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When Failures in the Pre-Trial Discovery Process Can — and Cannot — Lead to a Dismissal of a New Jersey Discrimination or Harassment Case

Many ingredients go into a successful discrimination, harassment, or retaliation case. One of these is having a capable New Jersey employment lawyer who can keep your case on track and moving toward a successful resolution at a timely pace, even when the case, or perhaps even “real life” from outside the case, throws a curveball.

This is so important because allowing such “curveballs” to cause you to miss deadlines or violate rules of procedure can trigger some severe penalties, up to and including dismissal of your case.

S.P. was an example of an employee whose harassment and retaliation case almost got tossed because of problems with pre-trial discovery. S.P., who was a deputy registrar working for a city in North Jersey and also the vice president of the city employees’ “collective negotiations” unit, was fired in 2016 after 15 years of working for the city.

According to the employee, the reasons for that termination were two-fold. One related to the work S.P. had done representing her colleagues in the negotiations unit, and the other related to a federal sexual harassment lawsuit she’d filed in 2014. In fact, the city’s mayor allegedly offered to settle the registrar’s federal lawsuit for $150,000 if she would (1) drop the federal case and (2) “commit” herself to the mayor romantically.

In her state court action, S.P. was 10 days late in submitting responses to the interrogatories and document demands the city sent her. Her discovery demands for the production of written responses and documents from the city also were late. In fact, her demands came on September 25, more than a month after the deadline.

Even after that, problems with the completion of pre-trial discovery persisted, partly fueled by an attorney for S.P. who was sidetracked by having been in a vehicle accident and having been “busy with other matters.” Eventually, the trial judge threw out S.P.’s lawsuit because the registrar failed to meet her discovery obligations. The judge said that the items S.P. provided were “untimely and piecemeal, at best.”

Dismissals based on discovery shortcomings should be awarded ‘only sparingly’

The Appellate Division overturned that ruling and revived S.P.’s case. Even in cases where a party has failed to meet discovery obligations or discovery deadlines, the severest of all penalties (dismissal with no permission to re-file) is something trial courts should use “only sparingly.” If there is a way to rectify the harm that the compliant party has suffered without throwing out the case, then dismissal is not a proper outcome and dismissal is an abuse of the trial judge’s discretion.

Additionally, if your opposing party seeks to get your case tossed based on discovery failures, they have to state a specific rule of court as the basis for that dismissal. The rule that the other side chooses may also allow you to get your dismissal reversed.

In S.P.’s case, the city sought dismissal under Rule 4:23-2(b)(3). Under that rule, the only way you can have your case dismissed is if you failed “to comply with a court order.” The problem for the defense in S.P.’s case was that the trial judge did not throw out S.P.’s case solely because she didn’t comply with a court order. The dismissal was partly fueled by the registrar’s earlier failures to turn over things like “her phone, texts, and iMessage logs. Indeed, the court weighed heavily the alleged failure to provide those items, finding they went to the essence of the plaintiff’s case—her claim she was sexually harassed via text message by” the mayor.

As the appeals court noted, however, the problem was that there was no proof of any order from the trial court demanding that S.P. produce any of those items. Without an order like that, Rule 4:23-2(b)(3) did not apply, and the city was not entitled to a dismissal on that basis. That meant S.P. was entitled to renew pursuing her case.

S.P.’s appellate counsel was able to use their detailed knowledge of the rules and the facts to get the case revived. Certainly, though, one way to give your case the best chance for success is to avoid putting yourself in the precarious position S.P. found herself concerning discovery compliance.

When you need to take action because of the harassment you’ve suffered at work, rely on the knowledgeable New Jersey sexual harassment attorneys at Phillips & Associates to be your trusted partner and to provide you with the finest in diligent, powerful, and effective pre-trial and trial representation. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation and find out how you can put the power of this office to work for you.

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