Judge Tells Montclair To Produce Emails, Texts Between Stafford, Council Members

Montclair has to respond to what the Township’s new attorney has described as a “voluminous discovery demand.”  Part of that demand involves scouring both former township manager Timothy Stafford’s township phone as well as any township-issued phones of the mayor and council members for any conversations regarding Padmaja Rao, Montclair’s chief financial officer,  and the plaintiff in a whistleblower case against the Township and Stafford.

Stefani Schwartz and Andreya DiMarco of Hatfield Schwartz, appeared in court Thursday before Honorable Judge Stephen Petrillo. Schwartz said her firm was taking over for Derrick Freijomil of Riker Danzig. Freijomil will only appear again in a limited capacity — to argue a motion to dismiss he had filed. Petrillo said he would try to get that motion on the calendar prior to a mediation between the parties scheduled for September 29.

On Thursday, the issue before the court was a motion to compel discovery by the plaintiff’s attorneys, Nancy Erika Smith and Roosevelt Nesmith. Eric Bernstein, attorney representing Stafford, attended via Zoom but only to observe.

Schwartz spoke of the volume of documents requested – 158 document demands with subparts, 70 interrogatories with subparts, and six notices of deposition for Stafford and five Township personnel (affirmative action officer Bruce Morgan, Mayor Sean Spiller, assistant township attorney Gina DeVito, deputy manager Brian Scantlebury and interim township attorney Paul Burr). 

Stating she was new to the case, Schwartz asked the court for additional time. 

“What happened with malware situation,” asked Petrillo, referencing the cyber attack on Montclair that led to a $450K settlement.

“Your Honor, there was a certification for the court from the assistant township counsel [DeVito]. They are still working on ensuring all the emails that had been lost have been captured,” said Schwartz. “So it’s not a done deal. It takes time for the emails to be recovered and that’s what they are working on.”

Petrillo said a rolling production of discovery documents would be perfectly acceptable and asked what timeframe Schwartz could turn the documents over, adding that there had been a number of delays created by the actions of her predecessor.

Petrillo was referring to Freijomil. Back in May, Petrillo had choice words – dubious, suspect, ridiculous — in response to arguments made by Freijomil.

“I’m not saying it was an intentional slow walking of the case. What I’m saying is, it had the effect of slow walking the case. So I can’t indulge your requests to the same degree that I might otherwise have, because to do so, is going to really slow us down even more,” said Petrillo.

“I’m a very different lawyer and I’m going to try to do what’s best to resolve this case,” said Schwartz. “So I ask you to indulge me a bit because right now I don’t need fees to keep incurring. It will make my life very, very difficult to try to get a good, fast resolution.”

“Can you break down for me what is absolutely vital in your mind before mediation?” Petrillo asked Smith.

“For a long time, I’ve been told I’m entitled to some discovery. I still don’t have one piece of paper,” said Smith of the interrogatories, document demands and deposition notices that were served on May 5. 

Schwartz said she could produce some of the documents right away but asked if she could have 30 days for the remaining.

“That gets real close to the mediation date,” said Petrillo.

“My only problem is I need to make sure the client can also get it to me, and I need to make sure my office can also look at the documents,” said Schwartz.

Petrillo, asking about the Township: “What would inhibit the client from getting it to you if they have to?” 

“It’s a municipality working with limited people. And that’s all I can say. I don’t know what they’re doing, your Honor,” Schwartz replied.

“What you just said, that’s exactly what worries me. And because you don’t know and you can’t describe to me, we need to tell them what to do and when they need to do it,” said Petrillo.

Petrillo gave a deadline of Monday, August 21 for the first group of documents. This group includes Rao’s entire personnel file (job description, performance reviews/evaluations); the Township’s current employee handbook, and the Affirmative Action Officer’s Investigation Report and related correspondence between Rao and Mr. Morgan.

One of the discovery document demands Petrillo allowed to be produced later within the 30-day window involves the searching of texts and emails. One demand refers to “copies of any and all documents including, but not limited to, emails, communications, and/or text messages by or to Defendant Stafford relating to, referring to, or concerning Plaintiff or her complaints regarding gender or sex discrimination, harassment/hostile work environment, or retaliation.”

Petrillo asked if Stafford had a town cell phone and if the town had gotten it back. Schwartz said yes.

“So then to the extent any of these communications are on a town-issued device, it would be the town’s responsibility, particularly in light of the fact that it’s in custody of the device,” Petrillo said. 

“I hear going through somebody’s phone or text messages is incredibly laborious because of the manner in which people communicate by text, and that’s just one category of this,” added Petrillo, who then asked if Smith could provide a list of search terms to Schwartz.

Smith mentioned words like “hostile, harassment, discrimination, bullying, abuse” and said she could provide a list of terms by Wednesday. Petrillo asked if it was common in these searches to include curse words, such as b****. Smith said yes.

Petrillo asked Schwartz about what kinds of conversations with regard to Stafford would be in bounds.

“If it was town council members speaking among themselves, on text messages or emails saying, ‘This guy’s a hero. He’s a victim of a terrible employee’ or alternatively saying “This guy’s a villain, he’s a mean S.O.B. who’s treating the plaintiff awfully,” all of those communications among the elected officials to one another would be in bounds as far as their availability for production?”

“Sure, so long as there was no legal advice being sought during those communications,” Schwartz replied. 

Schwartz said she did not know if all the town officials were using personal devices or  township devices. “If it’s their personal device or a device they use for their other work, there’s some privacy issues I need to be concerned about,” she added.

Petrillo said it would have to be addressed whether or not they were using personal devices for communications of this type.

“Some people have had email servers in their basements. Some people will use their own personal devices to avoid public disclosure,” Petrillo said. “How do we address the kinds of conversation that are subject to this demand and might have gone on by personal email, personal cell phone tablets?”

“You need to give me time to have conversations with my clients,” said Schwartz.

“Fair enough. I do think we need to keep that as an agenda item going forward,” said Petrillo, who also raised concerns about knowing whether council members were being truthful about phone use. 

“That’s a real risk,” said Smith. “I think they have to certify and that’s why interrogatories are certified. And if they claim that none of them use private [phones/email], and there’s some indication that they do, they’re going to have to certify that they don’t.” 

Petrillo told Schwartz to speak to the councilors about their own devices and work towards certifications in an ordinary course. But for immediate purposes, Schwartz would first scour all the town-issued devices.

Before mediation, Schwartz requested to know plaintiff’s alleged damages.

“I’d like to know the alleged damages, both compensatory and and emotional, and if she has been treated,” said Schwartz of Rao. Smith agreed.