Motion for New Trial in Yarngo Vs Rutgers The State University Of Nj| Trellis.Law

On November 02, 2017 a Motion-Secondary was filed involving a dispute between Justin E Yarngo, and Abc Companies 1-10, Brian Howard, Jane Does 1-20, John Does 1-20, Rutgers The State University, for Law Against Discrimination (Lad) Cases in the District Court of Essex County.

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July 2, 2018
VIA NEW JERSEY e-COURTS
The Honorable Garry J. Furnari, J.S.C.
Superior Court of New Jersey
Historic Courthouse
470 Martin Luther King Jr., Blvd., 2nd Floor
Newark, New Jersey 07102

Re: Justin Yarngo v. Rutgers, et al.,
Docket No. ESX-L-7768-17

Dear Judge Furnari:

We represent the Defendants, Rutgers, The State University of New Jersey, and
Brian Howard, in the above-referenced matter. Please accept this letter brief in lieu of a more
formal brief in further support of Defendants’ motion to quash Plaintiff Justin E. Yarngo’s
subpoena duces tecum served upon Ms. Caroline H. Miller, Esq., counsel for the plaintiffs in the
matter captioned David Schuh and Mark Hutton v. Rutgers, The State University of New Jersey,
et_al., Civ. Action No. 16-04944 (KM/MAH) (the “Schuh/Hutton Litigation”), seeking the
production of her file in that matter.

L PRELIMINARY STATEMENT

For the reasons set forth in Defendants’ moving brief and herein, the subpoena
served on Ms. Miller must be quashed in its entirety pursuant to R, 1:9-2. Plaintiff argues that he
has substantially complied with the appropriate procedure for service of the subpocna and that
Defendants have not suffered prejudice as a result of the defective subpoena. Plaintiff's
opposition brief (“PI.’s Opp.”) is replete with bare assertions that are wholly unsupported, and
therefore must be disregarded.

Contrary to Plaintiffs assertions, his supposed compliance with Rule 4:14-7(c)
cannot cure the procedural deficiencies present here. It is well-settled that a New Jersey attorney
or a party to a New Jersey litigant cannot simply serve a New Jersey subpoena on an out-of-state
non-party. Plaintiff concedes that Ms. Miller’s law practice is located in Philadelphia,
Pennsylvania. Plaintiff also concedes that he served a New Jersey subpoena on Ms. Miller,
non-party located out-of-state. Plaintiff admittedly did not comply with the requirements of
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Pennsylvania’s Uniform Interstate Deposition and Discovery Act and, therefore, the subpoena
must be quashed as it is procedurally defective.

Even if Plaintiff were to correct the procedural deficiencies, the subpoena should
still be quashed, because it constitutes nothing more than an unfettered fishing expedition to
obtain documents or information that are wholly irrelevant to the subject matter of this action.
As broad as pre-trial discovery may be, it is not unbridled and not unlimited. Plaintiff is not
entitled to Ms. Miller’s litigation file simply because he filed a complaint against the same
parties. Where, as here, Schuh’s and Hutton’s claims are not of any relevance whatsoever to
Plaintiff's claims, Ms. Miller’s litigation file is not subject to disclosure. Indeed, Plaintiff's
opposition brief demonstrates that the alleged discriminatory and/or retaliatory conduct at issue
in the instant action is manifestly different from the conduct at issue the Schuh/Hutton Litigation.
Nowhere in Plaintiff's Complaint does he claim that Mr. Howard denied him a promotion to the
Program Coordinator position or any position for that matter. It is clear from Plaintiff's
opposition brief that he secks to bootstrap his claims with entirely different examples of
discriminatory treatment experienced by Schuh and Hutton, which violates the New Jersey Rules
of Evidence.

Plaintiff completely ignores the well-settled rule that the subpoena power should
not be used to circumvent ordinary tools of discovery. In his opposition brief, Plaintiff fails to
identify a single interrogatory or document request explicitly seeking relevant comparator
evidence. Similarly, Plaintiff improperly served this unreasonable subpoena in lieu of noticing
any depositions where he could further seek relevant evidence. The subpoena must be quashed
where, as here, the information or documents can be readily obtained from a party to the
underlying litigation.

Accordingly, Defendants respectfully request the Court to quash Plaintiff's
Subpoena pursuant to Rule 1:9-2.

