IN RE PETITION OF BARRY JACOBSON AND DANIEL JACOBSON TO TAKE PRE-LITIGATION DISCOVERY PURSUANT TO RULE 4:11-1(b

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2217-12T4

IN RE PETITION OF BARRY JACOBSON

AND DANIEL JACOBSON TO TAKE

PRE-LITIGATION DISCOVERY PURSUANT

TO RULE 4:11-1(b).

_______________________________________

December 30, 2013

Argued November 12, 2013 Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-645-12.

Susan Schleck Kleiner argued the cause for appellants Barry Jacobsen and Daniel Jacobson (Law Offices of Susan Schleck Kleiner, L.L.C., attorneys; Ms. Kleiner, of counsel and on the brief).

E. Carr Cornog, III argued the cause for respondent The Rotolo Law Firm (The Rotolo Law Firm, P.C., attorneys; Mr. Cornog, on the brief).

Eric S. Pasternack, Deputy Attorney General, argued the cause for respondent the Honorable Israel Dubin, A.L.J. (retired) (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Pasternack, on the brief).

PER CURIAM

Barry Jacobson and his son Daniel Jacobson (the Jacobsons) appeal from an order entered by the Law Division on December 24, 2012, which denied their petition for pre-litigation discovery pursuant to Rule 4:11-1. We affirm.

In June 2009, the Jacobsons retained The Rotolo Law Firm, P.C., to represent Daniel in an administrative action against the Jackson Township School District, in which Daniel asserted certain claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The Division of Civil Rights referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).

ALJ John R. Futey was the judge assigned to conduct the hearing in the case. ALJ Futey asked ALJ Israel Dubin to conduct settlement negotiations between the parties. The parties reached a settlement, which was placed on the record. A settlement agreement, dated July 16, 2010, was signed by Daniel, Victor Rotolo of the Rotolo firm, and the attorney for the school district. The agreement was subject to approval by the district's board of education.

On August 30, 2010, the Jacobsons discharged the Rotolo firm. Thereafter, Daniel claimed that the matter had not been settled. The school board filed a motion in the OAL seeking a determination that the parties had entered into a binding settlement. ALJ Jeff S. Masin determined that, because the school board had not approved the settlement, there was no binding agreement between the parties. The ALJ ordered that the matter be scheduled for a hearing.

The Rotolo firm filed a complaint against the Jacobsons seeking the legal fees allegedly owed for the services it had provided for the administrative action. With the parties' consent, the court entered a consent order dismissing the complaint without prejudice. The consent order provided that the complaint could be reinstated after Daniel's administrative action was resolved by settlement or decision.

On November 20, 2012, the Jacobsons filed a verified petition in the Law Division, Hunterdon County, seeking pre-litigation discovery pursuant to Rule 4:11-1. The Jacobsons sought an order permitting them to depose ALJ Dubin, who had retired. In their petition, the Jacobsons asserted that they expected to pursue a claim against the Rotolo firm or file a counterclaim in the firm's action against them for legal fees, should that action be reinstated.

The Jacobsons claimed that, if the firm reinstated its lawsuit, ALJ Dubin's testimony would be crucial to their defense or any claims they might assert by way of a counterclaim. They noted that ALJ Dubin presided over settlement negotiations for three days. They stated that ALJ Dubin's "recollections of the representations made by the Rotolo law firm as well as his observations of the discussions and relationship between [them] and the Rotolo law firm are critical" to their "ability to present a claim or defense."

The Jacobsons also asserted that ALJ Dubin's testimony "may be useful" in forming the basis for an affidavit of merit pursuant to N.J.S.A. 2A:53A-27, which would be required for a legal malpractice claim. The Jacobsons noted that Daniel's administrative action might not be concluded until February or March 2013. They stated that they did not necessarily wish to start litigating against the firm until that matter was concluded, but they were concerned about the length of time that had passed and the witnesses' ability to recall the events of July 2010.

The Attorney General filed a brief on behalf of ALJ Dubin, opposing the petition for pre-litigation discovery. The Attorney General argued that the ALJ could not be deposed concerning a matter in which he had acted in a judicial capacity. The Attorney General additionally argued that ALJ Dubin was a high governmental official who could not be deposed unless the deposition was essential to avoid an injustice, and the deposition was barred by N.J.R.E. 408, which provides that evidence of statements or conduct by parties or their attorneys in settlement negotiations are not admissible for certain purposes.

