SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3518- 22 REBECCA MCCARTHY, Plaintiff-Respondent,

v. CARE ONE MANAGEMENT, LLC,and ALISON FITZPATRICKDURSKI, Defendants-Appellants.

______ ________________________

Argued December 5, 2023

– Decided January 16, 2024 Before Judges Whipple, Mayer and Paganelli. On appeal from an interlocutory order of the Superi or Court of New Jersey, Law Division, Bergen County, Docket No. L- 8657

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. Bruce H. Nagel argued the cause for appellant Care One Management, LLC (Nagel Rice, LLP and O'Toole Scrivo, LLC, attorneys; Bruce H. Nagel, Robert H. Solomon, Thomas P. Scrivo, and Michael J. Dee, of counsel and on the briefs ). Paul R. Castronovo argued the cause for respondent (Castronovo & McKinney, LLC, attorneys; Thomas A.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3518

- 22 McKinney, Paul R. Castronovo, and Edward W. Schroll, on the brief ). PER CURIAM By way of leave granted, defendant Care One Manage ment, LLC (Care One) 1 appeals from a June 8, 2023 order denying its moti on to disqualify the law firm of Castronovo & McKinney, LLC, from further re presentation of plaintiff Rebecca McCarthy. We affirm. In our prior opinion, McCarthy v. Care One Managem ent, LLC, No. A2542 -19 (App. Div. July 12, 2021) (slip op. at 1), we a ffirmed the jury's award of compensatory damages to plaintiff. We also determined "an award o f punitive damages against Care One was warranted." Id. at 12

. However , contrary to N.J.S.A. 2A:15-5.12(c), "the jury asses sed punitive damages . . . without the benefit of any evidence regarding Care One's financial condition. " Id. at 13. Thus, we concluded "[u]nder these circumstances, th e award must be vacated and a new trial as to punitive damages must be conducted after an opportunity for discovery of relevant information." Id. at 14

. We expressly directed discovery of "evidence regarding Care One' s financial condition . . . ,

1 Defendant's current corporate designation is ABC 18 57, LLC f/k/a Care One Management, LLC.3 A- 3518

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including [] balance sheets and cash flow statement s, as well [as] documents and information regarding [Care One's parent]." Id. at 13

. Based on our remand instructions, plaintiff served Care One with requests to produce documents. Plaintiff's document request s includ ed not only Care One's financial documents but financial documents from related corporate entities. Plaintiff subsequently filed two separat e motions seeking to compel
Care One to provide discovery related to its financial conditi on. On June 7, 2022 , and again on January 13, 2023, the judge partiall y granted plaintiff's motions and ordered Care One to produce its financi al documents but not documents concerning the financial condition of rel ated corporate entities. To comply with the first order compelling discovery , on June 10, 2022,
Care One 's Executive Vice President and Chief Legal Officer, Ricardo Solano, sent an email to Howard Tepper , Care One's Senior Vice President of Finance, asking him to "designate somebody . . . to work wit h [Care One 's outside counsel] on identifying what potential records [Car e One] ha[s] to produce to satisfy [its] discovery obligation." Tepper design ated Care One 's Accounting Manager, Harriet Sar na , to provide Care One's financial documents. On Ju ne 13, 14, and 15, 2022, Sarna provided Care One's cou nsel with payroll records, general ledgers, and W-3 forms for 2016 through 2020.4 A- 3518

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On June 16, 2022, Tepper and Sarna spoke with Care One's in-house and outside counsel to discuss Care One's compliance wi th the court's June 7, 2022 order compelling discovery. According to Care One, during this conference call: [T]he participants, led by . . . Tepper, reviewed a nd

analyzed certain financial documents maintained by Care One to determine whether they were encompassed by . . . the [c]ourt's June 7, 2022 order. The cal l . . . involved a detailed discussion . . . regarding the details of Care One's financial records, including how thos e records [were] generated and recorded . . . [,] [in order to] produc[e] relevant and responsive records. The next day, Care One produced approximately one t housand pages of financial documents to plaintiff. On November 22, 2022, plaintiff filed another motio n to compel discovery, "seeking records related to not only . . . Care One . . . but also various related entities." In a January 13, 2023 order, th e judge required Care One to produce "detailed financial information, including tax records; income records; profit and loss records and related information for Care Services . . . and Care
One." On January 26, 2023, Tepper again spoke with Care O ne's in-house and outside counsel to discuss Care One's compliance wi th the January 13 order. On January 30, 2023, one of Care One's outside counsel circulated a draft cover5 A- 3518

