Preview
BER-L-004752-21 02/23/2024 1:41:36 PM Pglof2 Trans ID: LCV2024483469
ATTORNEYS AT LAW
ONE BLUE HILL PLAZA
NEIL H. DEUTSCH, (RET.) 21 MAIN STREET, SUITE 352 P.O. Box 1647
Bruce L. ATKINS, AV@? COURT PLAZA SOUTH PEARL RIVER, NY 10965
ADAM J. KLEINFELDT! HACKENSACK, NEW JERSEY 07601 (845) 920-0200
Desra M. McGarvey! —
TELEPHONE: (201) 498-0900
CARLY SKARBNIK MEREDITH! 260 MADISON AVE., 17™ FLOOR
— FACSIMILE: (201) 498-0909
New York, New York 10016
JASON TODD MUSHNICK* WEBSITE: www.deutschatkins.com (800) 920-0200
DIANE ENGLANDER PEYSER WRITER'S DIRECT E-MAIL: jmushnick@DeutschAtkins.com
RJ PRIFITERA Please respond to the Hackensack Office
—
OF COUNSEL ADMITTED IN NJ
ADMITTED IN NJ & NY!
Laura G. WEISS? ADMITTED IN NJ, NY & FL?
February 23, 2024 ADMITTED IN NY?
ADMITTED IN NJ, NY & NC*
VIA E-FILING ONLY
Hon. Christine A. Farrington, J.S.C.
Superior Court of New Jersey
Bergen County Courthouse
10 Main Street
Hackensack, NJ 07601
Re: Kimberly Vele v. Borough of Englewood Cliffs, et al.
Docket No. BER-L-004752-21
Letter Brief in Opposition to Motion for Stay Pending Appeal and
Motion for Reconsideration
Dear Judge Farrington:
This office represents Kimberly Vele (“Ms. Vele” or “Plaintiff’) in the above-referenced
matter. Enclosed with this correspondence are Exhibit C, accurate copies of the Orders dated
September 9, 2021, January 12, 2022, January 20, 2022, June 24, 2022, August 4, 2022, October
31, 2022, April 4, 2023, September 19, 2023, October 24, 2023, November 17, 2023, December
1, 2023, and December 22, 2023, and February 2, 2024 and Exhibit D, a true and accurate copy of
the Opposition and Cross-Motion Brief to Compel the Continued Videotaped Deposition of
Defendant Kranjac filed on in the Duffy matter BER-L-3313-2, on February 8, 2024 and Exhibit
I attached to that motion which is the accompanying transcript of the Deposition of Mario Kranjac.
These exhibits were erroneously omitted from the filing last night.
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Hon. Christine A. Farrington, J.S.C. (ret’d)
February 23, 2024
Page 2
Plaintiff includes Exhibit D only because non-Party Kranjac referenced certain portions of
this deposition in his Motion papers. While it is not relevant to deciding these Motions, Plaintiff
would like to provide the Court the opportunity to review the complete picture of Mr. Kranjac and
his counsel Patrick Tobia, Esq.’s conduct during the deposition.
We appreciate the Court’s time and attention to this matter.
Respectfully submitted,
/s/ Jason T. Mushnick
JASON T. MUSHNICK
cc: All counsel of record
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EXHIBIT C
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FILED
SEP 09 2021
PREPARED BY THE COURT
KIMBERLY VELE, STINE A. FARRINGTON,
SUPERIOR of URT
HR OF S80V JERSEY
LAW DIVISION
BERGEN COUNTY
Plaintiff,
DOCKET NO. BER-L-4752-21
Vv.
BOROUGH OF ENGLEWOOD CIVIL ACTION
CLIFFS; LAURA BORCHERS,
CUSTODIA OF RECORDS FOR
THE BROOUGH OF ENGLEWOOD ORDER
CLIFFS, and JOHN AND JANE
DOES 1-10.
Defendanis.
THIS MATTER having come before the court by Plaintiff, Kimberly Vele, represented by
Bruce L. Atkins, Esq., and Debra M. McGarvey, Esq. (Deutsch Atkins & Kleinfeldt, P.C.), by way
of Order to Show Cause and Verified Complaint, and opposition having been filed by Defendants
the Borough of Englewood Cliffs and Laura Borchers, represented by Eric M. Bernstein, Esq. and
Dominic P. DiYanni, Esq. (Eric M. Bernstein and Associates, L.L.C.); and for the reasons set forth
in the written rider attached hereto; and for other good cause shown;
IT IS on this 9th day of September, 2021, ORDERED
L The June 4, 2021
a. Defendants having produced the requested records pursuant to Request | since the
inception of this litigation, the issue of production with respect to this request is
hereby dismissed as moot.
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b. Defendants improperly denied Request 3 under the overbroad exemption
c. Defendants improperly withheld records for Request 4.
d, Defendants improperly withheld the OEM stipends sought in Request 5
2. The June 10, 2021
a. Defendants improperly denied Requests 3, 4, 5, and 6
Plaintiff is a prevailing party under the OPRA statute and is accordingly entitled to an award of a
reasonable attorney’s fee. The parties will endeavor to agree upon counsel fees. In the event the
parties are unable to agree, the plaintiff shall submit the appropriate affidavit of services.
Defendant shall file any objections thereto within 7 days of the uploading of plaintiff's affidavit to
eCourts.
3. The court hereby provides a copy of this Order to all counsel of record on this date via
eCourts Civil. Plaintiff shall serve a copy of this Order and Rider upon any parties not
noticed electronically within three (3) days of the date of this Order.
Opposed
Of were Lie fr
Christine Farrington, J.S.C., ret’d, t/a
c
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KIMBERLY VELE V. BOROUGH OF ENGLEWOOD CLIFFS, ET AL.
Docket No, BER-L-4752-2
RIDER TO ORDER DATED SEPTEMBER 9, 2021
BACKGROUND
On May 20, 2021 and May 21, 2021, Plaintiff, a resident of the Borough of Westwood,
New Jersey, made 39 separate requests for government records maintained by Defendants,
Borough of Englewood Cliffs (“Borough” or “Defendant”).
On June 1, 2021, Defendants replied via letter, denying all requests due to lack of
specificity, vagueness, and ambiguity.
On June 4, 2021, Plaintiff sent a letter to the Borough’s custodian of Records, Laura
Borchers, “simplify[ing] the requests”. Plaintiff made 6 separate requests. At issue are requests 1,
3, and 5, which were denied by the Borough.
The June 4" requests are as follows:
Request No. 1 Copies of all RICE notices served upon Lisette Duffy,
Borough Clerk for the Borough of Englewood Cliffs, spanning Ms.
Duffy’s tenure of employment with the Borough,
Defendants’ Response: Please see attached Rice notices that the Borough
currently has and can retrieve. A further search is being conducted for any
remaining responsive Rice notices and will be provided if obtained.
Request No. 3 Copies of all Borough of Englewood Cliffs Resolutions
regarding Borough Clerk, Lisette Duffy’s employment spanning Ms.
Duffy’s tenure of employment with the Borough.
Defendants’ Response: Please be advised that this request for emails is
hereby denied by the Borough of Englewood Cliffs. The request is
considered a vague and/or ambiguous request. Furthermore, the request is
excessive in that it seeks records spanning over a period of fourteen (14)
years. In addition, a search for “Lisette Duffy” would find that her name
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would be referenced and/or included on virtually all of the Resolutions
passed by the Borough of Englewood Cliffs within that requested time
frame. Additional clarification would have to be provided in order for the
subject request to be considered a valid OPRA request. As such, your
request, as currently constituted, is considered an invalid OPRA request at
this time and is therefore denied. A proper request under OPRA must
identify with reasonable clarity those documents that are desired and a
party cannot satisfy this requirement by simply requesting “any and all”
ofan agency’s documents. Bent v. Stafford Police Department, 381 N.J.
Super. 30, 37 (App. Div. 2005). More importantly, custodians are not
required to conduct research or create new records in response to an OPRA.
request. See also MAG Entertainment, LLC v. Division of Alcoholic
Beverage Control, 375 N.J. Super. 534, 546 (App. Diy. 2005). This request
clearly requires the Borough to conduct some research and/or compile
information which is not the purpose and/or intent of OPRA. In addition,
the request seeks voluminous information (seeking 14 years of resolutions
concerning Lisette Duffy) and appears to be a fishing expedition for
information for Ms. Duffy's current litigation with the Borough and which
size and scope of said request is clearly not within the spirit and intent of
the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. See also New
Jersey Builders Ass'n v. New Jersey Council on Affordable Housing, 390
N.J. Super. 166, 178-179 (App. Div. 2007),
Request No. 5 A copy of the April 20, 2021 email from Acting Borough
Administrator, Carrol McMorrow to Borough Clerk, Lisette Duffy
regarding OEM Stipends.
Defendants’ Response: Please be advised that this request is denied as
exempt from disclosure as same is considered a personnel record pursuant
toN.J.S.A. 47:1A1.1 and N.J.S.A. 47:1A-10.
On June 10, 2021, Plaintiff made a second set of 8 OPRA requests. At issue are requests
3, 4, 5, and 6, which were denied by the borough.
The June 10" requests are as follows:
Request No. 3 For the period from January 1, 2018 to June 10, 2021, all
emails between Mayor Mario Kranjac (mkranjac@englewoodcliffsnj.org
and/or mkranjac@ktpllp.com) and Carrol MeMorrow
(cmemorrow@englewoodcliffsnj.org and/or cememorrow@aol.com)
regarding Lisette Duffy.
