BENEDETTO ("BEN" MORA v. PLEASANTVILLE BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BENEDETTO ("BEN") MORA,

Plaintiff-Respondent,

v.

PLEASANTVILLE BOARD OF

EDUCATION,

Defendant-Appellant.

_________________________________

October 21, 2013

Argued October 7, 2013 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-167-07.

Gerard W. Quinn argued the cause for appellant (Cooper, Levenson, April, Niedelman & Wagenheim, P.A., attorneys; Mr. Quinn, on the brief).

Sebastian B. Ionno argued the cause for respondent (Van Syoc & Weintraub, attorneys; Mr. Ionno and D. Rebecca Higbee, on the brief).

PER CURIAM

This is a civil rights action in which plaintiff Benedetto Mora seeks remedies against defendant Pleasantville Board of Education (the Board) for "reverse race discrimination and arbitrary and capricious hiring practices." By leave granted, the Board appeals from the February 13, 2013 order holding that "[t]he [p]leadings of [d]efendant Pleasantville Board of Education, are hereby stricken and suppressed with prejudice." We reverse.

I.

The facts of the underlying reverse discrimination action which we need not recount are largely collateral to the rather pedestrian procedural journey reflected in the record. The complaint was filed on January 27, 2007. After the Board answered in late February 2007, the parties exchanged discovery requests.

In November 2007, when the Board's discovery responses were overdue, Mora filed a motion to strike its answer without prejudice. The motion was withdrawn when the Board provided responses, although Mora contends that significant discovery delinquencies remained. The record reveals that, for at least the next four years, Mora took no further formal action to correct those putative deficiencies notwithstanding the parties' continued engagement in discovery, most notably, depositions.

On November 21, 2008, Mora's attorney served a "Supplemental Request for Production of Documents" on counsel for the Board. R. 4:18-1. The items included in the supplemental request were the following:

Any and all Regular Session and Executive Session Minutes regarding the Pleasantville School Board from January 2006-present. Including but not limited to all writings, notes and audio tapes.

The Board did not produce the requested items during the discovery period. Additionally, it neither sought a protective order pursuant to Rule 4:10-3 nor complied with Rule 4:18-1(b)(4) (requiring an objection to be made on specific grounds, and if privilege is claimed, to invoke the process required by Rule 4:10-2(e)). Again, Mora never sought to compel the production of these discovery materials during the discovery period, which expired on June 16, 2009.1 See R. 4:23-5(a).

Other discovery processes proceeded in due course. Depositions were conducted of plaintiff, several Board employees, and other witnesses. Even though the matter was theoretically ready for trial shortly after the discovery period ended in mid-2009, the case languished without a firm trial date until January 2013. The Board's unsuccessful motion for summary judgment was decided in November 2009.

At least thirteen scheduled trial dates came and went. By May 2012, Mora had issued a sixty-nine-item notice in lieu of subpoena to the Board pursuant to Rules 1:9-1 and -2.2 The notice demanded, among other things, that the Board produce "at the time of trial" the following Item 68:

68. All documents within your possession, custody or control relating, regarding, referring to or reflecting the minutes from the Board of Education meetings which took place on March 8, 14, June 16, July 11, and September 12 and 16, 2006.

It appears that the notice was renewed from time to time as the trial date was continually adjourned during the ensuing months.

In mid-2012, the Board moved to quash Mora's notice. On June 15, 2012, an order was entered denying such relief without prejudice. The order contains the following handwritten notation:

Denied w/o prej. to more specific order to quash.

During colloquy at oral argument, the motion judge observed that the Board's main argument against the notice was that it was a tardy, and stealthy, discovery request. However, because the Board did not specify which items in the notice had already been produced in discovery, the motion judge exclaimed, "I'm kind of working in the dark because I don't know what [the Board] provided. I don't know what you think is what." In apparent (and understandable) frustration, the judge stated, "[Counsel], here's the bottom line. I'm not going to be able to do this. I got another application to get to. . . . And I need you to be more specific in your application. What are you really objecting to?" While responding with limited specificity, the Board's attorney ultimately stated, "Well, [Item] 68 is specific and I appreciate that. [Sixty-eight] is fine." Mora's counsel responded, "Oh, wow. Thank you." We cannot tell from the transcript whether this was a genuine expression of gratitude or unvarnished sarcasm. In any event, it appears that the Board's initial objection to Item 68 had evaporated.

