The Newark Watershed Conservation & Development Corp. is seeking permission to examine electronic devices belonging to the law firm of Trenk, DiPasquale, Della Fera & Sodono.
The NWCDC, which filed for Chapter 11 bankruptcy in 2015, moved on Monday to compel a forensic analysis of devices belonging to Trenk DiPasquale and attorneys Elnardo Webster II and Jodi Luciani in connection with their representation of the agency from 2006 to 2012. The agency sought permission to examine the firm’s devices because repeated requests for emails from Trenk DiPasquale, Webster and Luciani failed to bear fruit.
The agency said its request should be granted because billing records from the firm’s representation of the NWCDC reference “many hundreds” of emails but only one such message has been produced in discovery. Trenk DiPasquale, Webster and Luciani have given no explanation for their failure to produce the emails, but the Watershed seeks to learn if they still exist or what happened to them, it said in its brief.
The NWCDC is seeking the emails related to its representation by Trenk DiPasquale in an effort to recoup damages from a period of lax oversight of the agency. The agency filed a wide range of adversary claims against employees, contractors and advisers. Its court-appointed trustees have collected more than $3 million on its behalf, including $1 million from the Newark firm of Genova Burns, which represented the agency in 2012 and 2013 after luring Webster and Luciani from Trenk DiPasquale.
The NWCDC first asked Trenk DiPasquale for the emails and other documents in September 2016. The law firm failed to meet an October deadline. At a Dec. 13, 2016, status conference, Brian McEvoy of Graham Curtin in Morristown, who represents Trenk DiPasquale in the Watershed bankruptcy case, conceded to the court that there have been “excessive delays in compiling the information we require for our document production.” McEvoy promised to comply with the request by Dec. 23, 2016. But on Dec. 22, the day before McEvoy’s self-selected deadline, he filed a motion to dismiss based on failure to comply with the affidavit of merit statute. On Jan. 18, the motion was denied.
On Jan. 27, Trenk DiPasquale made an initial document production but failed to produce any emails from 2007 or 2008 and only one for 2009.
Courts have authorized or compelled forensic examination of an opposing party’s electronic devices where there is reason to believe the opposing party has not been forthcoming, the NWCDC said in its motion papers.
“The evidence suggests very strongly that the Trenk defendants have not been forthcoming in discovery, and in the months that this issue has been under discussion, they have offered no plausible explanation,” the agency said. “A forensic examination of the Trenk defendants’ electronic devices is necessary to resolve the questions raised by the gaping hole in the Trenk defendants’ document production.”
The NWCDC said that either the Trenk DiPasquale time records are fraudulent or riddled with errors, the emails referenced in the time records existed at one time but were deleted, or the emails still exist but are being withheld by the Trenk DiPasquale defendants.
“We do not believe the Trenk defendants engaged in a multiyear billing fraud of a public entity. The more reasonable inference is that the time records are accurate and the emails referenced in them were actually sent or received as represented. The NWCDC is entitled to find out whether those emails still exist and, if not, what happened to them,” the NWCDC said.
The NWCDC seeks to have Trenk DiPasquale, Webster and Luciani catalogue of all devices, whether considered business or personal, capable of storing electronic data used by any of the Trenk DiPasquale defendants and or staff to conduct business or correspond with others between 2006 and 2013. The proposed order provides a long list of names and other terms that are to be used as search terms in the emails in question, including watershed, Municipal Utilities Authority, bylaws, charter, severance, hog wild, comptroller, U.S. Attorney and snow removal.
Newark Watershed was established in 1973 to conserve land in northern New Jersey that supplies drinking water to the city. A 2013 report by the New Jersey Office of the State Comptroller found that agency director Linda Watkins-Brashear received $700,000 in severance pay, gave $1 million in contracts to her friends and former husband, and invested $500,000 in risky stocks. In a separate criminal matter, Watkins-Brashear pleaded guilty in December 2015 to accepting nearly $1 million in kickbacks from agency vendors. She is scheduled for sentencing Friday, said James Scarpone of Scarpone & Vargo in Newark, who represents the NWCDC.
Scarpone said Trenk DiPasquale is “the last of the big ones, the outsiders,” still in the case, although some individual defendants are still being pursued in the agency’s litigation. He’s not sure what he will find if the motion to allow examination of the firm’s devices is granted. “It’s hard to define how big this job will be,” Scarpone said.
McEvoy, the lawyer for Trenk DiPasquale, Webster and Luciani, declined to comment about the motion.