IL. LEGAL ARGUMENT

A. The Subpoena Is Procedurally Defective And Must Be Quashed.

Plaintiff cannot overcome the procedural defectiveness of his subpoena. (P1.’s
Opp. at 4-6). Use of the subpoena power “for purposes of discovery ‘is a significant one which
must be exercised in good faith and in strict adherence to the rules to eliminate potential
abuses.” See Welch v. Welch, 401 N.J. Super. 438, 444-45 (Ch. Div. 2008) (quoting Cavallaro
v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 569 (App. Div. 2000)). To the extent a litigant or
legal counsel seeks to obtain discovery from an out-of-state non-party, the procedures for issuing
a subpoena are governed by the law of the state in which the non-party resides or where the
documents are located. See 42 Pa.C.S. § 5336 (providing that service and enforcement of a
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subpoena are governed by the Pennsylvania Rules of Civil Procedure). As such, Plaintiff's
reliance on Rule 4:14-7(c) and Rule 4:11-5 is misplaced.’

Given the territorial limits of the subpoena power, several states, including
Pennsylvania, have adopted the Uniform Interstate Depositions and Discovery Act “UIDDA”),
which sets forth procedures for litigants or legal counsel to pursue out-of-state discovery. See 42
PaCS. §§ 5331 to 5337 (setting forth procedures for'serving a subpoena related to an out-of-
state action on a non-party). Here, Plaintiff has not complied with these rules by serving a New
Jersey subpoena on Ms. Miller. In his opposition brief, Plaintiff concedes that Ms. Miller’s law
practice is based in Philadelphia, Pennsylvania (PI.’s Opp. at 3-4). Plaintiff improperly served a
New Jersey subpoena on Ms. Miller at her Philadelphia office, which violates Pennsylvania’s
UIDDA. See 42 Pa.C.S. § 5335(a), (b).
Plaintiff's veiled threats to serve the same unreasonable subpoena only confirms
that he intends to engage in an unfettered fishing expedition (PI.’s Opp.at 6). As set forth in
Defendants’ moving brief and in Point ILB., infra, the information and documents contained in
Ms. Miller’s litigation file are irrelevant and immaterial to this action, Therefore, any renewed
subpoena seeking the same information and documents must be quashed pursuant to R. 1:9-2.

B. The Subpoena Constitutes An Improper Mechanism To Obtain Information
Or Documents That Are Irrelevant, Lmmaterial, and Outside The Scope Of
Permissible Discovery.

A party may seck “discovery regarding any matter not privileged, which is
relevant to the subject matter involved in the pending action whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense of any other party...” R, 4:10-
2(a). A matter is relevant if it has a “tendency in reason to prove or disprove any fact of
consequence to the determination of the action.” Payton v. N.J. Turnpike Auth, 148 N.J. 524,
535 (1997) (quoting N.J.R.E. 401). The focus of the inquiry “should be on the logical
connection between the proffered evidence and a fact in issue[.]” Bayer v. Tp. of Union, 414
NJ. Super. 238, 272 (App. Div. 2010) (internal citations and quotation marks omitted).
Discovery requests must be reasonably calculated to lead to admissible evidence respecting the
cause of action or its defense. R. 4:10-2, cmt.1 citing Pfenninger v. Hunterdon Central, 167 N.J.
230, 237 (2001); see also Atl. Research Corp, y. Robertson, Freilich, Bruno & Cohen..L.L.C.,
2013 NJ. Super. Unpub. LEXIS 3081, *6 (Law. Div. Mar. 12, 2013)? (acknowledging that
inherent in the relevance standard is the expectation the discovery sought constitutes admissible

1 It is important to note that Rule 4:11-5, which concerns the issuance of a subpoena in another jurisdiction to obtain
discovery for a New Jersey lawsuit, was amended to adopt the UIDDA. See R. 4:11-5 (adding subsection (c), which
permits a litigant to issue a subpoena to a person in another state “pursuant to a subpoena issued to the person to be
deposed in accordance with R. 4:14-7 and in accordance with the procedures authorized by the foreign state.”); see
also emt. 1.1 to R. 4:1 1-5; cmt, to R. 4:11-4(b).
2 A true and correct copy of Roberston is attached to the Supplemental Certification of John K. Bennett, Esq.
(“Suppl. Bennett Cert.”) as Exhibit 1.
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evidence and information reasonably calculated to lead to admissible evidence) (citing Berrie v.
Berrie, 188 N.J. Super. 274, 278 (Ch. Div. 1983)).

However broad discovery may be, it is not limitless and does not entitle Plaintiff
to examine the file of a non-party on the off chance he may ultimately find some of the
information useful. See Nye vy. Ingersoll Rand Co., 2011 U.S.- Dist. LEXIS 7383, *28 (D.N.J.
Jan. 25, 2011) (noting that the court should consider, inter alia, the extent to which information
sought in an overbroad subpoena is irrelevant, privileged or more readily obtainable from other
sources); seé also Gensollen y. Pareja, 416 N.J. Super. 585, 591 (App. Div. 2010) (“The
discovery rights provided by our court rules are not instruments with which to annoy, harass or
burden a litigant or a litigant’s experts.”) (citing R, 4:10-3). Discovery requests seeking
comparator evidence of current or former employees, such as the evidence sought here, must be
sufficiently limited with respect to the type of discrimination alleged and action complained of.
Requests for broad-based discovery are not permitted. See Robbins v. Camden City Bd. of
Educ., 105 F.R.D. 49, 58 (D.N.J. 1985) (finding that interrogatories seeking information related
to other charges of discrimination which did not contain limitations as to type of action
complained of, or discrimination alleged, were overbroad and imposed an undue burden).

