Foot dragging by defense lawyers on document production in a wrongful discharge suit against a New Jersey county, coupled with disingenuous excuses, has caused a federal judge to issue sanctions.
U.S. Magistrate Judge Joel Schneider on Sept. 20 ordered Cape May County to reimburse plaintiff Arthur Montana for costs he incurred. The document requests, served on the county’s board of freeholders in 2009 and 2010, were not filled until September 2012.
Cape May’s delay caused Montana to incur “substantial incremental costs,” including those for redeposition of key witnesses about the new documents, as well as participation in hearings related to Cape May’s late production and the filing of related letters and briefs, Schneider said in Montana v. County of Cape May Board of Freeholders.
Schneider said Cape May’s excuses for its tardiness are “far from convincing.” For one, he called “absurd” the county’s assertion that it should not be blamed for its initial failure to search for documents that mention “Art Montana” instead of the plaintiff’s full name.
“It is stupefying that in December 2012, the Court had to order defendant to conduct [a search] for documents mentioning ‘Art’ and ‘Art Montana’ and that the search identified relevant documents at that late date that were not already produced. The Court would be flabbergasted if plaintiff did not rightfully assume that his designation of the search term “Arthur Montana” did not also subsume a search for ‘Art,’ ‘Art Montana’ and ‘Montana.’”
Schneider also rebuked Cape May for asserting that it failed to produce certain documents related to Montana because they were not kept in the plaintiff’s personnel file. But he rejected the plaintiff’s assertions that the delays warranted finding the county in default, adjourning the Oct. 28 trial date or permitting additional discovery.
Montana was employed by Cape May County as a juvenile family crisis counselor from 1999 until he was laid off in December 2011. The county said he was let go because of a budget shortfall, but his suit claimed he was fired for complaining about alleged ex parte communications his supervisor, Diane Lanzetta, had with a Superior Court judge about pending cases. His suit claimed violations of the Conscientious Employee Protection Act and federal civil rights law.
In two cases in 2007, he appeared before Superior Court Judge Kyran Connor in the Family Part, recommending that teenagers experiencing family problems be sent to a county-run youth shelter. He claimed that Connor followed his recommendations, but the judge reversed his ruling after Lanzetta contacted the judge and disputed Montana’s recommendations. He complained to the county administrator and freeholder board about Lanzetta’s conduct, then was subject to discipline he claims was unwarranted.
Montana filed his suit against County Counsel Barbara Bakley-Marino, the freeholders and Lanzetta in February 2009. He filed a separate civil suit against Connor in July 2010, but it was dismissed in September 2011.
The attorney for Cape May, Virginia Pallotto of Budd Larner in Short Hills, did not respond to two phone messages and an email on Monday.
Montana’s lawyer, Louis McFadden, a solo in Linwood, says he has yet to complete the fee petition for work necessitated by the discovery violations, which he calls “substantial.”
The discovery delays “sidetracked our efforts tremendously,” he says, noting the court denied his motions to find the county in default, to adjourn the trial date and to permit more discovery.
Among the 4,000 pages of late-filed documents, McFadden says, is a report of an investigation Bakley-Marino carried out in 2010 in response to a union grievance about a hostile work environment in Montana’s department. The investigation was initially focused on Montana’s supervisor, Louis Ginsberg, but much of the report is made up of criticism of Montana by his co-workers, says McFadden. Because Montana was not aware of any problems with his co-workers, the report came as a surprise, and prejudiced the plaintiff’s case, says McFadden.
“We think the strategy of our entire case was turned upside down by the late production,” says McFadden.