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In re Jacobson

Superior Court of New Jersey, Appellate Division

December 30, 2013

IN RE PETITION OF BARRY JACOBSON AND DANIEL JACOBSON TO TAKE PRE-LITIGATION DISCOVERY PURSUANT TO RULE 4:11-1(b).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 12, 2013

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-645-12.

Susan Schleck Kleiner argued the cause for appellants Barry Jacobsen and Daniel Jacobson (Law Offices of Susan Schleck Kleiner, L.L.C., attorneys; Ms. Kleiner, of counsel and on the brief).

E. Carr Cornog, III argued the cause for respondent The Rotolo Law Firm (The Rotolo Law Firm, P.C., attorneys; Mr. Cornog, on the brief).

Eric S. Pasternack, Deputy Attorney General, argued the cause for respondent the Honorable Israel Dubin, A.L.J. (retired) (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Pasternack, on the brief).

Before Judges Yannotti and Leone.

PER CURIAM

Barry Jacobson and his son Daniel Jacobson (the Jacobsons) appeal from an order entered by the Law Division on December 24, 2012, which denied their petition for pre-litigation discovery pursuant to Rule 4:11-1. We affirm.

In June 2009, the Jacobsons retained The Rotolo Law Firm, P.C., to represent Daniel in an administrative action against the Jackson Township School District, in which Daniel asserted certain claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The Division of Civil Rights referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).

ALJ John R. Futey was the judge assigned to conduct the hearing in the case. ALJ Futey asked ALJ Israel Dubin to conduct settlement negotiations between the parties. The parties reached a settlement, which was placed on the record. A settlement agreement, dated July 16, 2010, was signed by Daniel, Victor Rotolo of the Rotolo firm, and the attorney for the school district. The agreement was subject to approval by the district's board of education.

On August 30, 2010, the Jacobsons discharged the Rotolo firm. Thereafter, Daniel claimed that the matter had not been settled. The school board filed a motion in the OAL seeking a determination that the parties had entered into a binding settlement. ALJ Jeff S. Masin determined that, because the school board had not approved the settlement, there was no binding agreement between the parties. The ALJ ordered that the matter be scheduled for a hearing.

The Rotolo firm filed a complaint against the Jacobsons seeking the legal fees allegedly owed for the services it had provided for the administrative action. With the parties' consent, the court entered a consent order dismissing the complaint without prejudice. The consent order provided that the complaint could be reinstated after Daniel's administrative action was resolved by settlement or decision.

On November 20, 2012, the Jacobsons filed a verified petition in the Law Division, Hunterdon County, seeking pre-litigation discovery pursuant to Rule 4:11-1. The Jacobsons sought an order permitting them to depose ALJ Dubin, who had retired. In their petition, the Jacobsons asserted that they expected to pursue a claim against the Rotolo firm or file a ...


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