Murphy v. Twp. of Millstone, N.J.

• Decision Date: 13 June 2022
• Docket Number: Civil Action 20-10397 (GC)
• Parties: MURPHY et al, Plaintiff, v. TOWNSHIP OF MILLSTONE, NEW JERSEY et al, Defendant.
• Court: U.S. District Court — District of New Jersey

MURPHY et al, Plaintiff,
v.
TOWNSHIP OF MILLSTONE, NEW JERSEY et al, Defendant.

Civil Action No. 20-10397 (GC)

United States District Court, D. New Jersey

June 13, 2022

NOT FOR PUBLICAITON

MEMORANDUM OPINION

HONORABLE TONIANNE J. BONGIOVANNI UNITED STATES MAGISTRATE JUDGE

Currently pending before the Court are three related motions. (Docket Entry Nos. 26, 32, and 40.) On February 2, 2022, OnSite Landscape Management, EEM, LLC and Dan Murphy (“Plaintiffs”) filed a Motion to Amend/Correct the Complaint. (Docket Entry No. 26.) Defendant, Township of Millstone (“Millstone”), filed a Cross Motion to Strike and for Disqualification of Plaintiffs' Counsel on March 7, 2022. (Docket Entry No. 32.) Millstone filed a second motion, a Motion to Seal, on April 7, 2022. (Docket Entry No. 40.) The Court has fully reviewed and considered all arguments for and against each motion pending before the Court. The Court considers the motions without oral argument pursuant to L.Civ.R. 78.1(b).

I. Background and Procedural History

The Court presumes a familiarity with the nature and history of this litigation. As a result, not all factual details leading to the filing of this case are recited herein. Instead, the Court focuses on the facts most relevant to the pending motions.

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Plaintiffs commenced this action on August 12, 2020. (Docket Entry No. 1.) Service of initial written discovery was to be completed by November 20, 2020. (Docket Entry No. 7.) Each party was to submit answers to initial written discovery by January 20, 2021. (Id.) Fact discovery was to be completed no later than May 20, 2021. (Id.) Plaintiffs served Defendants with Plaintiffs' discovery requests on either October 26, 2020 (Docket Entry No. 26), or October 29, 2020 (Docket Entry No. 10). Millstone produced their discovery requests on November 12, 2020. (Docket Entry No. 26.) During a Telephone Conference with the Court on January 20, 2021, the Court extended the deadline to produce discovery to February 19, 2021. (See Text Minute Entry of 01/20/2021.) Plaintiffs responded to Millstone's discovery requests on February 8, 2021. (Id.)

On March 3, 2021, Plaintiffs' counsel filed a letter with the Court concerning Defendants' failure to respond to Plaintiffs' discovery requests. (Docket Entry No. 10.) Counsel for named Defendant, Dan Specht, Millstone's Code Enforcement Officer, responded to Plaintiffs' March 3, 2021, letter, on March 5, 2021, on behalf of all Defense counsel. (Docket Entry No. 12.) Mr. Specht's counsel, John T. Bazzurro, indicated that Defendants were working in unison concerning the provision of discovery. (Id.) Mr. Bazzurro provided that Defendants would submit “fully responsive answers and fully responsive documentation on or before the close of business on Wednesday, March 10, 2021.” (Id.) Further, Mr. Bazzurro shared with the Court that “diligent searches” were performed by Defendants, “which took longer than expected, ” and yielded approximately 6 GB of documents and files, ” which were delivered to his office. (Id.) Consequently, the documents needed to be reviewed and responses finalized in conjunction with the documents, and, as a result, discovery was “unfortunately, delayed.” (Id.) On March 10, 2021, Mr. Specht responded to Plaintiffs' discovery requests. (Docket Entry No. 26.)

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On May 10, 2021, Millstone's counsel, John Bonello, submitted a written status update as to the production of Millstone's discovery responses and indicated that Millstone hired an “IT person” to search its servers for the specific search terms Plaintiffs requested. Mr. Bonello advised the Court that the search was a lengthy process and shared that he was “not in a position to advise the Court when [the] process [would] be complete.” (Id.) The Court instructed Defendants to produce outstanding discovery “as swiftly as possible.” (Docket Entry No. 14.)

On June 15, 2021, Millstone produced its Interrogatory responses to Plaintiffs. (Docket Entry No. 26.) Millstone did not produce document responses. (Id.) The Court met with the parties on June 16, 2021 and directed Plaintiffs and Millstone to meet and confer with Millstone's IT vendor regarding the production of electronic discovery. (See Text Minute Entry of 06/16/2021.) On August 17, 2021, the Court granted Millstone's request for 90 days to produce responsive discovery in the form of electronically store information (“ESI”), Ordering Millstone to produce all discovery by October 15, 2021. (Docket Entry No. 17.)

In a joint letter to the Court, on September 20, 2021, Plaintiffs indicated that on “September 8, 2018 [sic]” Defendants submitted 116 pages of documents. (Docket Entry No. 20.) In the letter, Millstone advised the Court that Millstone's “IT person” placed “everything” on an external hard drive and Millstone was “going through the hard drive to determine [the] existence of any and all privileged documents and/or information before turning same over to the Plaintiff.” (Id.)