Request No. 4 For the period from January 1, 2018 to June 10, 2021, all
emails between Mayor Mario Kranjac (mkranja¢@englewoodcliffsnj.org
4
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and/or mikranjac@ktpllp.com) and William Woo
(wwoo@englewoodcliffsnj.org and/or wwoo88@gmail.com and/or
wwoo7777@gmail.com) regarding Lisette Duffy,
Request No. 5 For the period from January 1, 2018 to June 10, 2021, all
emails between Carrol McMorrow (cmemorrow@englewoodcliffsnj.org
and/or ememorrow@aol.com) and William Woo
(wwoo@englewoodcliffsnj.org and/or wwoo88@gmail.com and/or
wwoo7777@gmail.com) regarding Lisette Duffy.
Request No. 6 For the period from January 1, 2018 to June 10, 2021, all
emails between Mayor Mario Kranjac (mkranjac@englewoodcliffsnj.org
and/or mkranjac@ktpllp.com) and William Woo
(wwoo@englewoodcliffsnj.org and/or wwoo88@gmail.com and/or
wwoo7777@ginail.com) regarding Lisette Duffy.
[See Exhibit E to Verified Complaint].
In response to the June 10" requests, on June 22, 2021, Defendants denied Plaintiff's
Request Nos. 3- 6 with one response as follows:
Please be advised that this request for emails is hereby denied by
the Borough of Englewood Cliffs. First, the request fails to identify
specific government records (subject matter) and is considered a vague
and/or ambiguous request. Furthermore, the request is excessive in that it
seeks records spanning over a period of three and one half (3%) years. As
such, your request, as currently constituted, is considered an invalid OPRA
request at this time and is therefore denied. A proper request under OPRA
must identify with reasonable clarity those documents that are desired and
a party cannot satisfy this requirement by simply requesting “any and all”
of an agency's documents. Bent v. Stafford Police Department, 381 N.J.
Super. 30, 37 (App. Div. 2005). More importantly, custodians are not
required to conduct research or create new records in response to an OPRA.
request. See also MAG Entertainment, LLC y. Division of Alcoholic
Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005). This request
clearly requires the Borough to conduct some research and/or compile
information which is not the purpose and/or intent of OPRA. In addition,
the request seeks voluminous information (seeking 3 % years of emails
concerning Lisette Duffy) and appears to be a fishing expedition for
information for Ms. Duffy's current litigation with the Borough and which
size and scope of said request is clearly not within the spirit and intent of
the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. See also New
Jersey Builders Ass'n v. New Jersey Council on Affordable Housing, 390
N.J. Super. 166, 178-179 (App. Div. 2007).
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On August 17, 2021, Defendant Borough filed an Answer and Opposition to Plaintiff's
OTSC. Defendants assert that the June 4" and June 10 OPRA requests were satisfied because
responsive documents were properly provided, denied and/or exempted pursuant to OPRA.
Further, Defendants assert that Plaintiff withdrew her May 20, 2021 and May 21, 2021 requests,
and therefore has no cause of action for either of those. Defendants also assert they are entitled to
an award of prevailing party attorneys fees.
APPLICABLE LAW
QOPRA
The purpose of OPRA (N.J.S.A. 47:1A-1 to 13) is plainly set forth in the statute: “to insure
that government records, unless exempted, are readily accessible to citizens of New Jersey for the
protection of the public interest.” Mason v. City of Hoboken, 196 N.J. 51, 57 (2008) (citing
N.JS.A. 47:1A-1). The Act replaced the former Right to Know Law, N.J.S.A. 47:1A-1 to -4
(repealed 2002) and perpetuates “the State’s long-standing public policy favoring ready access to
most public records.” Bent v. Twp. of Stafford Police Dep’t, 381 N.J. Super. 30, 36 (App. Div.
2005) (quoting Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 363 (App. Div. 2003). To
accomplish that objective, OPRA establishes a comprehensive framework for access to public
records. Mason, 196 N.J. at 57. Specifically, the statute requires, inter alia, prompt disclosure of
records and provides different procedures to challenge a custodian’s decision denying access, Id.
OPRA mandates “all government records shall be subject to public access unless exempt.”
N.JS.A. 47:1A-1. Therefore, records must be covered by a specific exclusion to prevent
disclosure. Id, The Act defines “government record” as follows:
[A]ny paper, written or printed book, document, drawing, map, plan,
photograph, microfilm, data processed or image processed document,
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information stored or maintained electronically or by sound-recording or
ina similar device, or any copy thereof, that has been made, maintained or
kept on file in the course of his or its official business by any officer,
commission, agency or authority of the State or of any political
subdivision thereof, including subordinate boards thereof, or that has been
received in the course of his or its official business by any such officer,
commission, agency, or authority of the State or of any political
subdivision thereof, including subordinate boards thereof.
NJS.A. 47:1A-1.1,]
OPRA considers the following public employee information to be public information:
.. an individual’s name, title, position, salary, payroll record, length of
service, date of separation and the reason therefor, and the amount and
type of any pension received
(N.LS.A. 47:1A-10.]
In OPRA actions, the public agency bears the burden of proving the law authorizes the
denial of access. N.J.S.A. 47:1A-6, As such, an agency “seeking to restrict the public’s right of
access to government records must produce specific reliable evidence sufficient to meet a
statutorily recognized basis for confidentiality.” Courier News v. Hunterdon Cty. Prosecutor’s
Office, 358 N.J. Super, 373, 382-83 (App. Div. 2003). Absent the necessary proofs, “a citizen's
right of access is unfettered.” Id. Additionally, in assessing the sufficiency of the proofs submitted
by the agency in support of its claim for nondisclosure, “a court must be guided by the overarching
public policy in favor of a citizen’s right of access.” Id.
Thus, where access has been improperly denied under either OPRA or the common law
right of access, such access shall be granted, and a prevailing party shall be entitled to a reasonable
attorney’s fee. See N.J.S.A. 47:1A-6. See also Mason, 196 N.J. at 76 (holding that “OPRA
requestors are entitled to attomeys’ fees even absent a judgment or enforceable consent decree,
when they can demonstrate, under the catalyst theory, that: (1) a factual causal nexus between
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plaintiffs litigation and the relief ultimately achieved; and (2) that the relief ultimately secured by
plaintiffs had a basis in law.”) (internal citations & quotation marks omitted), and at 79 (“[W]e
conclude that the catalyst theory applies to common lawsuits as well.”).
Although OPRA defines “government record” broadly, the public’s right of access is not
absolute. Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J. 274, 284 (2009) (citing Mason, 196 N.J.
at 65), In particular, the Supreme Court has noted “records within the attorney-client privilege or
any executive or legislative privilege, as well as items exempted from disclosure by any statute,
legislative resolution, executive order, or court rule” are excluded. Mason, 196 N.J. at 65. OPRA
governs “requests for records, not for information.” Burke v. Brandes, 429 N.J. Super. 169, 174
(App. Div. 2012) (quoting Bent, 381 N.J. Super. at 37).
The custodian is obliged to “locate and redact [the requested] documents, isolate exempt
documents, . . . identify requests that require ‘extraordinary expenditure of time and effort’ and
warrant assessment of a ‘service charge,’ and, when unable to comply with a request, ‘indicate the
specific basis’” thereof. Spectraserv. Inc. v. Middlesex Cty. Utilities Auth., 416 N.J. Super. 565,
576 (App. Div. 2010) (quoting N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J.
Super. 166, 177 (App. Div.), certif. denied, 190 N.J. 394 (2007) (internal quotation marks
omitted)), The basis for denying an overly broad request is premised upon the second sentence of
N.JLS.A. 47:1A-5(g): “If the custodian is unable to comply with a request for access, the custodian
shall indicate the specific basis therefor on the request form and promptly return it to the
requestor.” N.JS.A. 47:1A-5(g).
Overbreadth
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Courts have repeatedly held that a request may be denied where the scope of the request is
overbroad, noting that “OPRA does not countenance ‘wholesale requests for general information
or open-ended demands ‘for every document a public agency has on file.”” Ibid. (citing MAG
Entm’t, LLC v, Div. of Alcoholic Beverage Ctrl, 375 N.J. Super. 534, 549 (App. Div. 2005) and
Bent, 381 N.J. Super. at 37). In order to avoid such a denial, “a party requesting access to a public
record [must] specifically describe the document sought, so that the records may be readily and
reasonably identified within the short time frame within which government custodians must
respond.” Ibid. Under this standard, a requestor must “identify with reasonable clarity those
documents that are desired, and a party cannot satisfy this requirement by simply requesting al of
an agency’s documents.” Bent, 381 N.J. Super, at 36-37 (emphasis in original). “Wholesale
requests for general information to be analyzed, collated, and compiled by the agency are outside
OPRA’s scope.” Burke, 429 N.J. Super. at 174.
In contrast, courts have determined requests for “particularized identifiable government
records . . . rather than information generally” are permissible. Burke, 429 N.J. Super. at 176-77.
Stated differently, the Appellate Division has found requests that identified a specific subject
matter with sufficient identifying information were not overly broad even where a custodian was
required to search and locate records according to a specific topic area. For instance, the Burnett
Court found that a request for “any and all settlements, releases or similar documents entered into,
approved or accepted from 1/1/2006 to present” was permissible under OPRA. Burnett v. Cty of
Gloucester, 415 NJ. Super. 506, 508-09 (App. Div. 2010). “The fact that the plaintiff did not
specify matters to which the settlements related ‘did not render his request a general request for
information obtained through research, rather than a request for a specific record.’” Burke, 429
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N.J. Super. at 176-77 (citing Burnett, 415 N.J. Super, at 508-09), The Appellate Division has also
permitted an OPRA request which was
confined to a specific subject matter that was clearly and reasonably
described with sufficient identifying information, namely, E-Z Pass
benefits provided to Port Authority retirees . . . [T]he request was limited
to particularized identifiable government records, namely, correspondence
with another government entity, rather than information generally.
