Bayonne Mayor Jimmy Davis and other city officials must still give depositions after a judge ruled on their motion to quash as part of an ongoing “sexting” case filed over four years ago.
By John Heinis/Hudson County View
“Defendant’s Motion for a Protective Order is GRANTED limiting Plaintiff’s Notices in Lieu of a Subpoena to Ellen Horn, Esq., Joseph DeMarco, James M. Davis, Gary Chmielewski, Donna Russo, Gary La Pelusa, and Bernadette Nestico,” Hudson County Superior Court Judge Marybeth Rogers ruled on Thursday.
Additionally, the deposition subpoena served on Allan Roth, labor council for the city, has been quashed due to attorney-client privilege, though plaintiff Stacie Percella can still seek unprivileged and relevant information from Roth through an information subpoena.
Meanwhile, Ellen Horn, an employment hearing officer for the city, will have to give a deposition after the court rejected an argument that she would also have attorney-client privilege.
Hudson County Superior Court Judge Joseph Turula ruled that the aforementioned officials would be deposed back in December, as HCV first reported, about seven months after the appellate court reinstated Percella’s case – about 15 months after the case was dismissed.
Percella, a former deputy registrar for the city, filed a lawsuit back in January 2018, alleging that Davis abused his office by “sexting” her and offering her a $150,000 settlement for a prior lawsuit in exchange for a romantic relationship.
In a reply brief filed by Vincent Gerbino, Percella’s attorney in the matter and a managing partner at Bruno Gerbino Soriano & Aitken, on February 24th, explains why Roth and Horn should not be exempt from depositions.
For one, he notes that Roth and Horn never filed a motion to reconsider after Turula’s ruling, also claiming that the motion to quash standard was not met.
“The Discovery Rules provides ‘litigants with the opportunity of full discovery from non-parties’ affords ‘notice of such inquiries to adversaries,’ and permits ‘adversaries an appropriate opportunity to challenge the propriety of such discovery.’ This frivolous notion is not it,” Gerbino wrote.
“Mr. Roth and Ms. Horn are in fact witnesses (she presided over the departmental termination hearing). They both have intimate, personal, first-hand knowledge of Plaintiff Percella’s allegations asserted.”
Gerbino also slammed the city for repeatedly delaying the case and preventing a civil trial from taking place.
” … 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 … The Plaintiff’s Request for Relief is clear; it is warranted; and consistent with New Jersey State Court Rules and State Law.”
In a February 28th reply, Stephanie M. Platt, of Ruderman & Roth, LLC, said that a motion for reconsideration on Turula’s ruling could also be met with a motion to quash, explaining why depositions of Roth and/or Horn would infringe upon attorney-client privilege.
” … 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, which Plaintiff must do as described in the City’s February 11, 2022 Reply Brief,” she stated.
“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.”
With the ruling, the possibility of city officials giving depositions before the May 10th municipal elections adds a ton of further intrigue to the case for local politicos.
The city’s policy is not to comment on pending litigation.