By subpoenaing Ms, Miller’s litigation file, including all discovery exchanged in
the Schuh/Hutton Litigation, Plaintiff seeks not only the personnel and other confidential records
of Schuh and Hutton, but also the personnel and confidential records of other non-parties.
Requests for personnel files of current or former Rutgers’ employees, who are not similarly
situated to Plaintiff, implicates privacy considerations. Personnel files “contain perhaps the most
private information about an employee within the possession of an employer.” Getz_v.
Pennsylvania Blindness and Visual Servs., 1998 U.S. Dist. LEXIS 20262, *6 (E.D. Pa, 1998),4
Courts consistently protect personnel-related documents if relevant and meaningful comparisons
cannot be made between Plaintiff and other employees. Sce, ¢.g., Abreu v. New Jersey, 2015
U.S. Dist. LEXIS 172621, at *22 (D.N.J. Dec. 29, 2015)° (granting the plaintiff's motion to
compel only as to the production of the comparator’s records where that comparator was selected
for the job position at issue, but denying requests for other employees’ files) (citing Dixon v.
Rutgers, 110 N.J. 432, 443-44 (1988)); Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir, 1994)
(curtailing discovery of personnel files in ADEA suit because coworkers’ circumstances were
too dissimilar to those of complaining party to make comparisons productive), cert. denied, 515
U.S. 1159 (1995).

To obtain such comparator evidence, Plaintiff must articulate a legitimate basis
that the information or documents requested in the subpoena are relevant to his claims. See
Alexander _v. FBI, 194 F.R.D. 305, 309 (D.D.C. 2000) (‘The party seeking to compel
information bears the burden of first demonstrating its relevance”). Plaintiff asserts that “the
requested material clearly relates to whether Defendant Brian Howard had a bias in favor of

3 A true and correct copy of Nye is attached to the Suppl. Bennett Cert. as Exhibit 2.
4 A true and correct copy of Getz is attached to the Suppl. Bennett Cert. as Exhibit 3.
5 A true and correct copy of Abreu is attached to the Suppl. Berinett Cert. as Exhibit 4.
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young female employees, whether his personnel decisions were driven by bias, and whether
Defendant Rutgers was aware of this and failed to effectively respond.” (Pl.’s Opp. at 7). Yet,
Plaintiff misconstrues the factual allegations in his own complaint in a contrived attempt to
obtain Ms. Miller’s litigation file.

Plaintiff cannot merely assert that his action is substantively. similar to the
Schuh/Hutton Litigation, when the factual allegations set forth in his own Complaint show that
assertion is untrue (PI.’s Opp. at 1-2). In contrast to Schuh and Hutton, Plaintiff was employed
as a Mental Health Specialist II from approximately April 2, 1997 until-his termination August
16, 2016 (Bennett Cert. at § 2, Exhibit 1, 1). Neither Schuh nor Hutton were discharged from
their employment position and their claims are not premised on alleged wrongful or retaliatory
termination (Id. at | 8, §§ 31, 32; see id. at § 8, Exhibit 6, {| 32-33). Plaintiff's claims are
predicated on his gender as well as age, as distinct from the claims alleged in the Sch uh/Hutton
Litigation (Id. at 2, Exhibit 1, 4923).
The alleged discriminatory conduct in this action is patently different than the
alleged conduct in the Schuh/Hutton Litigation. Specifically, in Count One, Plaintiff alleges that
Rutgers failed to investigate and remedy Plaintiff's purported complaints about Mr. Howard,
who allegedly subjected Plaintiff to a hostile work environment by wrongfully interfering with
Plaintiff's contractually required vacation days, ignoring his communications regarding his
request for time off, and then responding to his communications in a hostile manner (Id. at {§ 14,
23). Plaintiff also alleges that Mr. Howard treated female subordinates in a pleasant, attentive,
and accommodating manner (Id. at § 16, 23). Neither Schuh nor Hutton allege that Mr. Howard
interfered with their contractually required vacation days, ignored their time off requests, or
communicated with them in a hostile manner. Likewise, nowhere in Plaintiff's Complaint does
he allege that Defendants denied him a promotion to the Program Coordinator position or any
other job position (1d. at | 8, Exhibit 6, fff 32-33, 39).

As such, Plaintiff cannot articulate a legitimate basis to obtain Ms. Miller's
litigation file, which contains personnel and confidential records of other employees that Plaintiff
is not rightfully entitled to obtain as a former employee of Rutgers. The subpoena constitutes
nothing more than a discovery adventure by Plaintiff and thus, the subpoena must be quashed.