On June 26, 2012, counsel for the Board wrote Mora's attorney that, in response to Item 68, his client

will provide Board meeting minutes for March 14, 2006, July 11, 2006 and September 12, 2006. There were no meetings on the other listed dates.

Another seven months elapsed before Mora took any further action with respect to Item 68. On January 18, 2013, in anticipation of a trial date scheduled for January 28, 2013,3 Mora's counsel wrote the following note to the Board's attorney:

Please provide copies of the meeting minutes referenced in your letter dated June 26, 2012.

Less than two weeks later, the Board's counsel produced materials related to the September 12, 2006 meeting, which was followed by the production of data relating to the March 14 and July 11, 2006 Board meetings.

Even though Mora's counsel had never followed up before either during the discovery period or afterward the Board's production of Item 68 spurred a demand for additional information regarding the Board's meetings during the entire calendar year 2006. Eventually, Mora's attorney filed an in limine motion, which sought an order that the trial judge provide the jury with an adverse inference instruction against the Board due to its failure to produce discovery materials relating to its meetings for the balance of 2006. In an effort to forestall the giving of that instruction, the Board's attorney soon handed over a welter of materials including numerous compact discs, minutes, agendas, transcripts, and other documents relating to Board meetings throughout 2006. Mora's attorney understandably was taken aback by this highly concentrated production, and immediately moved, in limine, to strike the Board's answer with prejudice for its failure to produce discovery until the eve of trial.

The trial judge considered the motion on February 13, 2013.4 She was well aware that what Mora "is seeking is highly unusual and is asking this [c]ourt to impose the most severe sanction possible." Recognizing the rarity of the application, the trial judge proceeded cautiously.

After recounting Mora's discovery requests (including the post-discovery notice in lieu of subpoena), and the sparse record of discovery motions, the judge stated the following:

The defendant, knowing at all times that they had those documents, did not comply, did not send a privilege log, just sat back, except then they file a motion to quash. And [the motion judge] denies the motion to quash. So what do they do again? They sit back again.

The history of this case has to be troubling for anyone who wants to see efficiency in the court system; efficiency for both a plaintiff and a defendant. And I'm not very pleased with this history at all.

The judge went on to explicate the long history of trial adjournments, which she called "shocking."5 Of the twelve adjournments, four were attributable to the unavailability of the Board's counsel; seven were attributable to the unavailability of Mora's counsel; and one was the cause of the judiciary no judge was available.

The judge then recounted the final production of discovery materials by the Board:

My understanding is that the defendants have now produced over 2,700 new pages of discovery, yet they had transcripts back in '07 of these meetings and somehow could not produce them for five years through inadvertence.

They've now produced seven audio C.D.'s of board meetings, which were requested long ago, 54 audio files. And what I get is inadvertence, inadvertence. I find it unbelievable.

Relying upon Rule 4:17-7, which relates to amended answers to interrogatories, the judge found that the Board had failed to demonstrate a plausible reason for the late production, and discounted any exceptional circumstances to mitigate the document dump on the eve of trial.

Finally, the judge considered whether Mora suffered any prejudice. She noted that Mora's attorney claimed that "he wasn't even sure now who to call as a first witness," and "[t]o have [2,700] pages dumped on you would throw anyone off their game." Also, without specificity, the judge noted, "[t]he new evidence certainly has the capacity to influence the jury and I believe that it would unfairly prejudice the plaintiff without a doubt in this case."

Ultimately, the judge granted Mora's motion to strike the Board's answer with prejudice, and suggested that "the matter would have to proceed for a default judgment at some point and perhaps a proof hearing that would have to be scheduled." Over Mora's objection, the judge granted a temporary stay of further proceedings to enable the Board to apply for leave to appeal. On March 28, 2013, we granted the Board's motion for such relief.

II.