Burke, 429 N.J. Super. at 176-77.]
In Burke, the permissible requests did not require a custodian to exercise discretion, survey
employees or conduct research, rather, the responsive records “could have readily been identified,
located, and produced from a routine search of files pertaining to a very narrowly specified topic.”
Id. at 177.
DECISION
June 4" Requests
Defendants properly responded to Request 1. It is reasonable to assume that 2021 RICE
notices are more readily available than RICE notices from previous years. Further, Defendants did
not refuse to provide the older RICE notices; instead, Defendants merely stated that they will
continue the search for additional RICE notices and provide them if they are found.
Defendants improperly denied Request 3 under the overbroad exemption. In Burnett, a
request for any and all settlements or similar documents was considered a particularized
identifiable government record. Burnett, 415 N.J. Super at 508-09; see Burke, 429 N.J. Super. at
176-77. Request 4 is more specific than the request in Burnett because it seeks records specific to
Lisette Duffy’s employment with the Borough spanning her entire career. The topic is more
particularized than in Burnett and the dates are comparably specific. Defendants’ excuse, that a
4
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search of “Lisette Duffy” renders many unrelated resolutions, is not a recognized exemption.
Therefore, Defendants improperly withheld records for Request 4.
Defendants improperly withheld the OEM stipends sought in Request 5 because these
stipends are not protected employee records. See N.J.S.A. 47:1A-10. OPRA states that an
employee’s name and salary, among other things, are accessible government records. N.J.S.A.
47:1A-10. It is only logical that OEM stipends are similar in nature to salary information. Further,
Request 5 is narrowly tailored to a single OEM stipend issued on April 20, 2021. Therefore,
Defendants should have disclosed the requested information on OEM stipends issued to Lisette
Duffy.
June 10" Requests
Defendants improperly denied Requests 3, 4, 5, and 6 as vague and excessive. Plaintiff's
tequests were particularized because they sought emails between specific people regarding Lisette
Duffy. The requests were also limited in time from January 1, 2018 to June 10, 2021, These
requests are more particularized than those in Burnett. Therefore, the Defendants improperly
denied these requests based on vagueness. Further, these requests are not voluminous because they
are seeking email exchanges regarding Lisette Duffy. The requests are not. seeking all email
exchanges between the Borough officials. Defendants should have disclosed the information
requested in Requests 3, 4, 5, and 6.
Attorneys Fees
Defendants argue that even if plaintiff is the prevailing party, she is not entitled to counsel
fees citing an unreported case which, in turn cites reported cases, including Courier News v.
Hunterdon Cty. Prosecutor’s Office, 3378 N.J. Super. 539, (App. Div. 2005). The crux of
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defendants’ argument is N.J.S.A. 47:1A-6 which makes reasonable counsel fees mandatory to the
prevailing party does not apply to attorneys representing themselves. In support of this argument,
they posit that the OPRA requests were made by a paralegal in plaintiff's attorney’s law office.
The underlying lawsuit is entitled in plaintiff Kimberly Vele’s name. The attorney was not
representing himself/herself. The fact that the OPRA request was made by her attorney or a
paraprofessional in that office does not work to deny counsel fees to plaintiff as a prevailing party.
The parties are ordered to confer and attempt to agree on the quantum of reasonable counsel
fees. In the event they are unable to do so, plaintiff shall submit the appropriate affidavit of
services pursuant to RPC 1.5.
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ER L 004752-21 01/12/2022 9 1 of 7 Trans ID: LCV2022132504
FILED
Amended by the Court
JAN 42 2022
DEUTSCH ATKINS & KLEINFELDT, P.C. CHRISTINE FARRINGTON,
Bruce L. Atkins, Attorney ID: 021291977
Debra M. McGarvey, Attorney ID: 01802007
21 Main Street, Suite 352
Court Plaza South
Hackensack, New Jersey 07601
Tele: (201) 498-0900
Fax: (201) 498-0909
Attorneys for Plaintiff, KimberlyA. Vele
} SUPERIOR COURT OF NEW JERSEY
KIMBERLY A. VELE, i LAW DIVISION: BERGEN COUNTY
DOCKET NO.: BER-L-4752-21
Plaintiff,
CIVIL ACTION
¥.
BOROUGH OF ENGLEWOOD CLIFFS; ORDER
LAURA BORCHERS, CUSTODIAN OF
RECORDS FOR THE BOROUGH OF
ENGLEWOOD CLIFFS, and JOHN AND
JANE DOES 1-10.
Defendants,
THIS MATTER, having been opened to the Court by Deutsch, Atkins, & Kleinfeldt,
P.C., attorneys for Plaintiff Kimberly A. Vele, by way of her Motion to Enforce Litigants Rights,
and the Court having considered the papers submitted, and for good cause shown,
IT IS on this 12" day of January, 2022,
ORDERED that Plaintiff's Motion to Enforce Litigant's Rights and Hold Defendants in
Contempt of Court is hereby GRANTED;
ORDERED that Defendants will respond in full and produce the documents responsive to
the Court’s September 9, 2021 Order within ten (10) days of this Order;
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ER L 004 /52-21 01/12/2022 'g 2 of 7 Trans ID: {CV2022132504
ORDERED that Defendants shall pay to Plaintiff's Counsel reasonable attorneys’ fees
incurred in connection fo this motion. Counsel will confer and attempt to agree on the amount of
fees.
ORDERED that should the requested documents not be furnished within ten (10) days of
this Order, ordering financial sanctions of $250 for every day Defendants fail to produce the
documents commencing January 18, 2022; and it is
FURTHER ORDERED that a copy of this Order shall be served upon all parties by the
court via eCourts.
Opposed
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UUs IL-21 UII aZ0Ze g 3 or / trans ID: LCV2022132504
KIMBERLY A. VELE v. BOROUGH OF ENGLEWOOD CLIFFS, LAURA BORCHERS,
Custodian of Records for the Borough of Englewood Cliffs, and JOHN AND JANE DOES 1-10.
lo. BI “21
RIDER TO ORDER ENFORCING LITIGANT’S RIGHTS
DATED January 12, 2022
Facts and Procedural History
This matter comes before the court on Plaintiffs motion to enforce litigant’s rights and
hold Defendants in Contempt of Court for failure to comply with the Court’s Order of September
9, 2021. Further, this matter comes before the court on Defendants’ motion for attorneys’ fees and
costs for legal services rendered pursuant to the Court’s Order of September 9, 2021. In that Order,
this court ruled that (1) Defendants improperly denied Plaintiff's June 4, 2021 requests for copies
of all Borough of Englewood Cliffs settlements regarding Borough Clerk, Lisette Duffy’
employment spanning her tenure of employment with the Borough and OEM stipends that were
sought, (2) Defendants improperly denied Plaintiff of June 10, 2021 records requests regarding
emails between Borough of Englewood Cliffs officials, and (3) Plaintiff was entitled to attorneys
fees as a prevailing party. The Order stipulated the parties would endeavorto agree upon counsel
fees.
On October 20, 2021, Plaintiff filed a motion to enforce litigant’s rights and for attorneys
fees as ordered by the court. Plaintiff's certification in support of the motion argues that (1)
Defendantto that date had not complied with the Court’s Order from September 9, 2021 to produce
responsive records, (2) Plaintiff is entitled to fees and to date, the parties had not come to an
agreement on reasonable counsel fees, and (3) Plaintiff is entitled to fees an costs associated with
the filing of this motion.
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On October 27, 2021, Defendants filed an adjournment request, which was granted by this
court. The motion was therefore rescheduled to be heard on December 8, 2021. On November
23, 2021, Plaintiff filed a subsequent adjournment request, which was also granted by this court.
The motion was ultimately rescheduled to be heard on January 7, 2022.
On January 3, 2022, this court learned from correspondence submitted by the Plaintiff that
the parties agreed upon an amount for attorneys” fees on or around November 17, 2021. While
the fees were agreed upon, Plaintiffs asserted that the fees have yet to be paid. Further, Plaintiff
asserted that, while some of the responsive documents have been produced, many documents
compelled for production by. the Court Order of September 9, 2021, have yet to be produced.
On that same date, Defendants submitted correspondence request a third adjournment of
this motion. In that same correspondence, Defendants confirmed the attomeys’ fees were agreed
upon, and that payment has not been made due to “delays related to COVID and other.problems
[that] have plagued Borough Hall in many ways.” The attorneys’ fees agreement was approved
by the Borough Council at a meeting on December 8, 2021, and Defendants insist it takes
approximately thirty (30) days to process the payment. Despite the request for an adjournment,
this Court decided to hear the Motion to Enforce Litigants’ Rights as scheduled on January 7,
2022.
We
Rule 1:10-3 provides relief where the party against whom the motion is made has failed to
do something ordered by the Court for the benefit of the opposing party. Courts have ruled that
“{t]he power of the Court to enforce an order has neither been put in question . . . nor is it
questionable.” Board of Educ.. Tp. of Middletown v. Middletown Tp. Educ. Ass'n, 352 N.J. Super.
501, 508 (Ch, Div. 2001). The relief sought through a motion underR. 1:10-3 to enforce a Court
order is essentially coercive. D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990). Thus, orders
2
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entered pursuant to R. 1:10-3 motions are “coercive measures by a Court to force compliance by
a recalcitrant party, Anyanwuy. Anyanwu, 339 N.J. Super. 278, 290 (App. Div. 2001).