Cc “Me Too” Evidence Unrelated To Plaintiff's Own. Claims Is Irrelevant And
Inadmissible In The Instant Action.

As set forth in Defendants’ moving brief and briefly herein, “[a] valid subpoena
must specify its subject . . . with reasonable certainty, and there must be a substantial showing
that [the records] contain evidence relevant and material to the issue.” See Greenblatt _v. New
Jersey Bd. of Pharmacy, 214 N.J. Super. 269, 275 (App. Div. 1986). Where, as here, the
information sought is not relevant or material to a claim in this action, the information may not
be discovered. See Wasserstein v. Swern & Co., 84 N.J. Super. 1, 6-7 (App. Div.) (granting
motion to quash subpoena duces fecum on the ground that the requested information regarding
all insurance claims relating to accidents on defendant’s escalators at issue in the matter, as
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plaintiff failed to demonstrate the relevancy and materiality of the records in accordance with the
standards set forth in Cooper), certif. den., 43 N.J. 125 (1964). The relevancy of evidence must
be tested by the probative value of the evidence has with respect to the points at issue. Green v.
N.J. Mfrs. Ins. Co., 160 N.J. 480, 491-92 (1999); see also N.J.R.E. 401 (defining “relevancy” as
“having a tendency in reason to prove or disprove any fact of consequence to the determination
of the action.”).

Contrary to Plaintiffs assertions, current or former employees’ litigation histories
are not relevant and admissible under N.J.R.E. 401 simply because Plaintiff filed a complaint
against the same parties. See Dixon, 110 N.J. at 454 (holding that plaintiff is not entitled to.a
general examination of defendant’s files merely because he filed a complaint alleging
discriminatory treatment); see also Korostynki v. State of N.J., 266 N.J. Super. 549, 555 (App.
Div. 1993) (“The files regarding other former employees are not of any relevance whatsoever to
such a claim. Either plaintiff was wrongfully terminated or he was not; the records of other
former employees are entirely immaterial to the resolution of this issue.”). Plaintiff cannot prove
a case of discrimination or retaliation simply by arguing that others may have claimed
discriminatory treatment. See Becker v. ARCO Chem. Co., 207 F. 3d 176, 191-92 (3d Cir.
2000) (prior acts of alleged discrimination cannot be offered to establish that employer engaged
in “any particular act or course of conduct in connection with the plaintiff's termination”).

Contrary to Plaintiffs assertions, the allegations regarding Mr. Howard’s
discriminatory hiring practices fail to draw a logical connection between this action and the
Schuh/Hution Litigation, as these allegations are immaterial to Plaintiff’s claims (Bennett Cert.
at 7 8, Exhibit 6 at #] 32-33, 39). Based on Plaintiffs own admissions in his Complaint, his
claims are predicated on the allegations that Mr. Howard’s purportedly interfered with Plaintiff's
vacation and time off requests by ignoring and responding in a hostile manner to those requests,
failed to amend certain time sheets to account for Plaintiff's time off requests, and wrongfully
accused Plaintiff of falsifying his time records to account for those unapproved time off requests
(Id, at 2, Exhibit 1 at (14, 23). Plaintiff also claims that Rutgers discharged him in retaliation
for complaining about Mr. Howard’s alleged conduct (i.¢., the hostile manner in which Mr.
Howard allegedly responded to Plaintiff's requests) (Id. at 7.31). Unlike Schuh or Hutton,
Plaintiff does not allege that Defendants denied him any job promotion. Ms. Miller’s litigation
file is wholly irrelevant and immaterial to the instant action as it only pertains to the plaintiffs’
failure-to-promote claims related to the Program Coordinator position for which Plaintiff
admittedly never applied (1d. at { 8, Exhibit 6 at {§ 33-33).

In Rendine v. Pantzer, 141 N.J. 292 (1995), relied upon by Plaintiff, the court
analyzed whether the trial correct properly joined certain claims ina litigation that were tried
together before a jury. Id, at 309-10. The plaintiffs brought an action against the corporate and
individual defendants on the basis that both plaintiffs were wrongfully terminated based on their
pregnancy. Id. at 298, The trial court denied the defendants’ request to sever the claims to be
tried separately and the defendants appealed. Id. The New Jersey Supreme Court upheld the
trial court’s decision to try the claims jointly finding, inter alia, “[b]oth plaintiffs informed
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defendant’s management that they were pregnant at approximately the same time.... Their
maternity leaves overlapped.... Rendine was terminated approximately one week after returning
to work; Lorestani was terminated in early September 1987.... Both plaintiffs alleged that they
had been terminated because defendant had discriminated against female employees who became
.
pregnant.” Id. at 308, 310-311.