On September 23, 2021, Plaintiffs deposed Pamela D'Andrea. (Docket Entry No. 26.) Ms. D'Andrea was allegedly the Land Use Administrator during the relevant time period and oversaw the Planning Board and Boards of Adjustment. (Id.) Ms. D'Andrea's deposition was held remotely via Zoom. (Id.) Roshan D. Shah and Erin Donegan made their appearances as counsel on behalf of Plaintiffs. (Id.) Michael B. Shaw made his appearance as counsel on behalf of

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Defendant, Mr. Specht. (Id.) John T. Bonello made his appearance as counsel on behalf of Defendant, Millstone. (Id.) During Ms. D'Andrea's deposition, Exhibit D'Andrea - 20 was introduced by Plaintiffs' counsel. (Id.) Exhibit D'Andrea - 20, is an email from October 30, 2019, from Duane O. Davison, Esq., to Mr. Specht and Roger Staib, copying, Robert F. Munoz, Matt Shafai, and “Nick.” (Id.) Mr. Davison is an attorney at Davison, Eastman, Munoz, Paone, P.A., and serves as Millstone's counsel. The email's subject line is: “RE: On-Site / Dan Murphy - 204 Sweetmans Lane - CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE.” (Id.) Additionally, the email body commences with the following bold statement: “CONFIDENTIAL -ATTORNEY/CLIENT PRIVILEGE.” (Id.) No objections were raised to Plaintiffs' introduction of Exhibit D'Andrea - 20 during Ms. D'Andrea's deposition. (Docket Entry Nos. 22, 27, and 38.)

On October 26, 2021, Millstone produced ESI in response to Plaintiffs' document requests. (Docket Entry No. 26.) Among the ESI, Plaintiffs received duplicates of documents that were produced by Mr. Specht, including “several e-mails” from Mr. Davison to numerous individuals including Mr. Specht. (Docket Entry Nos. 26 and 27.) On October 12, 2021, the Court held a Telephone Conference with the parties. (See Text Minute Entry of 10/12/2021.) The Court instructed the parties that no depositions were to be conducted unless all parties agreed to proceed or by order of the Court. (Id.)

On December 16, 2021, the parties submitted a joint status update. (Docket Entry No. 22.) Plaintiffs raised an issue concerning Millstone's privilege log and informed the Court that Millstone and Mr. Specht “produced certain documents that would traditionally fall under the attorney-client privilege/work product doctrine.” (Id.) Plaintiffs expressed that “[s]ome of [the] documents have been utilized at deposition without objection, ” and as a result, it was Plaintiffs'

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position that privilege was waived. (Id.) Plaintiffs attached Exhibit B to serve as an example of the aforementioned discovery produced by Defendants. (Id.) Exhibit B contained a label with the following: “Exhibit D'Andrea-20, ” seemingly, from its use in Ms. D'Andrea's deposition. (Id.) Plaintiffs concluded their portion of the letter with a request for leave to file a motion to amend the Complaint and to add the following current and former Millstone employees: Kevin Abernethy, Nancy Grbelja, Pamela D'Andrea, Robin Bucci, Estate of Roger Staib, and Matt Shafai. (Id.)

In the December 16, 2021, joint status update, in response to Plaintiffs' concerns regarding the privilege log, Defendants indicated that it took “an exorbitant amount of time to go through 28, 000 plus pages of documents and emails that the IT server provided on an external hard drive. Of those 28, 000 plus pages, [Defendants] withheld only those items as set forth” in the privilege log attached as Exhibit A. (Id.) Defendants explained to the Court that between the over 3, 000 documents provided by Mr. Specht and the thousands of documents provided by the ESI produced by Millstone, Plaintiffs' counsel was in possession of “anything and everything available.” (Id.) Lastly, Defendants did not consent to Plaintiff's request to amend the Complaint. (Id.) Defendants did not respond to Plaintiffs' position regarding Exhibit B. (Id.) On January 11, 2022, the Court granted Plaintiffs' request for Leave to File a Motion to Amend. (Docket Entry No. 23.)

Plaintiffs filed the Motion for Leave to File the First Amended Complaint on February 2, 2022 (“Motion to Amend”). (Docket Entry No. 26.) Mr. Shah attached Exhibits D and E to his Certification for the Motion to Amend. (Id.) Exhibit D is a copy of the email previously marked as D'Andrea - 20. (Id.) Exhibit E is another email from Mr. Davison to Mr. Specht, copying Mr. Abernethy, Mr. Shafai, and Mr. Munoz, which contains the following subject line: “RE: Onsite Landscape Management CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE” and the body

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of the email begins with the following bolded note: “CONFIDENTIAL -ATTORNEY/CLIENT PRIVILEGE.” (Id.)

II. Analysis

A. Plaintiffs' Motion for Leave to File the First Amended Complaint Pursuant to Federal Rule of Civil Procedure 15.

Through Plaintiffs' Motion to Amend, Plaintiffs intend to amend their Complaint to add seven current and former Millstone employees to the matter: Kevin Abernethy, who was allegedly the Business Administrator during the relevant...