When enforcing a Court order, Courts have ruled that “[t]he particular manner in which
compliance may be sought is left to the Court's sound discretion.” Board of Educ.. Tp. of
Middletown, supra, 352 N.J. Super. at 509, Courts have also ruled that “[a] monetary sanction
imposed pursuant to R. 1:10-[3] and unrelated
to a litigant's damages
is an entirely proper tool to
compel compliance with a Court order.” Franklin Tp. Bd. of Educ. v. Quakertown Educ. Ass’
274 N.J. Super. 47, 55 (App. Div. 1994); se Ridley v. Dennison, 298 N.J. Super. 373, 381
(App. Div. 1997) (“[w]e do not dispute the view that a monetary sanction imposed pursuant to R.
1:10-3 is a proper tool to compel compliance witha Court order.”). However, such a sanction
“must not be so excessive as to constitute ruinous punishment." Franklin Tp. Bd. of Educ., supra,
274 NJ. Super, at 56. Instead, the particular method of relief given “ought to be carefully tailored
and sometimes issued in a particular sequence--from least to most drastic.” Board of Educ., Tp.
of- Middletown, supra, 352 N.J. Super. at 509. Courts should hesitate before ordering the most
severe sanctions, because the goal of sanctions underR. 1:10-3 “is compliance and nothing but
compliance.” Ibid. In addition, the Court must consider “the offending party's ability to pay and
the sanction's impact on that party in light of its income, status and objectives, as well as the
sanction's impact on innocent third parties.” Franklin Tp. Bd. of Educ., supra,
274 N.J. Super.at
56 (citing East Brunswick
Bd. of Educ. v. East Brunswick
Educ. Ass'n, 235 N.J. Super. 417 (App.
Div. 1989)). Thus, when ordering a monetary sanction pursuant to R. 1:10-3, the Court must
fashion relief that compels the party to comply, without punishing the party.
In addition to a monetary sanction to compel compliance, R, 1:10-3 also states that “[t]he
Court in its discretion
may make an allowance for counsel fees to be paid by any party to the action
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to a party accorded relief under this rule.” However, an award of counsel fees under this rule is
Jersey City
only available to a party that has obtained relief. See Redeve lopmen Clean-
Agency v. t
O-Mat Corp., 289 N.J. Super. 381 (App. Div. 1996). Thus, if a party prevails in its motion to
enforce litigant’s rights; a Court may use its discretion to award counsel fees expended in
conjunction with filing the motion.
Analysis
Since both parties have agreed upon counsel fees, this court does not need to decide on
that issue. Therefore, the court must determine whether Defendants are in contempt of court for
failing to produce the responsive documents under the Court Order of September 9, 2021.
Since the Court Order of September 9, 2021, while Defendants have produced a portion
of the responsive documents, many documents remain outstanding. Specifically, Defendants
have failed to respond in full and produce the electronic communications for the years 2018,
2019 and 2020 responsive to Plaintiff's June 4, 2021 and June 10, 2021 OPRA requests.
The court
has the authority underR. 1:10-3 to provide relief where the party against
whom the motion is made has failed to do something ordered by the Court for the benefit of the
opposing party. Further, the court has the authority to use coercive measures to force a
recalcitrant party to comply to a previous court order. Here, Defendants have failed to comply
with this Court’s Order of September 9, 2021 by failing to produce the responsive documents to
Plaintiff's June 4, 2021 and June 10, 2021 OPRA requests. Therefore, they are subject to
sanctions by this court if they cannot comply with its previous Order to produce all responsive
documents to Plaintiff.
When determining sanctions, such a sanction may “notbe so excessive as to constitute
ruinous punishment.” Franklin Tp. Bd. of Educ., supra, 274 N.J. Super. at 509. The goal of
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sanctions is merely for party to comply, and the court must consider the “offending party’s
ability to pay and the sanction’s impact on that party in light of its income, status and objectives,
as well as the sanction’s impact on innocent third parties.” Ibid. (citing East Brunswick Bd. of
Edue, y. East Brunswick Educ, Ass’n, 235 N.J. Suver. 417 (App. Div. 1989).). In consideration
of these factors, this court will impose a monetary sanction pursuant to R. 1:10-3 that will
compel the Defendants to comply without punishing the party,
Despite adjournments of this Motion for over two months, the responsive documents still
have not been produced in toto. Further, Defendants have failed to produce a single document to
the Plaintiff since December 8, 2021, the previous scheduled return date, Defendants’ failure to
produce a single responsive document since the most recent adjournment indicates a likelihood
that they do not intend to comply with this Court’s Order entered on September 9, 2021.
Fot the foregoing reasons, this court finds the Defendants in violation of litigants’ rights.
The court orders Defendants to produce all responsive documents from Plaintiff's June 4, 2021
and June 10, 2021 OPRA requests within ten (10) days of this Order. This court also orders that
Defendants shall pay to Plaintiffs Counsel reasonable attorneys’ fees and costs incurred in
connection to this motion. Counsel will confer and attempt to agree on the amount of fees.
If the responsive documents are not produced within ten (10) days of this Order, this
court will then impose financial sanctions of $250 for every day Defendants fail to produce the
documents commencing January 18, 2022.
CHRISTINE A. FARRINGTON, J.8.C.
Christine Farrington, J.S.C., ret’d, t/a
Opposed
BER-L-004752-21 02/23/2024 1:41:36 PM Pg 21 0f99 Trans ID: LCV2024483469
wt
a S
Amended by the Court FILED
DEUTSCH ATKINS & KLEINFELDT, P.C. JAN 20 2022
Bruce L. Atkins, Attorney ID: 021291977
Debra M. McGarvey, Attorney ID: 01802007
CHRISTINEA FARRINGTON,
21 Main Street, Suite 352
Court Plaza South
Hackensack, New Jersey 07601
Tele: (201) 498-0900
Fax: (201) 498-0909
Attorneys for Plaintiff, Kimberly A. Vele
i SUPERIOR COURT OF NEW JERSEY
KIMBERLY A. VELE, i LAW DIVISION: BERGEN COUNTY
i
Plaintiff, DOCKET NO.: BER-L-4752-21
CIVIL ACTION
AMENDED
BOROUGH OF ENGLEWOOD CLIFFS; ORDER
LAURA BORCHERS, CUSTODIAN OF
RECORDS FOR THE BOROUGH OF
ENGLEWOOD CLIFFS, and JOHN AND
JANE DOES 1-10.
Defendants.
THIS MATTER, having been opened to the Court by Deutsch, Atkins, & Kleinfeldt,
P.C,, attorneys for Plaintiff Kimberly A. Vele, by way of her Motion to Enforce Litigants Rights,
and the Court having considered the papers submitted, and for good cause shown,
IT IS on this 20" day of January, 2022,
ORDERED, the order of the court filed January 12, 2022 is amended as follows:
ORDERED that Plaintiffs Motion to Enforce Litigant's Rights and Hold Defendants in
Contempt of Court is hereby GRANTED;
ORDERED that Defendants will respond in full and produce the documents responsive to
BER-L-004752-21 02/23/2024 1:41:36
20 PM Pg 22 0f99_ Trans ID: LCV2024483469
the Court’s September 9, 2021 Order within ten (10) days of January 12, 2022;
ORDERED that Defendants shall pay to Plaintiff's Counsel reasonable attorneys’ fees
incurred in connection to this motion. Counsel will confer and attempt to agree on the amount of
fees.
ORDERED that should the requested documents not be furnished on or before January
22, 2022, defendant shall pay sanctions of $250 per diem for each day Defendants fail to produce
the documents commencing January 23, 2022; and it is
FURTHER ORDERED that a copy of this Order shall be served upon all parties by the
court via eCourts.
’
Chery eae Fy
Christine Farrington, J.S.C. red Va
BER-L-004752-21 02/23/2024 1:41:36 PM, Pg 23 of 99 Trans ID: LCV2024483469
Amended by the Court
DEUTSCH ATKINS & KLEINFELDT, P.C.
Fit D
JUN 9
4 Ap
Bruce L. Atkins, Attorney 1D: 021291977
Debra M. McGarvey, Attorney ID: 01802007
21 Main Street, Suite 352 Sting 4
Court Plaza South IS RRWNGToy
Hackensack, New Jersey 07601
Tele: (201) 498-0900
Fax: (201) 498-0909
Attorneys for Plaintiff, KimberlyA. Vele
UPERIOR COURT OF NEW JERSEY
KIMBERLY A. VELE, AW DIVISION: BERGEN COUNTY
Plaintiff, DOCKET NO.; BER-L-4752-21
CIVIL ACTION
Vv.
BOROUGH OF ENGLEWOOD CLIFFS; ORDER
LAURA BORCHERS, CUSTODIAN OF
RECORDS FOR THE BOROUGH OF
ENGLEWOOD CLIFFS, and JOHN AND
JANE DOES 1-10.