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letter to accompany the financial documents produce d in response to the court's January 13 order. Counsel asked Tepper to review t he draft letter for accuracy. Later that day, Care One asserted Tepper communicat ed with Care One's counsel by email and telephone to discuss "information and fig ures contained [i]n the financial records . . . to determine [the] relevanc e and responsiveness of the documents proposed to be produced." On February 5 and 22, 2023, Tepper forwarded confid ential financial documents regarding Care One to his personal email account. According to Care One, Tepper's decision to forward these emails to h is personal email account violated the terms of his employment. Specifically , Care One claimed Tepper was prohibited from using Care One's proprietary in formation and confidential records "for [his] own purpose or for the benefit o f any individual or entity other than [Care One]." On February 24, 2023, Care One fired Tepper. Tepper then retained Castronovo & McKinney to represent him in negotiati ng a severance package. Castronovo & McKinney sent a March 6, 2023 letter to Care One , alleging Care One violated Tepper's rights by "firing him in retaliation for disclosing and6 A- 3518

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refusing to participate in [Care One's] illegal con duct." 2 The letter offered to release Tepper's legal claims against Care One in e xchange for "a fair severance package." 3 In response, Care One sent a March 31, 2023 letter to Castronovo & McKinney, asserting the law firm's representation o f Tepper would result in disclosure of confidential and privileged informati on relevant to plaintiff's punitive damages case. Care One claimed Tepper had no right to disc lose privileged information to Castronovo & McKinney. A week after sending that letter, Care One filed a motion to disqualify Castronovo & McKinney from further representing pla intiff in the punitive damages retrial due to the law firm's violation of the Rules of Professional Conduct (RPCs). In opposition to the disqualification motion, Teppe r certified his involvement with plaintiff's case was limited t o "gather[ing] documents, without any explanation or input." Tepper denied possessing "privileged

2 Tepper asserted a whistleblower claim against Care One under the Conscientious Employee Protection Act, N.J.S.A. 34:19 -1 to - 14. Tepper claim ed he was fired by Care One for objecting to Care One 's plan to pay State penalties rather than properly staff its healthcare facilities and challenging the company's characterization of certain business expe nses.

3 According to information in the record, Tepper eventuall y retained a different law firm to pursue legal action against Care One.7 A- 3518

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information or documentation from Care One, includi ng regarding [Care One's] defense" in plaintiff's litigation. In a May 8, 2023 order, the judge denied Care One's disqualification motion without prejudice. In denying the motion, t he judge explained he lacked "specifics and details" of Tepper's alleged involve ment in Care One's defense beyond Care One's "conclusory statements." The judge stated Care One had to provide "concrete information" that Tepper provided privileged and confidential information to Castronovo & McKinney and was involv ed in strategic discussions about plaintiff's punitive damages retrial to warrant disqualification. Care One subsequently renewed its disqualification motion and submitted additional certifications and exhibits. In opposin g the renewed motion, Paul Castronovo certified Tepper did not provide any pri vileged information or materials related to plaintiff's retrial to him or to his law firm. Additionally, Castronovo denied having any knowledge or possessio n of the redacted emails Care One provided to the court for in camera review in deciding the disqualification motion. In a June 8, 2023 order, the judge again denied the disqualification motion.
In deciding the renewed disqualification motion, the judge conducted a "detail[ ed ] " in camera review of "the exhi bits [,] including emails and8 A- 3518

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certifications submitted by [Care One's] counsel." After considering the legal arguments and reviewing documents in camera, the ju dge found Care One "failed to meet the heavy burden required for disqu alification." The judge rejected Care One's contention that Castronovo & Mc Kinney violated the RPCs and declined to disqualify the law firm from contin uing to represent plaintiff. The judge stated:

When considering a motion to disqualify . . . , [th e] movant bears the burden of proving the disqualifica tion is appropriate due to . . . an RPC violation. RPC 1.13 controls here. It has to be established that . . . Tepper was responsible for or significantly involved in the organization's legal position of the matter and did not mere ly provide information or data. . . . Motions to disqualify a re viewed with disfavor[,] and disqualification [is] considered a drastic measure which courts should hesitate to impose[] except when absolutely necessa ry. . . . It's this [c]ourt's view that [Care One] [did not ] meet [its] burden of showing that . . . Tepper was significantly involved in litigation control. Inst ead[,] what is revealed through the e-mails is that . .

. Tepper was involved with production of documents and data.

. . . . There's a lot of . . . inference and innuendo, but there's nothing here that tells me specifically . . . an attorney . . . involved in that litigation strategy . . . me t with . . . Tepper and had discussions as to legal strategy . . . .9 A- 3518

- 22 It sounds to me that . . . Tepper responded to thei r inquiries for documents. If they had a question ab out the document . . . , he would respond to that. But he . . . didn't determine how [Care One] . . . implement[ed] its legal strategy.
On July 20, 2023, we granted Care One's motion for le ave to appeal the order denying disqualification of Castronovo & McKi nney from further representation of plaintiff. On appeal, Care One contends the judge erred by fai ling to disqualify Castronovo & McKinney under RPC 4.4. Care One argu es Castronovo & McKinney, during its representation of Tepper, obta ined confidential and privileged information relevant to plaintiff's case and must be disqualified because it obtained evidence in violation of Care O ne's rights. We reject these arguments. We review a trial court's determination on a motio n to disqualify counsel de novo. City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010) ; see also Greebel v. Lensak, 467 N.J. Super. 251, 257 (App. D iv. 2021). In reviewing a

mo tion for the disqualification of counsel for an adv ersary based on the RPCs, we are required to "balance competing interests, we ighing the need to maintain the highest standards of the profession against a c lient's right freely to choose his counsel." Twe nty -First Century Rail Corp. v. N.J. Transit Corp., 21 0 N.J.10 A- 3518

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264, 273-74 (2012) (quoting Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988)). "[T]o strike that balance fairly , courts are required to recognize and to consider that 'a person's right to retain counsel of his or her choice is limited in that there is no right to dema nd to be represented by an attorney disqualified because of an ethical require ment.'" Id. at 274 (citations omitted). "Disqualification of counsel is a harsh discretiona ry remedy which must be used sparingly." Dental Health Assocs. S. Jerse y, P.A. v. RRI Gibbsboro,
LLC , 471 N.J. Super. 184, 192 (App. Div. 2022). Additionally, d isqualification motions are "viewed skeptically in light of their p otential abuse to secure tactical advantage." Escobar v. Mazie, 460 N.J. Super. 520, 526 (App. Div. 2019) (citing Dewey , 109 N.J. at 218). Care One argues Castronovo & McKinney violated RPC 4.4(a) by obtaining information regarding Care One's privileg ed litigation strategy related to plaintiff's punitive damages retrial and Care On e's confidential financial documents. Care One asserts Tepper improperly emai l ed confidential financial documents to his personal email and shared those do cuments with Castronovo & McKinney.11 A- 3518

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RPC 4.4 addresses "[r]espect for [r] ight s of [t]hird [p]ersons." Under RPC
4.4 (a ), "[i]n representing a client, a lawyer shall not use . . . methods of obtaining evidence that violate the legal rights of such a pe rson." Care One argues Tepper possessed protected and privileged information rega rding Care's One litigation strategy in producing financial documents responsiv e to the June 7, 2022 and January 13, 2023 court orders. Care One contends Tepper communicated with its in-h ouse and outside counsel regarding corporate financial documents to be p roduced to plaintiff and provid ed legal advice regarding those documents such that t he communications were protected by the attorney-client privilege. Care One portrays Tepper's involvement in the production of financial informat ion responsive to the court's orders as "assist[ing] Care One's attorneys in prov iding legal advice concerning [plaintiff's] litigation." However, based on Tepper's certification in opposit ion to Care One's first motion to disqualify Castronovo & McKinney, Care One mischaracterizes and overstates Tepper's function. Tepper aided in gather ing documents on Care One's behalf related to the disclosure of the compa ny 's financial condition relevant to plaintiff's puniti ve damages retrial. In his certification, Tepper asse rted he engaged in the following activities: (1) instruct ed Sarna to provide financial records to be produced in12 A- 3518

