therefore not made. If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. The moving party need not appear but may be required to do so by the court. The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

(3) General Requirements. All motions made pursuant to this rule shall be accompanied by an appropriate form of order. All affidavits in support of relief under paragraph (a)(1) shall include a representation of prior consultation with or notice to opposing counsel or pro se party as required by R. 1:6-2(c). If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule. If the court is required to take action to ensure compliance or the motion for dismissal or suppression with prejudice is denied because of extraordinary circumstances, the court may order sanctions or attorney’s fees and costs, or both. An order of dismissal or suppression shall be entered only in favor of the moving party.

(b) Failure to Furnish Expert’s Report. The court at trial may exclude the testimony of a treating physician or of any other expert whose report is not furnished pursuant to R. 4:17-4(a) to the party demanding the same.

(c) Motion to Compel. Prior to moving to dismiss pursuant to subparagraph (a)(1) of this rule, a party may move for an order compelling discovery demanded pursuant to R. 4:14, R. 4:18 or R. 4:19. An order granting a motion to compel shall specify the date by which compliance is required. If the delinquent party fails to comply by said date, the aggrieved party may apply for dismissal or suppression pursuant to subparagraph (a)(1) of this rule by promptly filing a motion to which the order to compel shall be annexed, supported by a certification asserting the delinquent party’s failure to comply therewith.

End

Amendment History

New Jersey publishes each rule’s amendment record in a “History” note beneath the rule. It is reproduced verbatim below; the “R.R.” citations refer to the former Revised Rules numbering the current rules replaced.

Source - R.R. 4:23-6(c)(f), 4:25-2 (fourth sentence); paragraph (a); amended July 29, 1977 to be effective September 6, 1977; paragraph (a); amended July 16, 1981 to be effective September 14, 1981; paragraph (a); amended November 5, 1986 to be effective January 1, 1987; paragraph (a) caption; amended and subparagraphs (a)(1) captioned and; amended, and (a)(2) and (3) captioned and adopted, June 29, 1990 to be effective September 4, 1990; paragraph (a)(3); amended July 13, 1994 to be effective September 1, 1994; paragraph (a)(1); amended June 28, 1996 to be effective September 1, 1996; paragraph (a); amended July 10, 1998 to be effective September 1, 1998; caption; amended, paragraphs (a)(1) and (a)(2); amended, and new paragraph (a)(4) adopted July 5, 2000 to be effective September 5, 2000; paragraph (a)(1); amended and new paragraph (c) added July 12, 2002 to be effective September 3, 2002; paragraph (a)(1); amended and paragraph (a)(4) deleted July 27, 2006 to be effective September 1, 2006; paragraphs (a)(1) and (a)(2); amended July 9, 2008 to be effective September 1, 2008; subparagraphs (a)(1) and (a)(3); amended July 23, 2010 to be effective September 1, 2010; paragraph (c); amended July 19, 2012 to be effective September 4, 2012; paragraphs (a)(1) and (c); amended July 22, 2014 to be effective September 1, 2014.

Plain-English Summary

This is New Jersey’s central sanction for a party that does not provide required discovery, and it works in two stages. When a demand under the interrogatory, document, or examination rules is not met and no timely extension or protective-order motion was made, the aggrieved party moves for an order dismissing or suppressing the delinquent party’s pleading without prejudice. The delinquent party’s counsel must then notify the client, in the prescribed form, of the consequences and the need to move to restore, and the pleading can be restored by providing the discovery and paying a restoration fee.

If the default persists, the sanction hardens. After 60 days without vacation of the without-prejudice order, the aggrieved party may move to dismiss or suppress with prejudice, with strict notice-to-the-client and appearance requirements, and that motion is granted unless the discovery has been fully provided or exceptional circumstances are shown. The rule also lets a party move to compel first, and separately allows the court to bar an expert whose report was not furnished.

Frequently Asked Questions

What happens if you do not answer discovery in New Jersey?

The other side may move to dismiss or suppress your pleading — first without prejudice under Rule 4:23-5(a)(1), and, if the default continues for 60 days, with prejudice under (a)(2). The dismissal can be undone by providing the discovery and moving to restore, with a fee.

How do you restore a pleading dismissed for failing to provide discovery?

Move on notice to vacate the dismissal, supported by an affidavit that the withheld discovery has been fully and responsively provided, and pay the restoration fee ($100 within 30 days of the order, otherwise $300). Restoration must occur before an order with prejudice is entered.

Source & verification. The rule text and amendment history are reproduced verbatim from the official New Jersey Rules of Court (N.J. Ct. R. 4:23-5). Prescribed by the Supreme Court of New Jersey (N.J. Const. art. VI, § 2, ¶ 3). The plain-English summary is original and written by us. Last verified July 7, 2026. · Official source

Also known as: dismissal for failure to make discoveryfailure to make discoverydismissal without prejudicedismissal with prejudicemotion to restorerestoration feesuppression of pleading