Defendants,
THIS MATTER, having been opened to the Court by Deutsch, Atkins, & Kleinfeldt,
P.C., attorneys for Plaintiff Kimberly A. Vele, by way of her Motion to Enforce Litigants Rights,
Compel Production of Certifications, for an In Camera Review of Claimed Privileged
Documents, and for attorneys’ fees and costs, and for other relief as deemed just and proper and
the Court having considered the papers submitted, and for good cause shown,
IT IS on this 24" day of June, 2022,
ORDERED THAT:
1 Plaintiff's Motion to Enforce Litigants Rights is hereby GRANTED.
BER-L-004752-21, 02/23/2024 1:41:36 PM, Pg 24 of 99, Trans ID; LCV2024483469
2. Plaintiff's Motion to Compel: Production of Certifications is GRANTED.
Defendants shall provide
Preview
BER-L-004752-21 02/23/2024 1:41:36 PM Pglof2 Trans ID: LCV2024483469 ATTORNEYS AT LAW ONE BLUE HILL PLAZA NEIL H. DEUTSCH, (RET.) 21 MAIN STREET, SUITE 352 P.O. Box 1647 Bruce L. ATKINS, AV@? COURT PLAZA SOUTH PEARL RIVER, NY 10965 ADAM J. KLEINFELDT! HACKENSACK, NEW JERSEY 07601 (845) 920-0200 Desra M. McGarvey! — TELEPHONE: (201) 498-0900 CARLY SKARBNIK MEREDITH! 260 MADISON AVE., 17™ FLOOR — FACSIMILE: (201) 498-0909 New York, New York 10016 JASON TODD MUSHNICK* WEBSITE: www.deutschatkins.com (800) 920-0200 DIANE ENGLANDER PEYSER WRITER'S DIRECT E-MAIL: jmushnick@DeutschAtkins.com RJ PRIFITERA Please respond to the Hackensack Office — OF COUNSEL ADMITTED IN NJ ADMITTED IN NJ & NY! Laura G. WEISS? ADMITTED IN NJ, NY & FL? February 23, 2024 ADMITTED IN NY? ADMITTED IN NJ, NY & NC* VIA E-FILING ONLY Hon. Christine A. Farrington, J.S.C. Superior Court of New Jersey Bergen County Courthouse 10 Main Street Hackensack, NJ 07601 Re: Kimberly Vele v. Borough of Englewood Cliffs, et al. Docket No. BER-L-004752-21 Letter Brief in Opposition to Motion for Stay Pending Appeal and Motion for Reconsideration Dear Judge Farrington: This office represents Kimberly Vele (“Ms. Vele” or “Plaintiff’) in the above-referenced matter. Enclosed with this correspondence are Exhibit C, accurate copies of the Orders dated September 9, 2021, January 12, 2022, January 20, 2022, June 24, 2022, August 4, 2022, October 31, 2022, April 4, 2023, September 19, 2023, October 24, 2023, November 17, 2023, December 1, 2023, and December 22, 2023, and February 2, 2024 and Exhibit D, a true and accurate copy of the Opposition and Cross-Motion Brief to Compel the Continued Videotaped Deposition of Defendant Kranjac filed on in the Duffy matter BER-L-3313-2, on February 8, 2024 and Exhibit I attached to that motion which is the accompanying transcript of the Deposition of Mario Kranjac. These exhibits were erroneously omitted from the filing last night. BER-L-004752-21 02/23/2024 1:41:36 PM Pg2of2 Trans ID: LCV2024483469 Hon. Christine A. Farrington, J.S.C. (ret’d) February 23, 2024 Page 2 Plaintiff includes Exhibit D only because non-Party Kranjac referenced certain portions of this deposition in his Motion papers. While it is not relevant to deciding these Motions, Plaintiff would like to provide the Court the opportunity to review the complete picture of Mr. Kranjac and his counsel Patrick Tobia, Esq.’s conduct during the deposition. We appreciate the Court’s time and attention to this matter. Respectfully submitted, /s/ Jason T. Mushnick JASON T. MUSHNICK cc: All counsel of record BER-L-004752-21 02/23/2024 1:41:36 PM Pg1of99 Trans ID: LCV2024483469 EXHIBIT C BER-L-004752-21 02/23/2024 1:41:36 PM, Pg 2 of 99_ Trans ID: L€V2024483469 FILED SEP 09 2021 PREPARED BY THE COURT KIMBERLY VELE, STINE A. FARRINGTON, SUPERIOR of URT HR OF S80V JERSEY LAW DIVISION BERGEN COUNTY Plaintiff, DOCKET NO. BER-L-4752-21 Vv. BOROUGH OF ENGLEWOOD CIVIL ACTION CLIFFS; LAURA BORCHERS, CUSTODIA OF RECORDS FOR THE BROOUGH OF ENGLEWOOD ORDER CLIFFS, and JOHN AND JANE DOES 1-10. Defendanis. THIS MATTER having come before the court by Plaintiff, Kimberly Vele, represented by Bruce L. Atkins, Esq., and Debra M. McGarvey, Esq. (Deutsch Atkins & Kleinfeldt, P.C.), by way of Order to Show Cause and Verified Complaint, and opposition having been filed by Defendants the Borough of Englewood Cliffs and Laura Borchers, represented by Eric M. Bernstein, Esq. and Dominic P. DiYanni, Esq. (Eric M. Bernstein and Associates, L.L.C.); and for the reasons set forth in the written rider attached hereto; and for other good cause shown; IT IS on this 9th day of September, 2021, ORDERED L The June 4, 2021 a. Defendants having produced the requested records pursuant to Request | since the inception of this litigation, the issue of production with respect to this request is hereby dismissed as moot. BER-L-004752-21 02/23/2024 1:41:36 PM Pg 3of99 Trans ID: LCV2024483469 b. Defendants improperly denied Request 3 under the overbroad exemption c. Defendants improperly withheld records for Request 4. d, Defendants improperly withheld the OEM stipends sought in Request 5 2. The June 10, 2021 a. Defendants improperly denied Requests 3, 4, 5, and 6 Plaintiff is a prevailing party under the OPRA statute and is accordingly entitled to an award of a reasonable attorney’s fee. The parties will endeavor to agree upon counsel fees. In the event the parties are unable to agree, the plaintiff shall submit the appropriate affidavit of services. Defendant shall file any objections thereto within 7 days of the uploading of plaintiff's affidavit to eCourts. 3. The court hereby provides a copy of this Order to all counsel of record on this date via eCourts Civil. Plaintiff shall serve a copy of this Order and Rider upon any parties not noticed electronically within three (3) days of the date of this Order. Opposed Of were Lie fr Christine Farrington, J.S.C., ret’d, t/a c BER-L-004752-21 02/23/2024 1:41:36 PM Pg4of99 Trans ID: LCV2024483469 KIMBERLY VELE V. BOROUGH OF ENGLEWOOD CLIFFS, ET AL. Docket No, BER-L-4752-2 RIDER TO ORDER DATED SEPTEMBER 9, 2021 BACKGROUND On May 20, 2021 and May 21, 2021, Plaintiff, a resident of the Borough of Westwood, New Jersey, made 39 separate requests for government records maintained by Defendants, Borough of Englewood Cliffs (“Borough” or “Defendant”). On June 1, 2021, Defendants replied via letter, denying all requests due to lack of specificity, vagueness, and ambiguity. On June 4, 2021, Plaintiff sent a letter to the Borough’s custodian of Records, Laura Borchers, “simplify[ing] the requests”. Plaintiff made 6 separate requests. At issue are requests 1, 3, and 5, which were denied by the Borough. The June 4" requests are as follows: Request No. 1 Copies of all RICE notices served upon Lisette Duffy, Borough Clerk for the Borough of Englewood Cliffs, spanning Ms. Duffy’s tenure of employment with the Borough, Defendants’ Response: Please see attached Rice notices that the Borough currently has and can retrieve. A further search is being conducted for any remaining responsive Rice notices and will be provided if obtained. Request No. 3 Copies of all Borough of Englewood Cliffs Resolutions regarding Borough Clerk, Lisette Duffy’s employment spanning Ms. Duffy’s tenure of employment with the Borough. Defendants’ Response: Please be advised that this request for emails is hereby denied by the Borough of Englewood Cliffs. The request is considered a vague and/or ambiguous request. Furthermore, the request is excessive in that it seeks records spanning over a period of fourteen (14) years. In addition, a search for “Lisette Duffy” would find that her name 3 BER-L-004752-21 02/23/2024 1:41:36 PM Pg5of99 Trans 83469 would be referenced and/or included on virtually all of the Resolutions passed by the Borough of Englewood Cliffs within that requested time frame. Additional clarification would have to be provided in order for the subject request to be considered a valid OPRA request. As such, your request, as currently constituted, is considered an invalid OPRA request at this time and is therefore denied. A proper request under OPRA must identify with reasonable clarity those documents that are desired and a party cannot satisfy this requirement by simply requesting “any and all” ofan agency’s documents. Bent v. Stafford Police Department, 381 N.J. Super. 30, 37 (App. Div. 2005). More importantly, custodians are not required to conduct research or create new records in response to an OPRA. request. See also MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Diy. 2005). This request clearly requires the Borough to conduct some research and/or compile information which is not the purpose and/or intent of OPRA. In addition, the request seeks voluminous information (seeking 14 years of resolutions concerning Lisette Duffy) and appears to be a fishing expedition for information for Ms. Duffy's current litigation with the Borough and which size and scope of said request is clearly not within the spirit and intent of the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. See also New Jersey Builders Ass'n v. New Jersey Council on Affordable Housing, 390 N.J. Super. 166, 178-179 (App. Div. 2007), Request No. 5 A copy of the April 20, 2021 email from Acting Borough Administrator, Carrol McMorrow to Borough Clerk, Lisette Duffy regarding OEM Stipends. Defendants’ Response: Please be advised that this request is denied as exempt from disclosure as same is considered a personnel record pursuant toN.J.S.A. 47:1A1.1 and N.J.S.A. 47:1A-10. On June 10, 2021, Plaintiff made a second set of 8 OPRA requests. At issue are requests 3, 4, 5, and 6, which were denied by the borough. The June 10" requests are as follows: Request No. 3 For the period from January 1, 2018 to June 10, 2021, all emails between Mayor Mario Kranjac (mkranjac@englewoodcliffsnj.org and/or mkranjac@ktpllp.com) and Carrol MeMorrow (cmemorrow@englewoodcliffsnj.org and/or cememorrow@aol.com) regarding Lisette Duffy. Request No. 4 For the period from January 1, 2018 to June 10, 2021, all emails between Mayor Mario Kranjac (mkranja¢@englewoodcliffsnj.org 4 BER-L-004752-21 02/23/2024 1:41:36 PM Pg 6o0f99 TransID V20. 