In contrast to Rendine, the nature of the claims in this action and the
Schuh/Hutton Litigation are palpably different. Plaintiff relies upon paragraph 31 of the
omplaint in the Schuh/Hutton Litigation to demonstrate a connection with the instant action. In
paragraph 31, Schuh and Hutton allege that “.;.Ms. Cali-Morolla was permitted to have her
interview scheduled on the same day as her regularly scheduled off day, permitting her
additional time to prepare for the interview, while Plaintiffs were expected to work their regular
shift that day” (Bennett Cert: at 8, Exhibit 6, § 31). Here, Plaintiff alleges that “...[Mr.
Howard] continually made himself unavailable to male subordinates with questions or concerns,
demanding face-to-face communications in his office regardless of whether their shifts
overlapped with his, while he readily and generously accommodated female subordinates,
scheduling himself around their schedules and preferences in order to see them when request "
(Id. at | 2, Exhibit 1, | 16). Contrary to Plaintifi’s assertions, paragraph 31 makes no reference
to how “Mr. Howard...communicated with female employees as opposed to males” (P1.’s Opp.
at 9), Paragraph 31 in the Schr uh/E futton complaint plainly refers to a factually distinct event—the
interview process for the Program Coordinator position-whereas paragraph 16 in Plaintiff's
Complaint concerns an ongoing issue with work schedules.

As such, the alleged conduct at issue in this action is too dissimilar from the
plaintiffs’ situation in the Schuh/Hutton Litigation to be relevant and admissible. See Stair_v.
Lehigh Valley Carpenters Local Union No. 600, 813 F. Supp. 1116, 1119 (E.D. Pa. 1993) (citing
Garvey v. Dickinson College, 763 F. Supp. 799 (M.D. Pa. 1991)); Moorhouse v. Boeing Co.,
501 F. Supp. 390, 393 n. 6 (E.D. Pa. 1980), aff'd mem., 639 F.2d 774 (3d Cir. 1980) (noting that,
unless used to support a pattern and practice claim, evidence of other plaintiff's claiming age
discrimination was not relevant). Likewise,’ the singular discriminatory incident in the.
Schuh/Hutton Litigation, i.e., the failure to promote Schuh or Hutton to the Program Coordinator
position, occurred on June 16, 2015 whereas Plaintiff's claims are premised on alleged incidents
that occurred thereafter (Bennett Cert. at { 8, Exhibit 6, { 32; see id, at | 2, Exhibit 1,914). See
also Heno_y. Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000) (holding that
“anecdotal evidence of discrimination should only be admitted if the prior incidences of alleged
discrimination can somehow be tied to the employment actions disputed in the case at
hand....[d]iscriminatory incidents which occur{rJed either several years before the contested
action or anytime after are not sufficiently connected to the employment action in question to
demonstrate pretext.”) (internal citations and quotation marks omitted).

Even if Ms. Miller’s file contains records that bear some marginal relevancy to
this action, any probative value of this evidence is greatly outweighed by the danger of unfair
prejudice to Defendants. N.LR.E. 403; Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 491-92 (1999)
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(holding that the relevancy of evidence must be tested by the probative value of the evidence has
with respect to the points at issue). Plaintiff cannot bootstrap his own claims with alleged
examples of unrelated discriminatory treatment experienced by Schuh and Hutton. Use of Ms.
Miller’s litigation file in the instant action will confuse the issues, mislead the jury, and result in
a trial within a trial. See, e.g., Fitzgerald _v. Stanley Roberts. Inc., 186 N.J. 286, 321 (2006)
(“[T]rial courts well-qualified to determine when admission of evidence will result in “mini-
trial” and to bar its admission due to confusion or waste of time”) (citations omitted).

Further, the New Jersey Rules of Evidence preclude use of Ms. Miller’s litigation
file as prior act evidence. N.J.R.E. 404(b); Fitzgerald, 186 N.J. at 319-20 (holding that
allegations of harassment by co-workers were not admissible “to prove defendant’s propensity to
harass women or as evidence of his general bad character”). Unlike Schuh and Hutton, Plaintiff
does not allege a failure to promote claim and cannot rely upon “undifferentiated motive” to
suggest that because Defendants allegedly discriminated against Schuh and Hutton in another
fashion, they discriminated against him as well. See State v. Mazowski, 337 N.J. Super. 275,
282 (App. Div. 2001) (holding that motive supported by prior act evidence must be motive to
commit the particular wrong at issue, not merely an “undifferentiated motive” to engage in that
general type of behavior). Nor can Plaintiff cannot rely upon Schuh’s or Hutton’s experiences to
establish the alleged intent behind Defendants’ purported conduct towards Plaintiff due to the
apparent disparities in the alleged discriminatory conduct at issue in these litigations. Seg Stair,
813 F, Supp. at 1119. Lastly, Plaintiff is unable to establish that Defendants discriminated or
retaliated against Plaintiff as a “routine practice” or “habit” because the singular incident of
discrimination allegedly experienced by Schuh and Hutton does not constitute a sufficient
number of instances to warrant a finding of customary practice. N.LR.E. 406; see also Showalter
¥. . Barilari, Inc., 312 N.J. Super. 494, 512 (App. Div. 1998) (holding that habit evidence consists
of either “a routine practice in a particular situation” or a “regular practice of responding to a
particular kind of situation with a specific type of conduct”).