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response to the judge's orders; (2) determin ed the documents constituting Care One's "financial records"; (3) review ed for accuracy a draft cover letter to Castronovo & McKinney enclosing the responsive disc overy documents; and (4) provid ed information regarding Care One's financial records , including how those records were generated and recorded. Based on the information contained in the motion re cord, Tepper's involvement was correctly characterized by the judg e as "the supplying of factual information or data respecting the matter." Tepper participated in culling financial documents relevant to Care One's financia l condition as ordered by the judge. Care One's certifications in support of its disqualification motion simply explain ed Tepper's role in the selection of its financial documents produced to Castronovo & McKinney

. Accepting as true that Tepper explain ed certain financial documents to Care One's counsel, such discussions did not consti tute legal strategy. Care One's counsel had to decide which financial documen ts were responsive to the court's orders. Ultimately, Care One's counsel was responsible for producing all documents relevant to Care One's financial conditio n and certifying Care One's compliance with the judge's orders.13 A- 3518

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Care One does not claim the documents it produced t o Castronovo & McKinney are privileged. Because Care One presumab ly produced all documents in its possession responsive to the judge 's orders, the means and manner related to the production of the documents l acks any relevance re lated

to plaintiff's punitive damages retrial. Thus, any discussion Tepper may have had with Care One's counsel regarding the productio n of the company's financial documents would not be evidence at the retrial. Consistent with our prior opinion, documents produc ed by Care One evidencing its financial condition must be presente d to the jury during the punitive damages retrial under N.J.S.A. 2A:15-5.12(c)(4). To the extent Castronovo & McKinney might consider using documents r elated to Care One's financial condition which were not produced by Care One's counsel, unless the documents were otherwise publicly available , the potential consequences to the law firm could be far more severe than disqualifica tion. However, on this record, we are satisfied Care One failed to meet its heavy burden of demonstrating Castronovo & McKinney viola ted RPC 4.4(a) to warrant disqualification of the law firm from conti nued representation of plaintiff. Care One proffered "inference and innuendo" that Ca stronovo & McKinney obtained, reviewed, and intended to use Ca re One's confidential14 A- 3518

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financial documents in connection with plaintiff's puni tive damages retrial. We are confident the trial judge will be able to addre ss a disqualification motion during the retrial if Castronovo & McKinney attempt to produce as evidence of Care One's financial condition any documents not pr eviously produced by Care One in response to the court's orders or documents not otherwise available to the general public. At this juncture, Care One failed to demonstrate Te pper disclosed to Castronovo & McKinney any confidential and privileg ed information or material to be used during plaintiff's punitive dam ages retrial. To prevail on its disqualification motion, Care One had to demonstrat e Castronovo & McKinney violated the RPCs. Care One has failed to do so on the present record. Because we are satisfied Castronovo & McKinney did not violate any ethical rules on th e record before us, we need not address the federal cases from other jurisdictions and unpublished cases relied up on by Care One in support of its arguments on appeal. First, those cases are no t binding on this court. In addition, the cases are premised upon judicial determinations that the actions of the adverse law firms constituted ethical violation s. During the punitive damages retrial, if Castronovo & McKinney were to use unlawfully obtained confidential or privileged information, then RPC 4.4(a)15 A- 3518

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may be triggered. We take no position whether a situation may arise d uring the course of the punitive damages retrial warranting r enewal of Care One's motion to disqualify Castronovo & McKinney. Nor do we off er any opinion as to the propriety of the law firm's conduct under these uni que circumstances. To the extent we have not addressed any of Care One 's remaining arguments, those arguments are without sufficient m erit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.