The trial court did not entertain argument in the matter, and entered an order dated December 24, 2012, denying the petition. On the order, the court wrote that deposition of a judge was improper because a judge's role in settlement negotiations is privileged and compelling a judge to testify about the negotiations would paralyze the settlement process. This appeal followed.

We note that, after the Jacobsons filed their brief, they moved before us to supplement the record with an e-mail from Daniel to ALJ Dubin, dated August 30, 2010, and ALJ Dubin's apparent response. In the e-mail, Daniel informed the judge that he had discharged the Rotolo firm as his counsel in the OAL proceeding. While apparently attempting to forward the e-mail, ALJ Dubin responded by stating, "O.K. I'm not surprised one bit. Please make the change on the service list and diary it for 9/30 as a control date for his selection of new counsel." By order entered on April 11, 2013, we granted the motion.

We also note that on March 27, 2013, ALJ Futey issued an initial decision dismissing all of Daniel's claims. Under N.J.S.A. 52:14B-10, the Director of the Division of Civil Rights has the authority to adopt, modify or reject the ALJ's decision. The record does not indicate whether the Director adopted, modified or rejected ALJ Futey's initial decision. the record also does not indicate whether the Rotolo's firm lawsuit has been reinstated.

On appeal, the Jacobsons argue that the trial court abused its discretion by refusing to allow them to depose ALJ Dubin. They contend that the ALJ's observations during the settlement negotiations are not privileged. We do not agree.

Attempts to probe the decision-making process of judges or administrators are improper because they would undermine the integrity of the judicial and administrative systems. Grant v. Shalala, 989 F.2d 1332, 1344 (3d Cir. 1993); United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 1004-05, 85 L. Ed. 1429, 1435-36 (1941). Furthermore, an administrative law judge holds a position that is "functionally comparable" to that of a judge, and any effort to probe the judge's mind "would pose a substantial threat to the administrative process." Grant, supra, 989 F.2d at 1344-45.

In conducting the settlement negotiations between the litigants in the administrative proceeding, ALJ Dubin clearly was engaged in the performance of a judicial function. Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 1107, 55 L. Ed. 2d 331, 342 (1978) (noting that a judicial act is one normally performed by a judge). When a judge facilitates settlement negotiations, either on or off the record, the judge is performing official duties. Hensley v. Alcon Labs., Inc., 197 F. Supp. 2d 548, 550 (S.D.W.V. 2002).

The Jacobsons argue, however, that the trial court should have permitted them to depose ALJ Dubin because they do not want to probe the judge's decision-making process or thoughts about Daniel's administrative action. They say the judge was merely acting to facilitate settlement negotiations, not to render any substantive decision in the case. The Jacobsons assert that they want to question ALJ Dubin about statements the attorney from the Rotolo firm made on their behalf, outside of their presence, and they want to ask the judge about his observations of the their relationship with their attorney.

However, as we have explained, an ALJ facilitating settlement discussions is performing official acts of a judicial nature. The judge cannot be deposed about his observations of what transpired in the settlement discussions or asked to comment on his impressions of the relationship between an attorney and his client. Furthermore, if the Jacobsons wish to ascertain what their attorney said in the settlement discussions, they may seek that information from the attorney.

The Jacobsons argue that, by responding to Daniel's e-mail message, ALJ Dubin essentially waived any claim of privilege that could be asserted to prevent his deposition. It appears, however, the ALJ responded to Daniel's e-mail inadvertently. In any event, this argument is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

The Jacobsons additionally argue that the deposition they seek is not precluded by N.J.A.C. 1:1-20.2(a)(4), which provides that the parties to a mediation may not subpoena the mediator in a subsequent proceeding. They also argue that the Uniform Mediation Act, N.J.S.A. 2A:23C-1 to -13, permits them to depose the mediator.

In view of our decision that ALJ Dubin may not be deposed concerning the settlement discussions that he conducted because he was engaged in the performance of a judicial function and his observations as to what transpired in those discussions are privileged, we need not consider these other arguments.

Affirmed.