For the reasons set forth in Defendants’ moving brief and reiterated herein, the
evidence sought by Plaintiff through the subpoena is irrelevant and inadmissible and, therefore,
the subpoena must be quashed pursuant to R. 1:9-2.

D. Plaintiff Improperly Attempts To Use The Subpoena To Circumvent
Ordinary Tools Of Discovery.

Plaintiff's opposition brief completely overlooks well-settled law that the
subpoena power should not be used to circumvent ordinary tools of discovery. See New Century
Financial_vy. Dennegar, 394 N.J. Super. 595, 600 (App. Div. 2007) (noting that defendant’s
attempt to replace normal discovery procedures by serving a notice in lieu of subpoena was
inappropriate); see also Burns v. Bank of America, 2007 U.S. Dist. LEXTS 40037, *46 (S.D.N.Y.
June 4, 2007)° (“if documents are available from a patty, it has been thought preferable to have
them obtained pursuant to [document requests] rather than subpoenaing them from a non-party.”)

6 A true and correct copy of Burns is attached to the Supp]. Bennett Cert. as Exhibit 5.
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(internal citation omitted). Nowhere in Plaintiff's opposition brief: does he direct the Court to an
interrogatory or document tequest explicitly seeking relevant comparator evidence (Bennett Cert.
at § 4, Exhibit 3). Plaintiff also served this subpoena prior to noticing any depositions where
Plaintiff could seek to obtain relevant comparator evidence. Thus, it is evidence that Plaintiff
uses the subpoena power to indiscriminately seek information or documents that are irrelevant
and immaterial to Plaintiff's discrimination and retaliation claims, in the hopes of dredging up
material that may suggest some unrelated alleged wrongdoing. See State v. Cooper, 2 'N.J. 540,
556 (1949); Claude.B. Bamberger Intl, Inc. v. Rohm & Haas Co., 1998 U.S. Dist. LEXIS
11141, *10 (D.N.J. Apr. 1, 1998)” (denying plaintiff's discovery request noting that-in an effort
to prove the existence of wrongdoing, the plaintiff “not only sought to engage in a fishing
expedition, but sought to drain the pond and collect the fish from the bottom.”).

For the foregoing reasons, Defendants respectfully request that this Court enter an
Order quashing the subpoena in its entirety pursuant to R. 1:9-2.

Respectfully submitted,

JACKSON LEWIS P.C.

s/John K. Bennett
John K. Bennett
Katerina R. Mantell
JKB:krm
CC. Dean R. Maglione, Esq. (via New Jersey e-COURTS)
M. Anthony Barsimanto, Esq. (via New Jersey e-COURTS)

7 A true and correct of Claude is attached to the Suppl. Bennett Cert. as Exhibit 6.

ESX-L-007768-17 07/02/2018 5:19:54 PM Pg 1 of 61 Trans ID: LCV20181155444

John K. Bennett, Esq. (Bar ID #024201980)
Katerina R. Mantell, Esq. (Bar ID #175 162016)
JACKSON LEWIS P.C.
220 Headquarters Plaza
East Tower, 7th Floor
Morristown, New Jerscy 07960-6834
(973) 538-6890
Attomeys for Defendants
enn eee eee eee een ene ne ened x

JUSTIN E. YARNGO SUPERIOR COURT OF NEW JERSEY
LAW DIVISION — ESSEX COUNTY,
Plaintiff,
Vv. DOCKET NO.: ESX-L-7768-17

RUTGERS, THE STATE UNIVERSITY SUPPLEMENTAL CERTIFICATION
OF NEW JERSEY, BRIAN HOWARD. OF JOHN K. BENNETT IN SUPPORT
JOHN DOES 1-20 (hitherto unknown OF DEFENDANTS’ MOTION TO
individuals), JANE DOES 1-20 (hitherto QUASH PLAINTIFF’S SUBPOENA
unknown individuals). and. ABC.
COMPANIES 1-10. (hitherto unknown
entities)

Defendants
e
ee eee
ee ee eee en enn ee nee connect

I, John K. Bennett, Esq., of full age, hereby certify as follows:

1 Tam an attorney-at-law of the State of New Jersey and Principal. with the

law firm of Jackson Lewis P.C., attorneys for Defendants, Rutgers, The State University of New

Jersey, and Brian Howard individually, in this matter. I make this supplemental certification in

support of Defendants’ motion to quash Plaintiff Justin E. Yamgo’s subpoena duces tecum

served upon Ms. Caroline H. Miller, Esq., counsel for the Plaintiffs in a separate and unrelated

case against these same Defendants.