83469 and/or mikranjac@ktpllp.com) and William Woo (wwoo@englewoodcliffsnj.org and/or wwoo88@gmail.com and/or wwoo7777@gmail.com) regarding Lisette Duffy, Request No. 5 For the period from January 1, 2018 to June 10, 2021, all emails between Carrol McMorrow (cmemorrow@englewoodcliffsnj.org and/or ememorrow@aol.com) and William Woo (wwoo@englewoodcliffsnj.org and/or wwoo88@gmail.com and/or wwoo7777@gmail.com) regarding Lisette Duffy. Request No. 6 For the period from January 1, 2018 to June 10, 2021, all emails between Mayor Mario Kranjac (mkranjac@englewoodcliffsnj.org and/or mkranjac@ktpllp.com) and William Woo (wwoo@englewoodcliffsnj.org and/or wwoo88@gmail.com and/or wwoo7777@ginail.com) regarding Lisette Duffy. [See Exhibit E to Verified Complaint]. In response to the June 10" requests, on June 22, 2021, Defendants denied Plaintiff's Request Nos. 3- 6 with one response as follows: Please be advised that this request for emails is hereby denied by the Borough of Englewood Cliffs. First, the request fails to identify specific government records (subject matter) and is considered a vague and/or ambiguous request. Furthermore, the request is excessive in that it seeks records spanning over a period of three and one half (3%) years. As such, your request, as currently constituted, is considered an invalid OPRA request at this time and is therefore denied. A proper request under OPRA must identify with reasonable clarity those documents that are desired and a party cannot satisfy this requirement by simply requesting “any and all” of an agency's documents. Bent v. Stafford Police Department, 381 N.J. Super. 30, 37 (App. Div. 2005). More importantly, custodians are not required to conduct research or create new records in response to an OPRA. request. See also MAG Entertainment, LLC y. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005). This request clearly requires the Borough to conduct some research and/or compile information which is not the purpose and/or intent of OPRA. In addition, the request seeks voluminous information (seeking 3 % years of emails concerning Lisette Duffy) and appears to be a fishing expedition for information for Ms. Duffy's current litigation with the Borough and which size and scope of said request is clearly not within the spirit and intent of the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. See also New Jersey Builders Ass'n v. New Jersey Council on Affordable Housing, 390 N.J. Super. 166, 178-179 (App. Div. 2007). BER-L-004752-21 02/23/2024 1:41:36 PM Pg7of99 Trans ID: LCV2024483469 On August 17, 2021, Defendant Borough filed an Answer and Opposition to Plaintiff's OTSC. Defendants assert that the June 4" and June 10 OPRA requests were satisfied because responsive documents were properly provided, denied and/or exempted pursuant to OPRA. Further, Defendants assert that Plaintiff withdrew her May 20, 2021 and May 21, 2021 requests, and therefore has no cause of action for either of those. Defendants also assert they are entitled to an award of prevailing party attorneys fees. APPLICABLE LAW QOPRA The purpose of OPRA (N.J.S.A. 47:1A-1 to 13) is plainly set forth in the statute: “to insure that government records, unless exempted, are readily accessible to citizens of New Jersey for the protection of the public interest.” Mason v. City of Hoboken, 196 N.J. 51, 57 (2008) (citing N.JS.A. 47:1A-1). The Act replaced the former Right to Know Law, N.J.S.A. 47:1A-1 to -4 (repealed 2002) and perpetuates “the State’s long-standing public policy favoring ready access to most public records.” Bent v. Twp. of Stafford Police Dep’t, 381 N.J. Super. 30, 36 (App. Div. 2005) (quoting Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 363 (App. Div. 2003). To accomplish that objective, OPRA establishes a comprehensive framework for access to public records. Mason, 196 N.J. at 57. Specifically, the statute requires, inter alia, prompt disclosure of records and provides different procedures to challenge a custodian’s decision denying access, Id. OPRA mandates “all government records shall be subject to public access unless exempt.” N.JS.A. 47:1A-1. Therefore, records must be covered by a specific exclusion to prevent disclosure. Id, The Act defines “government record” as follows: [A]ny paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, 6 BER-L-004752-21 02/23/2024 1:41:36 PM Pg 8of99 Trans ID: LCV2024483469 information stored or maintained electronically or by sound-recording or ina similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. NJS.A. 47:1A-1.1,] OPRA considers the following public employee information to be public information: .. an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received (N.LS.A. 47:1A-10.] In OPRA actions, the public agency bears the burden of proving the law authorizes the denial of access. N.J.S.A. 47:1A-6, As such, an agency “seeking to restrict the public’s right of access to government records must produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality.” Courier News v. Hunterdon Cty. Prosecutor’s Office, 358 N.J. Super, 373, 382-83 (App. Div. 2003). Absent the necessary proofs, “a citizen's right of access is unfettered.” Id. Additionally, in assessing the sufficiency of the proofs submitted by the agency in support of its claim for nondisclosure, “a court must be guided by the overarching public policy in favor of a citizen’s right of access.” Id. Thus, where access has been improperly denied under either OPRA or the common law right of access, such access shall be granted, and a prevailing party shall be entitled to a reasonable attorney’s fee. See N.J.S.A. 47:1A-6. See also Mason, 196 N.J. at 76 (holding that “OPRA requestors are entitled to attomeys’ fees even absent a judgment or enforceable consent decree, when they can demonstrate, under the catalyst theory, that: (1) a factual causal nexus between 7 BER-L-004752-21 02/23/2024 1:41:36 PM Pg9of99 Trans ID: LCV2024483469 plaintiffs litigation and the relief ultimately achieved; and (2) that the relief ultimately secured by plaintiffs had a basis in law.”) (internal citations & quotation marks omitted), and at 79 (“[W]e conclude that the catalyst theory applies to common lawsuits as well.”). Although OPRA defines “government record” broadly, the public’s right of access is not absolute. Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J. 274, 284 (2009) (citing Mason, 196 N.J. at 65), In particular, the Supreme Court has noted “records within the attorney-client privilege or any executive or legislative privilege, as well as items exempted from disclosure by any statute, legislative resolution, executive order, or court rule” are excluded. Mason, 196 N.J. at 65. OPRA governs “requests for records, not for information.” Burke v. Brandes, 429 N.J. Super. 169, 174 (App. Div. 2012) (quoting Bent, 381 N.J. Super. at 37). The custodian is obliged to “locate and redact [the requested] documents, isolate exempt documents, . . . identify requests that require ‘extraordinary expenditure of time and effort’ and warrant assessment of a ‘service charge,’ and, when unable to comply with a request, ‘indicate the specific basis’” thereof. Spectraserv. Inc. v. Middlesex Cty. Utilities Auth., 416 N.J. Super. 565, 576 (App. Div. 2010) (quoting N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J. Super. 166, 177 (App. Div.), certif. denied, 190 N.J. 394 (2007) (internal quotation marks omitted)), The basis for denying an overly broad request is premised upon the second sentence of N.JLS.A. 47:1A-5(g): “If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor.” N.JS.A. 47:1A-5(g). Overbreadth BER-L-004752-21 02/23/2024 1:41:36 PM Pg 10 o0f99 Trans ID: LCV2024483469 Courts have repeatedly held that a request may be denied where the scope of the request is overbroad, noting that “OPRA does not countenance ‘wholesale requests for general information or open-ended demands ‘for every document a public agency has on file.”” Ibid. (citing MAG Entm’t, LLC v, Div. of Alcoholic Beverage Ctrl, 375 N.J. Super. 534, 549 (App. Div. 2005) and Bent, 381 N.J. Super. at 37). In order to avoid such a denial, “a party requesting access to a public record [must] specifically describe the document sought, so that the records may be readily and reasonably identified within the short time frame within which government custodians must respond.” Ibid. Under this standard, a requestor must “identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting al of an agency’s documents.” Bent, 381 N.J. Super, at 36-37 (emphasis in original). “Wholesale requests for general information to be analyzed, collated, and compiled by the agency are outside OPRA’s scope.” Burke, 429 N.J. Super. at 174. In contrast, courts have determined requests for “particularized identifiable government records . . . rather than information generally” are permissible. Burke, 429 N.J. Super. at 176-77. Stated differently, the Appellate Division has found requests that identified a specific subject matter with sufficient identifying information were not overly broad even where a custodian was required to search and locate records according to a specific topic area. For instance, the Burnett Court found that a request for “any and all settlements, releases or similar documents entered into, approved or accepted from 1/1/2006 to present” was permissible under OPRA. Burnett v. Cty of Gloucester, 415 NJ. Super. 