Generally, "the disposition of discovery issues is left to the sound discretion of the trial court. Its determination of these issues [is] entitled to deference in the absence of a mistaken exercise of discretion." Medford v. Duggan, 323 N.J. Super. 127, 133 (App. Div. 1999) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)). A trial judge mistakenly exercises her discretion when the "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Here, the trial judge ably articulated all of the perceived reasons why she imposed capital punishment on the Board's answer. Ironically, her primary concerns fidelity to the Rules to ensure trial date certainty and avoidance of gamesmanship had already been obviated by the inability of the court system to insist that the matter be tried in a timely fashion. Between the end of the discovery period (June 16, 2009) and the selection of the jury (February 11, 2013), more than three-and-a-half years had passed. Although we readily empathize with the trial judge's characterization of the delays as "shocking," we fail to discern how depriving the Board's constituency of its day in court would advance trial date certainty or deterrence of gamesmanship.

Involuntary termination of a civil action due to discovery delinquencies is not just a last resort, it must be preceded by a scrupulously indulgent effort to evaluate even a venal or stonewalling litigant's discovery efforts, as long as that analysis can be accomplished fairly to both sides. We recognize that this imposes a significant burden on trial judges, as well as upon the delinquent party's adversary. Nevertheless, it is a price we are willing to pay to foster the fair administration of justice. "Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not to bar a litigant's way to the courtroom." Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 407 (App. Div. 1986).

We also need to factor into the calculus the action or inaction of the Board's adversary. Although we do not assign blame to Mora or his attorney, we are struck by the languid and passive approach that they took to ensuring that they were in possession of all pertinent documents. The record reveals that Mora sought to vindicate his discovery rights only once, in November 2007, and never followed up until several years later. That follow-up was not even a discovery demand; rather, it was the notice in lieu of subpoena, which called for certain documents and things to be produced "at the time of trial." Although this lethargy did not give the Board a license to play fast and loose with its discovery obligations, any prejudice to Mora's trial strategy by the late production of documents was mostly self-created. Mora sought the 2006 (and other years') meeting minutes early on. Yet he never pursued the collection of those data through motion practice, which he had the right to do. See R. 4:23-5. Moreover, we have grave doubts that his in limine motion, which clearly sought a sanction the ultimate sanction against the Board for its discovery defalcations, was appropriate in light of Rule 4:24-2 ("Unless the court otherwise permits for good cause shown, motions to compel discovery and to impose or enforce sanctions for failure to provide discovery must be made returnable prior to the expiration of the discovery period.").

The machinery of our carefully calibrated discovery apparatus affords any party the right to discovery together with a sure means to vindicate that right. See, e.g., R. 4:23-1; R. 4:23-5. If a party decides that it need not seek court intervention to compel discovery to which it was entitled, it can hardly complain if its adversary exploits such indifference. We do not blame the victim here. However, Mora's expressions of outrage and claims of prejudice ring hollow in light of his standing on the sidelines for years. Because the trial judge's decision was ultimately, in her words, "based upon fundamental litigation fairness," and was not directly linked to a Rule providing for the sanction imposed, we conclude that striking the Board's answer with prejudice went too far.6

Although we conclude that the trial judge mistakenly exercised her discretion, which requires the reversal of the February 13, 2013 order, we by no means suggest that the Law Division is powerless to deal with any proven misconduct by the Board or its attorneys. Because this matter will be returned to the Law Division for ultimate disposition, we leave the making of an appropriate remedy in its hands. We do not rule out any appropriate sanction that is supported by the record and countenanced by the Rules, except the Board's answer shall not be stricken with prejudice. If, on remand, a trial is still needed, the full range of discretion vested in the trial judge shall be available to ensure that the dispute is fairly and justly resolved.

1 Three orders were entered extending the discovery period in this case. Thus, from the filing of the answer until the discovery expiry, approximately 838 days elapsed, almost twice the time allotted by Rule 4:24-1(a).

2 The trial date contained in the notice in lieu of subpoena was February 16, 2010. It is not clear from the record whether it was served around that time, or because the trial date was then a moving target, it was not delivered to the Board's attorney until May 2012.

3 This trial date was ultimately adjourned until mid-February when Mora's co-counsel incurred serious injuries in an accidental fall.

4 Prior to the consideration of the motion to strike the Board's answer with prejudice, the judge, attorneys, and parties had already selected a jury that was poised to hear the case once in limine motion practice was completed.

5 The judge also noted that case management "was not handled properly, not in accordance with the court rules."

6 The trial judge did not rely upon, for example, Rule 4:23-2 or Rule 4:23-5. Instead, she cited only to rules that govern amendment of answers to interrogatories and limit the duration of discovery, both of which do not address, much less authorize, the drastic remedy imposed on the Board in this case.