The court granted leave to appeal and summarily vacated an order that denied reconsideration of an earlier interlocutory order because the judge invoked the "palpably incorrect" standard, which applies only to Rule 4:49-2 motions to alter or amend a final judgment or final order, instead of the more liberal standard of Rule 4:42-2, which declares that interlocutory orders "shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." The court also found the judge erred by giving undue deference to the prior judge's interlocutory order and by applying the law of the case doctrine, which has no bearing in this setting.
In remanding, the court provided guidance about the prior order that precluded a non-party, who failed to appear for a subpoenaed deposition, from testifying at trial. The court observed that the first judge had applied Rule 4:23-2, which applies only to parties, instead of Rule 1:9-5, which applies when a non-party fails to honor a subpoena. The court directed that the trial judge, in ruling on the reconsideration motion, consider how the latter rule's purpose is to secure the non-party's compliance with the subpoena, not to hamper the trial's search for the truth by eliminating the non-party's potentially relevant testimony.