506, 508-09 (App. Div. 2010). “The fact that the plaintiff did not specify matters to which the settlements related ‘did not render his request a general request for information obtained through research, rather than a request for a specific record.’” Burke, 429 BER-L-004752-21 02/23/2024 1:41:36 PM Pg 1lof99 Trans ID: LCV2024483469 N.J. Super. at 176-77 (citing Burnett, 415 N.J. Super, at 508-09), The Appellate Division has also permitted an OPRA request which was confined to a specific subject matter that was clearly and reasonably described with sufficient identifying information, namely, E-Z Pass benefits provided to Port Authority retirees . . . [T]he request was limited to particularized identifiable government records, namely, correspondence with another government entity, rather than information generally. Burke, 429 N.J. Super. at 176-77.] In Burke, the permissible requests did not require a custodian to exercise discretion, survey employees or conduct research, rather, the responsive records “could have readily been identified, located, and produced from a routine search of files pertaining to a very narrowly specified topic.” Id. at 177. DECISION June 4" Requests Defendants properly responded to Request 1. It is reasonable to assume that 2021 RICE notices are more readily available than RICE notices from previous years. Further, Defendants did not refuse to provide the older RICE notices; instead, Defendants merely stated that they will continue the search for additional RICE notices and provide them if they are found. Defendants improperly denied Request 3 under the overbroad exemption. In Burnett, a request for any and all settlements or similar documents was considered a particularized identifiable government record. Burnett, 415 N.J. Super at 508-09; see Burke, 429 N.J. Super. at 176-77. Request 4 is more specific than the request in Burnett because it seeks records specific to Lisette Duffy’s employment with the Borough spanning her entire career. The topic is more particularized than in Burnett and the dates are comparably specific. Defendants’ excuse, that a 4 10 BER-L-004752-21 02/23/2024 1:41:36 PM Pg 12 o0f99 Trans ID: LCV2024483469 search of “Lisette Duffy” renders many unrelated resolutions, is not a recognized exemption. Therefore, Defendants improperly withheld records for Request 4. Defendants improperly withheld the OEM stipends sought in Request 5 because these stipends are not protected employee records. See N.J.S.A. 47:1A-10. OPRA states that an employee’s name and salary, among other things, are accessible government records. N.J.S.A. 47:1A-10. It is only logical that OEM stipends are similar in nature to salary information. Further, Request 5 is narrowly tailored to a single OEM stipend issued on April 20, 2021. Therefore, Defendants should have disclosed the requested information on OEM stipends issued to Lisette Duffy. June 10" Requests Defendants improperly denied Requests 3, 4, 5, and 6 as vague and excessive. Plaintiff's tequests were particularized because they sought emails between specific people regarding Lisette Duffy. The requests were also limited in time from January 1, 2018 to June 10, 2021, These requests are more particularized than those in Burnett. Therefore, the Defendants improperly denied these requests based on vagueness. Further, these requests are not voluminous because they are seeking email exchanges regarding Lisette Duffy. The requests are not. seeking all email exchanges between the Borough officials. Defendants should have disclosed the information requested in Requests 3, 4, 5, and 6. Attorneys Fees Defendants argue that even if plaintiff is the prevailing party, she is not entitled to counsel fees citing an unreported case which, in turn cites reported cases, including Courier News v. Hunterdon Cty. Prosecutor’s Office, 3378 N.J. Super. 539, (App. Div. 2005). The crux of 11 BER-L-004752-21 02/23/2024 1:41:36 PM Pg 13o0f99 Trans ID: LCV2024483469 defendants’ argument is N.J.S.A. 47:1A-6 which makes reasonable counsel fees mandatory to the prevailing party does not apply to attorneys representing themselves. In support of this argument, they posit that the OPRA requests were made by a paralegal in plaintiff's attorney’s law office. The underlying lawsuit is entitled in plaintiff Kimberly Vele’s name. The attorney was not representing himself/herself. The fact that the OPRA request was made by her attorney or a paraprofessional in that office does not work to deny counsel fees to plaintiff as a prevailing party. The parties are ordered to confer and attempt to agree on the quantum of reasonable counsel fees. In the event they are unable to do so, plaintiff shall submit the appropriate affidavit of services pursuant to RPC 1.5. 12 BER-L-004752-21 02/23/2024 1:41:36 PM P 14 of 99 Trans ID: LCV2024483469 ER L 004752-21 01/12/2022 9 1 of 7 Trans ID: LCV2022132504 FILED Amended by the Court JAN 42 2022 DEUTSCH ATKINS & KLEINFELDT, P.C. CHRISTINE FARRINGTON, Bruce L. Atkins, Attorney ID: 021291977 Debra M. McGarvey, Attorney ID: 01802007 21 Main Street, Suite 352 Court Plaza South Hackensack, New Jersey 07601 Tele: (201) 498-0900 Fax: (201) 498-0909 Attorneys for Plaintiff, KimberlyA. Vele } SUPERIOR COURT OF NEW JERSEY KIMBERLY A. VELE, i LAW DIVISION: BERGEN COUNTY DOCKET NO.: BER-L-4752-21 Plaintiff, CIVIL ACTION ¥. BOROUGH OF ENGLEWOOD CLIFFS; ORDER LAURA BORCHERS, CUSTODIAN OF RECORDS FOR THE BOROUGH OF ENGLEWOOD CLIFFS, and JOHN AND JANE DOES 1-10. Defendants, THIS MATTER, having been opened to the Court by Deutsch, Atkins, & Kleinfeldt, P.C., attorneys for Plaintiff Kimberly A. Vele, by way of her Motion to Enforce Litigants Rights, and the Court having considered the papers submitted, and for good cause shown, IT IS on this 12" day of January, 2022, ORDERED that Plaintiff's Motion to Enforce Litigant's Rights and Hold Defendants in Contempt of Court is hereby GRANTED; ORDERED that Defendants will respond in full and produce the documents responsive to the Court’s September 9, 2021 Order within ten (10) days of this Order; BER-L-004752-21 02/23/2024 1:41:36 PM P 15 of 99 Trans ID: LCV2024483469 ER L 004 /52-21 01/12/2022 'g 2 of 7 Trans ID: {CV2022132504 ORDERED that Defendants shall pay to Plaintiff's Counsel reasonable attorneys’ fees incurred in connection fo this motion. Counsel will confer and attempt to agree on the amount of fees. ORDERED that should the requested documents not be furnished within ten (10) days of this Order, ordering financial sanctions of $250 for every day Defendants fail to produce the documents commencing January 18, 2022; and it is FURTHER ORDERED that a copy of this Order shall be served upon all parties by the court via eCourts. Opposed BER-L-' 004752. 21 02/23/2024 1:41:36 PM P 16 of99 Trans ID: LCV2024483469 UUs IL-21 UII aZ0Ze g 3 or / trans ID: LCV2022132504 KIMBERLY A. VELE v. BOROUGH OF ENGLEWOOD CLIFFS, LAURA BORCHERS, Custodian of Records for the Borough of Englewood Cliffs, and JOHN AND JANE DOES 1-10. lo. BI “21 RIDER TO ORDER ENFORCING LITIGANT’S RIGHTS DATED January 12, 2022 Facts and Procedural History This matter comes before the court on Plaintiffs motion to enforce litigant’s rights and hold Defendants in Contempt of Court for failure to comply with the Court’s Order of September 9, 2021. Further, this matter comes before the court on Defendants’ motion for attorneys’ fees and costs for legal services rendered pursuant to the Court’s Order of September 9, 2021. In that Order, this court ruled that (1) Defendants improperly denied Plaintiff's June 4, 2021 requests for copies of all Borough of Englewood Cliffs settlements regarding Borough Clerk, Lisette Duffy’ employment spanning her tenure of employment with the Borough and OEM stipends that were sought, (2) Defendants improperly denied Plaintiff of June 10, 2021 records requests regarding emails between Borough of Englewood Cliffs officials, and (3) Plaintiff was entitled to attorneys fees as a prevailing party. The Order stipulated the parties would endeavorto agree upon counsel fees. On October 20, 2021, Plaintiff filed a motion to enforce litigant’s rights and for attorneys fees as ordered by the court. Plaintiff's certification in support of the motion argues that (1) Defendantto that date had not complied with the Court’s Order from September 9, 2021 to produce responsive records, (2) Plaintiff is entitled to fees and to date, the parties had not come to an agreement on reasonable counsel fees, and (3) Plaintiff is entitled to fees an costs associated with the filing of this motion. BER-L-004752-21 02/23/2024 1:41:36 PM P 17 of 99 Trans ID: LCV2024483469 KL UU4/52-21 UVi2iZ2uZz2 ‘9 4 of / Trans 1D; LCV2022132504 On October 27, 2021, Defendants filed an adjournment request, which was granted by this court. The motion was therefore rescheduled to be heard on December 8, 2021. On November 23, 2021, Plaintiff filed a subsequent adjournment request, which was also granted by this court. The motion was ultimately rescheduled to be heard on January 7, 2022. On January 3, 2022, this court learned from correspondence submitted by the Plaintiff that the parties agreed upon an amount for attorneys” fees on or around November 17, 2021. While the fees were agreed upon, Plaintiffs asserted that the fees have yet to be paid. Further, Plaintiff asserted that, while some of the responsive documents have been produced, many documents compelled for production by. the Court Order of September 9, 2021, have yet to be produced. On that same date, Defendants submitted correspondence request a third adjournment of this motion. In that same correspondence, Defendants confirmed the attomeys’ fees were agreed upon, and that payment has not been made due to “delays related to COVID and other.problems [that] have plagued Borough Hall in many ways.” The attorneys’ fees agreement was approved by the Borough Council at a meeting on December 8, 2021, and Defendants insist it takes approximately thirty (30) days to process the payment. Despite the request for an adjournment, this Court decided to hear the Motion to Enforce Litigants’ Rights as scheduled on January 7, 2022. We Rule 1:10-3 provides relief where the party against whom the motion is made has failed to do something ordered by the Court for the benefit of the opposing party. Courts have ruled that “{t]he power of the Court to enforce an order has neither been put in question . . . nor is it questionable.” Board of Educ.. Tp. of Middletown v. Middletown Tp. Educ. Ass'n, 352 N.J. Super. 