A true and correct copy of Atl. Research Corp. v. Robertson. Freilich,
2.

Bruno & Cohen, L.L.C., 2013 N.J. Super. Unpub. LEXIS 3081 (Law. Div. Mar. 12, 2013), is

attached hereto as Exhibit 1
i BSR ES X-L-007768-17 07/02/2018 5:19:54 PM Pg 2 of 61 Trans ID: LCV20181155444 cess: 285] paket

3 A true and correct copy of Nye v. Ingersoll Rand Co., 2011 U.S. Dist.

LEXIS 7383 (D.N.J. Jan. 25, 2011), is attached hereto as Exhibit 2.

4 A true and correct copy of Getz v. Pennsylvania Blindness and Visual

hereto as Exhibit 3.
Servs,, 1998 U.S. Dist. LEXIS 20262 (E.D. Pa. 1998), is attached
LEXIS
5 A tme and correct copy of Abreu_v. New Jersey, 2015 U.S. Dist.

172621 (D.N.J. Dec. 29, 2015), is attached hereto as Exhibit 4.

6. A true and correct copy of Burns v. Bank of America, 2007 U.S. Dist.
t 5.
LEXIS 40037 (S.D.N.Y., June 4, 2007), is attached hereto as Exhibi
v. Rohm &
7. A true and correct copy of Claude B. Bamberger Int’l, Inc.

is attached hereto as Exhibit 6.
Haas Co., 1998 U.S. Dist. LEXIS 11141 (D.N.J. Apr. L 1998),
aware that if any
I certify that the foregoing statements made by me are true. Tam
subject to punishment.
of the foregoing statements made by me are willfully false, I am

By: s/John K. Bennett, Esq.
John K. Bennett, Esq.

Dated: July 2, 2018

AB49-1707-6844, v. 1
by ESX-L-007768-17 07/02/2018 5:19:54 PM Pg 3 of 61 Trans ID: LCV20181155444 siizrsssata ose

EXHIBIT 1
sel ESX-L-007768-17 07/02/2018 5:19:54 PM Pg 4 of 61 Trans ID: LCV20181155444 sess pepyetocceutaae

@ LexisNexis
8 Neutral
As of: Tune 30, 2018 1:14 AMZ

Atl. Research Corp. v. Robertson, Freilich, Bruno & Cohen, L.L.C.
Superior Court of New Jersey, Law Division, Bergen County
March 12, 2013, Decided; March 12, 2013, Filed
Docket No. BER-L-9620-11 CIVIL ACTION

Reporter
2013 N.J. Super. Unpub. LEXIS 3081 *
ATLANTIC RESEARCH CORPORATION, THIS MATTER was brought before the Court via
SEQUA CORPORATION, Plaintiffs, v. formal motion by defendants, by and through their
ROBERTSON, FREILICH, BRUNO & COHEN, counsel, Scarpone & Vargo, LLC, asking the Court
L.L.C., JEFFREY A. COHEN, KEVIN J. BRUNO, to compel the deposition of Mr. Sam Samaro,
IRVIN M. FREILICH AND ESTATE OF counsel to the plaintiffs in this matter, and to extend
WILLIAM W. ROBERTSON, Defendants. discovery. The Court has considered the issues
raised in the motion, all papers properly filed with
Notice: NOT FOR PUBLICATION WITHOUT the Court by the various parties, and any arguments
THE APPROVAL OF THE COMMITTEE ON made orally to the Court For good cause,
OPINIONS. PLEASE CONSULT NEW JERSEY
RULE 1:36-3 FOR CITATION OF ON THIS 12th day of March 2013, IT IS
UNPUBLISHED OPINIONS. ORDERED that

Subsequent History: Decision reached on appeal 1. Plaintiffs shall produce for deposition Mr. Sam
by Atl, Research Corp. v. Robertson, Freilich, Samaro within 19 days of the date of this Order;
Bruno & Cohen, L.L.C., 2016 NJ. Super. Unpub. and
LEXIS 373 (App.Div., Feb. 22, 2016,
2. Discovery in this matter is extended from March
Counsel: {*1/ Attorneys for Robertson, Freilich, 28, 2013 to April 30, 2013.
Bruno & Cohen, L.L.C. IT IS FURTHER ORDERED this Order will be
served upon all parties within seven (7) days of
receipt.
Jeffrey A. Cohen, Kevin J. Bruno, IrvinM. Freilich
and Estate of William W. Robertson. /sf Joseph S. Conte
Judges: Hon. Joseph S. Conte, J.S.C. Hon. Joseph S$. Conte, TSC.

