By Jason Re, Esq.
In 2016, a former high school baseball player in New Jersey sued his previous high school coaches, and the school district, for an alleged culture of bullying that was fostered, setting off a twisted chain-reaction of lawsuits, counterclaims, and litigation that has lasted for over five years.
David DeFranco attended Columbia High School in Maplewood, where he was also a member of the baseball team. As the plaintiff, DeFranco alleged that, among other things, the defendants violated the New Jersey Anti-Bullying Bill of Rights Act (the “DeFranco Litigation”). The plaintiff cast a wide net of alleged impropriety – bringing in the South Orange-Maplewood Board of Education (the “Board”) as a named defendant, as well as various coaches and school staff members as additional defendants. Specifically, the defendants include Joseph Fischetti, Samuel Maietta, and Lorenzo Busichio, who were at all relevant times the varsity baseball coach, the junior varsity baseball coach, and the school’s athletic director, respectively. In the suit, DeFranco alleges that the baseball coaches made sexist, racist, vulgar, and demeaning comments to players, including curtains at them and referencing students’ sexual activity; that baseball coaches taunted the plaintiff when he did not get playing time during a game; that coaches intimidated the plaintiff after he spoke up about the alleged conduct described; and that the district and administrators allowed for this alleged behavior to occur despite ongoing student complaints. Further, DeFranco alleges that he was cut from the baseball team his senior season because he complained about the bullying problem the previous year. Another player’s father, Randy Nathan (“Nathan”), makes a very similar claim on behalf of his son Alex, leading to internal investigations by the school board into any alleged conduct.
Notably, as a part of the DeFranco litigation, the defendants agreed to provide their cell phone data for a forensic audit. Under the terms of the protective order relating to the forensic audit, a “confidential” designation by the producing party automatically rendered the material unusable except by counsel and solely for the purposes of litigation, unless otherwise ordered by the court. If a party disputed the designation of any discovery as confidential, the objecting party could “seek appropriate relief” from the court.
Relatedly, as part of the DeFranco litigation, a settlement agreement was reached in 2019, providing in pertinent part that:
“[The settlement] is without prejudice to the rights of the parties in [the Fischetti litigation] or to the right of the Board to file an application before a tribunal of competent jurisdiction to use the text messages at issue in this matter for such disciplinary purposes as the Superintendent or the Board sees fit. This settlement is further subject to preservation of the text messages at issue in this matter by counsel for defendant[s]… as required by the confidentiality order in the present matter.”
As a result, the Board gained access to racially and religiously insensitive text messages exchanged by defendants on their personal cell phones. Essentially, we have a protective order and a settlement agreement that may, in certain circumstances, be at odds with each other, as the confidentiality and allowable uses of said cell phone data leaves questions unanswered and a stark lack of clarity. These questions would arise sooner rather than later.
In July 2019, the Board filed a motion denominated as seeking to “enforce settlement,” but the motion actually sought authority to access the text messages and use them “for disciplinary purposes.” In a parallel proceeding, Nathan appealed from a Law Division order denying his motion to use the aforementioned text messages in a pending proceeding in the Office of Administrative Law (OAL). Nathan’s complaint to the Board about harassment and bullying of his son was denied, and Nathan also found himself named as a defendant in a defamation suit brought by Fischetti, and in that suit was provided with the text messages. Ultimately, Nathan’s attempt to use the text messages in the OAL proceeding were denied in 2021, and so he appealed.
These two separate appeals were argued back-to-back, and consolidated into a single opinion on appeal here. The appellate court here had an initial task of reviewing both the protective order and the settlement agreement de novo, examining the plain language to discern the parties’ intent. That is the general basis of the appeal, and in theory would illuminate the relationship between the two agreements, and specifically how and when these text messages could be used in official proceedings.
Ultimately, the appellate court here found that contrary to the Board’s arguments, the settlement agreement did not override the protective order and guarantee the Board’s ability to use the text messages in future disciplinary proceedings. Rather, the settlement agreement simply gave the Board “the right… to file an application before a tribunal of competent jurisdiction.” It seems that after the protective order, there needed to be some kind of motion or ask, so to speak, as to if the data could be used. Notably, the settlement agreement was entered after the protective order, and by the express terms of this second “contract,” the parties bargained for and agreed that the Board could seek to use the text messages. Defendants entered into the settlement agreement expressly “without prejudice to the rights” of the Board to apply to the court “to use the text messages… for such disciplinary purposes” as it saw fit. Once again, we see that the parties could seek to use the text messages – nothing is guaranteed, and nothing is explicitly ruled out.
Further, the appellate court agreed with the appellants that the lower court judge failed to adequately weigh the parties’ competing post-settlement interests as he was required to do under the express terms of the settlement agreement. More specifically, the appellate court found that in considering defendants’ private interests in maintaining the confidentiality of the text messages, the lower court judge was incorrect when he wrote that the “messages had no connection with [defendants’] business activities or school related functions.” The appellate court went on to point to the public interest of the law, stating that the “Legislature has made clear its intention in enacting legislation to address the bullying and harassment of students, whether on or off school grounds, and the role of faculty and staff to be role models for appropriate behavior.”
On the foregoing bases, the appellate court ruled that the lower court had erred – it rejected the defendant’s argument that the protective order governed the use of the cell phone data in Nathan’s Office of Administrative Law proceeding. It further concluded that the denial of the Board’s motion and the grant of Fischetti’s and Busichio’s cross-motion reflects a mistaken exercise of the court’s discretion, as the court failed to adequately weigh the interests of the parties, the realistic uses, the available avenues for relief, and the public interest. The public interest in holding public school employees to a higher standard, and wanting them to be shields against bullying as well as role models, weighed particularly heavily. This twisted web of litigation has gone on for several years, stemming from a single complaint of bullying and harassment by a New Jersey high school baseball player, and leading to genuine questions of confidentiality, the use of cell phone data under protective order, public interest, and the interplay of agreements between opposing parties as they play out in administrative hearings and civil litigation.