501, 508 (Ch, Div. 2001). The relief sought through a motion underR. 1:10-3 to enforce a Court order is essentially coercive. D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990). Thus, orders 2 BER-L-' 004752. 21 02/23/2024 1:41:36 PM P. 18 of99 Trans ID: LCV2024483469 U4 (92-21 01/12/2022 9 5 of 7 Trans ID: LCV2022132504 entered pursuant to R. 1:10-3 motions are “coercive measures by a Court to force compliance by a recalcitrant party, Anyanwuy. Anyanwu, 339 N.J. Super. 278, 290 (App. Div. 2001). When enforcing a Court order, Courts have ruled that “[t]he particular manner in which compliance may be sought is left to the Court's sound discretion.” Board of Educ.. Tp. of Middletown, supra, 352 N.J. Super. at 509, Courts have also ruled that “[a] monetary sanction imposed pursuant to R. 1:10-[3] and unrelated to a litigant's damages is an entirely proper tool to compel compliance with a Court order.” Franklin Tp. Bd. of Educ. v. Quakertown Educ. Ass’ 274 N.J. Super. 47, 55 (App. Div. 1994); se Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997) (“[w]e do not dispute the view that a monetary sanction imposed pursuant to R. 1:10-3 is a proper tool to compel compliance witha Court order.”). However, such a sanction “must not be so excessive as to constitute ruinous punishment." Franklin Tp. Bd. of Educ., supra, 274 NJ. Super, at 56. Instead, the particular method of relief given “ought to be carefully tailored and sometimes issued in a particular sequence--from least to most drastic.” Board of Educ., Tp. of- Middletown, supra, 352 N.J. Super. at 509. Courts should hesitate before ordering the most severe sanctions, because the goal of sanctions underR. 1:10-3 “is compliance and nothing but compliance.” Ibid. In addition, the Court must consider “the offending party's ability to pay and the sanction's impact on that party in light of its income, status and objectives, as well as the sanction's impact on innocent third parties.” Franklin Tp. Bd. of Educ., supra, 274 N.J. Super.at 56 (citing East Brunswick Bd. of Educ. v. East Brunswick Educ. Ass'n, 235 N.J. Super. 417 (App. Div. 1989)). Thus, when ordering a monetary sanction pursuant to R. 1:10-3, the Court must fashion relief that compels the party to comply, without punishing the party. In addition to a monetary sanction to compel compliance, R, 1:10-3 also states that “[t]he Court in its discretion may make an allowance for counsel fees to be paid by any party to the action BER-L-004752-21 02/23/2024 1:41:36 PM P 19 of 99 Trans ID: LCV2024483469 L 0U4/92-21 01/12/2022 'g 6 of 7 Trans ID: LCV2022132504 to a party accorded relief under this rule.” However, an award of counsel fees under this rule is Jersey City only available to a party that has obtained relief. See Redeve lopmen Clean- Agency v. t O-Mat Corp., 289 N.J. Super. 381 (App. Div. 1996). Thus, if a party prevails in its motion to enforce litigant’s rights; a Court may use its discretion to award counsel fees expended in conjunction with filing the motion. Analysis Since both parties have agreed upon counsel fees, this court does not need to decide on that issue. Therefore, the court must determine whether Defendants are in contempt of court for failing to produce the responsive documents under the Court Order of September 9, 2021. Since the Court Order of September 9, 2021, while Defendants have produced a portion of the responsive documents, many documents remain outstanding. Specifically, Defendants have failed to respond in full and produce the electronic communications for the years 2018, 2019 and 2020 responsive to Plaintiff's June 4, 2021 and June 10, 2021 OPRA requests. The court has the authority underR. 1:10-3 to provide relief where the party against whom the motion is made has failed to do something ordered by the Court for the benefit of the opposing party. Further, the court has the authority to use coercive measures to force a recalcitrant party to comply to a previous court order. Here, Defendants have failed to comply with this Court’s Order of September 9, 2021 by failing to produce the responsive documents to Plaintiff's June 4, 2021 and June 10, 2021 OPRA requests. Therefore, they are subject to sanctions by this court if they cannot comply with its previous Order to produce all responsive documents to Plaintiff. When determining sanctions, such a sanction may “notbe so excessive as to constitute ruinous punishment.” Franklin Tp. Bd. of Educ., supra, 274 N.J. Super. at 509. The goal of BER-L-004752-21 02/23/2024 1:41:36 PM P 20 of 99 Trans ID: LCV2024483469 ER L 004752-21 01/12/2022 9 7 of 7 Trans ID: LCV2022132504 sanctions is merely for party to comply, and the court must consider the “offending party’s ability to pay and the sanction’s impact on that party in light of its income, status and objectives, as well as the sanction’s impact on innocent third parties.” Ibid. (citing East Brunswick Bd. of Edue, y. East Brunswick Educ, Ass’n, 235 N.J. Suver. 417 (App. Div. 1989).). In consideration of these factors, this court will impose a monetary sanction pursuant to R. 1:10-3 that will compel the Defendants to comply without punishing the party, Despite adjournments of this Motion for over two months, the responsive documents still have not been produced in toto. Further, Defendants have failed to produce a single document to the Plaintiff since December 8, 2021, the previous scheduled return date, Defendants’ failure to produce a single responsive document since the most recent adjournment indicates a likelihood that they do not intend to comply with this Court’s Order entered on September 9, 2021. Fot the foregoing reasons, this court finds the Defendants in violation of litigants’ rights. The court orders Defendants to produce all responsive documents from Plaintiff's June 4, 2021 and June 10, 2021 OPRA requests within ten (10) days of this Order. This court also orders that Defendants shall pay to Plaintiffs Counsel reasonable attorneys’ fees and costs incurred in connection to this motion. Counsel will confer and attempt to agree on the amount of fees. If the responsive documents are not produced within ten (10) days of this Order, this court will then impose financial sanctions of $250 for every day Defendants fail to produce the documents commencing January 18, 2022. CHRISTINE A. FARRINGTON, J.8.C. Christine Farrington, J.S.C., ret’d, t/a Opposed BER-L-004752-21 02/23/2024 1:41:36 PM Pg 21 0f99 Trans ID: LCV2024483469 wt a S Amended by the Court FILED DEUTSCH ATKINS & KLEINFELDT, P.C. JAN 20 2022 Bruce L. Atkins, Attorney ID: 021291977 Debra M. McGarvey, Attorney ID: 01802007 CHRISTINEA FARRINGTON, 21 Main Street, Suite 352 Court Plaza South Hackensack, New Jersey 07601 Tele: (201) 498-0900 Fax: (201) 498-0909 Attorneys for Plaintiff, Kimberly A. Vele i SUPERIOR COURT OF NEW JERSEY KIMBERLY A. VELE, i LAW DIVISION: BERGEN COUNTY i Plaintiff, DOCKET NO.: BER-L-4752-21 CIVIL ACTION AMENDED BOROUGH OF ENGLEWOOD CLIFFS; ORDER LAURA BORCHERS, CUSTODIAN OF RECORDS FOR THE BOROUGH OF ENGLEWOOD CLIFFS, and JOHN AND JANE DOES 1-10. Defendants. THIS MATTER, having been opened to the Court by Deutsch, Atkins, & Kleinfeldt, P.C,, attorneys for Plaintiff Kimberly A. Vele, by way of her Motion to Enforce Litigants Rights, and the Court having considered the papers submitted, and for good cause shown, IT IS on this 20" day of January, 2022, ORDERED, the order of the court filed January 12, 2022 is amended as follows: ORDERED that Plaintiffs Motion to Enforce Litigant's Rights and Hold Defendants in Contempt of Court is hereby GRANTED; ORDERED that Defendants will respond in full and produce the documents responsive to BER-L-004752-21 02/23/2024 1:41:36 20 PM Pg 22 0f99_ Trans ID: LCV2024483469 the Court’s September 9, 2021 Order within ten (10) days of January 12, 2022; ORDERED that Defendants shall pay to Plaintiff's Counsel reasonable attorneys’ fees incurred in connection to this motion. Counsel will confer and attempt to agree on the amount of fees. ORDERED that should the requested documents not be furnished on or before January 22, 2022, defendant shall pay sanctions of $250 per diem for each day Defendants fail to produce the documents commencing January 23, 2022; and it is FURTHER ORDERED that a copy of this Order shall be served upon all parties by the court via eCourts. ’ Chery eae Fy Christine Farrington, J.S.C. red Va BER-L-004752-21 02/23/2024 1:41:36 PM, Pg 23 of 99 Trans ID: LCV2024483469 Amended by the Court DEUTSCH ATKINS & KLEINFELDT, P.C. Fit D JUN 9 4 Ap Bruce L. Atkins, Attorney 1D: 021291977 Debra M. McGarvey, Attorney ID: 01802007 21 Main Street, Suite 352 Sting 4 Court Plaza South IS RRWNGToy Hackensack, New Jersey 07601 Tele: (201) 498-0900 Fax: (201) 498-0909 Attorneys for Plaintiff, KimberlyA. Vele UPERIOR COURT OF NEW JERSEY KIMBERLY A. VELE, AW DIVISION: BERGEN COUNTY Plaintiff, DOCKET NO.; BER-L-4752-21 CIVIL ACTION Vv. BOROUGH OF ENGLEWOOD CLIFFS; ORDER LAURA BORCHERS, CUSTODIAN OF RECORDS FOR THE BOROUGH OF ENGLEWOOD CLIFFS, and JOHN AND JANE DOES 1-10. Defendants, THIS MATTER, having been opened to the Court by Deutsch, Atkins, & Kleinfeldt, P.C., attorneys for Plaintiff Kimberly A. Vele, by way of her Motion to Enforce Litigants Rights, Compel Production of Certifications, for an In Camera Review of Claimed Privileged Documents, and for attorneys’ fees and costs, and for other relief as deemed just and proper and the Court having considered the papers submitted, and for good cause shown, IT IS on this 24" day of June, 2022, ORDERED THAT: 1 Plaintiff's Motion to Enforce Litigants Rights is hereby GRANTED. BER-L-004752-21, 02/23/2024 1:41:36 PM, Pg 24 of 99, Trans ID; LCV2024483469 2. Plaintiff's Motion to Compel: Production of Certifications is GRANTED. Defendants shall provide