Opinion by: Joseph S. Conte RIDER
ATLANTIC RESEARCH CORPORATION,
Opinion SEQUA CORPORATION V. ROBERTSON,
FREILICH, BRUNO & COHEN, LLC, ET ALS
ORDER BER-L-9620-11
ESX-L-007768-17 07/02/2018 5:19:54 PM Pg 5 of 61 Trans ID: LCV20181155444; ax HES

Page 2 of 4
’ 2013'N.J. Super. Unpub. LEXIS 3081, *1

Before the Court is a motion to compel the Additionally, Defendants recognize that deposing
deposition of Mr. Sam Samaro and to extend [*2] Mr. Samato implicates the attorney-client privilege,
discovery filed by the Defendants, Robertson, however Defendants note that this privilege is not
Freichlich, Bruno & Cohen, LLC, et als. The absolute and must cede where legal services are
Plaintiff, Atlantic Research Corporation and Sequa sought or rendered in aid of committing a crime or
Corporation oppose said motion. fraud. Defendants also argue that by employing Mr.
Samaro to represent Plaintiffs in this matter when
The Defendants submit that this dispute concerns be also represents Plaintiffs in the underlying
whether certain discovery sanctions in the matter, the privilege is waived, because the client is
underlying case, Atlantic Research Corp. v suing for legal malpractice. Defendants also note
Admiral Insurance, et al., were caused by the that they have a legitimate [*4] need for the
conduct of ARC'S in-house counsel or the conduct relevant information that cannot be obtained from
of RFBC. Successor counsel in the underlying case, any means other than Mr. Samaro. Defendants
including Alan Katz and John Agar and Samuel request the Court to grant the motion compelling
Samaro, Esq. took the position that the obvious and Mr. Samaro's deposition on the above bases.
egregious discovery violations were caused by Mr.
Cohen and would be rectified by them. The In opposition, the Plaintiffs first note that the
Defendant argues that ARC has recognized the comment made by Mr. Samaro at the hearing on the
appropriateness of discovery from its counsel in the motion for sanctions was innocuous and that he
underlying case by consenting to the depositions of possesses no first-hand information relevant to this
Mr. Agar and Mr. Katz. The only complaint or case. The Plaintiffs argue that there is no basis for
objection was as to the insistence that the the Court to allow the deposition of Mr. Samaro to
depositions be taken at the witness' office in New be taken because any comment he made to the
York and their assertion of a- privilege as to Special Discovery Master Keefe was based on
communications between attorney witnesses and acquired second-hand knowledge.
their client subsequent to the termination of Mr.
Plaintiff argues that Defendants have not made an
Cohen as counsel at the end of June 2010.
adequate showing to compel the deposition of Mr.
In August of 2010, the Defendants argue that new Samar. The Plaintiff notes that any information Mr.
information was learned that required [*3] the Samaro has could not possibly lead to the discovery
deposition of Mr. Samaro. Defendants note that Mr. of other relevant information, especially given the
Samaro is also co-lead counsel for the Plaintiffs in basis on which Defendants seek to depose him.
the underlying case. In the motion for sanctions, Plaintiff also points to the fact that NJ Courts
Mr. Samaro attended the hearing on behalf of disfavor the practice of taking the deposition of a
Plaintiffs and made certain representations to party's attorney, as it was set forth in Kerr v. Able
Special Discovery Master Keefe concerning a Sanitary and Environmental Services. Inc., 295 N.J.
relationship between Mr. Cohen and Mr. Lowson. Super__147, 684 A.2d 961 (App. Div, 1996). The
Defendants wish to depose Mr. Samaro about those Court in Kerr noted that a party's request to depose
representations including how he came to learn opposing counsel gives rise to presumptive “good
about the supposed "dysfunction" and what cause" for a protective order [*5] under R. 4:10-
documents or other evidence exists to prove this 3(a). Kerr at 157-58. The burden then shifts to the
"dysfunction." deposition proponent to overcome the presumption

Case Info

Judge

FURNARI, GARRY Track Judge’s New Case

Case No.

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Document Filed Date

July 02, 2018

Case Filing Date

November 02, 2017

County

Parties

Abc Companies 1-10 Defendant
Abc Companies 1-10 Defendant
Brian Howard Defendant
Dean R Maglione Attorney for the Plaintiff
Jane Does 1-20 Defendant
Jane Does 1-20 Defendant
John Does 1-20 Defendant
John Does 1-20 Defendant
John K Bennett Attorney for the Defendant
Justin E Yarngo Plaintiff
Rutgers The State University Defendant
Elizabeth Boylan Attorney
BRIAN CANN Attorney

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Motion-Secondary: Yarngo Vs Rutgers The State University Of Nj

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