Judge declines to quash deposition subpoenas in Bayonne “sexting” lawsuit

While one subpoena was quashed, other city officials will have to give depositions relevant to the suit

Bayonne Mayor James Davis and other city officials must still give depositions as part of an ongoing “sexting” lawsuit filed against him, the city, and others, by a former city employee, a judge has ruled.

The suit was filed by former deputy register Stacie Percella in 2018, who alleges that Davis engaged her in allegedly “sexting” text message conversations. While Percella recently announced she was running for the Third Ward City Council seat, she did not file to run and will not appear on the ballot on May 10.

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The suit also alleges that Percella was fired in retaliation for filing a federal lawsuit against the city in 2014. That lawsuit alleged hostile environment discrimination, due to Percella’s actions as a vice president of the local civil service employee’s union, and because she rebuffed Davis’s alleged sexual overtures.

All claims in the 2014 federal lawsuit, except for the hostile work environment claim, were dismissed, but both sides have filed appeals. Additionally, the lawsuit in Hudson County also claims Davis allegedly offered her a $150,000 settlement in the federal suit in exchange for a sexual relationship.

Percella was employed at City Hall from 2001 until she was terminated in 2016. She alleged the “sexting” took place between 2013 and 2015. She first made allegations against Davis during the public comment portion of a city council meeting in May of 2017.

The lawsuit was dismissed in Hudson County Superior Court in February of 2020 by Judge Kimberly Espinales-Maloney. However, it was brought back to life last year by a state appellate court. The Superior Court of New Jersey Appellate Division reinstated the suit in May of 2021.

Officials can still be deposed

Hudson County Superior Court Judge Joseph Turula ruled on Dec. 17 that Davis along with a number of other officials should be scheduled to be deposed in the matter including attorney Allan Roth, Hearing Officer Ellen Horn, former Special Redevelopment Counsel Joseph DeMarco, Assistant City Attorney Donna Russo, Human Resources Director Deborah Falciani, Director of Municipal Services Gary Chmielewski, Bernadette Nestico, and Third Ward City Councilman Gary La Pelusa.

Following Turula’s ruling, in February attorneys for the city not only sought to have the subpoenas of Roth and Horn quashed, but also that of La Pelusa, arguing that it is not relevant to the matter. The attorneys also sought the other subpoenas against the aforementioned officials be quashed as well or a protective order put in place to limit questioning during deposition.

While attorneys for the city sought to quash the subpoenas, only part of their order was granted. Hudson County Superior Court Judge Marybeth Rogers ruled that the deposition subpoena on attorney Allan Roth is quashed due to attorney-client privilege, but that Percella can still seek unprivileged and relevant information through an information subpoena.

On the other hand, the court rejected the notion of attorney-client privilege for Horn but did grant a protective order for city officials named in the suit that will give depositions including DeMarco, Chmielewski, Russo, La Pelusa, and Nestico, as well as Horn and Davis. As a result, this means that those individuals will still be subject to deposition, but it must be only relevant to Percella’s amended complaint.

“Plaintiff shall not set sail on a fishing expedition, but only seek relevant information,” Rogers wrote.

Legal back-and-forth

Earlier court documents show why attorney sought to depose the aforementioned officials, as well as the opposing attorneys response as to why they should not be included.

In a reply brief from February by Percella’s attorney Vincent Gerbino, of Bruno Gerbino Soriano & Aitken, he argued Roth and Horn should not be exempt from depositions because they never filed a motion to reconsider after Turula ruled they can be deposed and because of their knowledge of the allegations. According to Gerbino: “both have intimate, personal, first-hand knowledge of Plaintiff Percella’s allegations asserted.”

Gerbino also alleged the city was stalling: “We must insure that a case in which a mayor admitted to ‘sexting’ a subordinate long-time employee, Plaintiff Percella, is not short-changed for what appears to be a circumvention of the rules.”

In response, attorney Stephanie Platt of Ruderman & Roth said that a motion to quash can suffice for a motion for reconsideration, and cited attorney-client privilege as a reason for both of their deposition subpeonas to be quashed.

”Plaintiff has failed to demonstrate with any specificity that testimony sought of Mrs. Horn or Mr. Roth is relevant or material to the case at hand,” Platt wrote. “The Plaintiff in this instant matter has failed to demonstrate why attorney-client privilege does not apply to the instant matter when in fact she is seeking information that specifically touches upon their roles as attorneys hired on behalf of the City.”

Things were largely silent throughout most of March after the last documents were submitted. Then Rogers made her ruling on March 24.

Officials may be deposed before election

Ultimately, Rogers agreed with Platt when it came to quashing the deposition subpoena for Roth, but not Horn or La Pelusa. And it did grant the requested protective order on the depositions. While these motions are par the course for a lawsuit, the ruling does mean that there exists the possibility that city officials may be deposed in court ahead of the May 10 municipal election, however, it will be limited to what is relevant in the lawsuit. 

According to Law Director Jay Coffey, it is city policy not to comment on active litigation.

For updates on this and other stories, check www.hudsonreporter.com and follow us on Twitter @hudson_reporter. Daniel Israel can be reached at disrael@hudsonreporter.com. 

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