Pregnant businesswoman writing on diary at desk in office. Credit: wavebreakmedia/Shutterstock.com

A Superior Court judge in Essex County has ordered an attorney to pay legal fees to her former law firm for failing to produce key evidence in her pregnancy discrimination lawsuit.

Judge Keith Lynott refused a motion by the Damiano Law Offices of Little Falls and principal Toni Damiano to dismiss the suit as a spoliation sanction. But he ordered plaintiff Nicole Casciola to pay attorney fees connected with efforts by the firm over a 17-month period to compel production of an audio recording.

Lynott also gave a green light to the Damiano firm's plan to file an amended counterclaim for fraudulent concealment against Casciola, and ordered a forensic examination of Casciola's mobile phone, which was allegedly used to make the recording.

Casciola claims the law firm was unsympathetic when she became pregnant with her first child in 2010 and asked for other attorneys to fill in for her on court appearances that were far from the office. Casciola claims that when she announced her pregnancy, Damiano blurted out, "That's great, what the [expletive] am I going to do now?" Casciola claims she continued to battle with Damiano over coverage of court appearances in distant locations when she became pregnant with her second child in 2016 and with her third child in 2017.

Casciola sued Damiano and her law firm in February 2018, bringing claims for gender discrimination, hostile work environment, retaliation and failure to accommodate a disability.

Damiano claims she and her firm have been accommodating to Casciola and to other female attorneys when they become pregnant, but the firm is within its rights to require all of its attorneys to work full time. The firm has seven lawyers and practices matrimonial and family law.

Casciola said in interrogatories that she would submit into evidence three recordings of conversations relating to the case, including an April 26, 2017, meeting with Damiano. Casciola produced the other recordings but not the April 26, 2017, meeting in which Damiano allegedly told Casciola the firm would not allow her to work part time.

Casciola gave no explanation for nearly 17 months for not turning over the recording, prompting the defense to file three separate motions to compel its production, said Michael Epstein of the Epstein Law Firm in Rochelle Park, who represents Damiano and her firm. Damiano moved for dismissal of the complaint on the basis of spoliation of evidence, and in an alternative she sought an adverse inference and a bar on testimony regarding the April 26, 2017, meeting.

While the motion was pending, Casciola's lawyer, Kevin Barber, wrote to Epstein and said the copy of the recording in question was lost and could not be found. He submitted a thumb drive with another copy of the recording.

Lynott said Tuesday that dismissing the case would be inappropriate given the circumstances. Lynott also declined to impose an adverse inference, but said the defendants could renew their motion at a later date.

"The plaintiff's and her counsel's failure to communicate with the defendants and to inform them and, during pending motion process, the court, of the fate of the tape previously possessed by counsel raises the distinct possibility of spoliation. Given the passage of so much time and in light of the long silence, it is not possible without more to credit the assertion that the original recording is intact and unaltered and that the copy now supplied by the Defendants is authentic," Lynott said.

Lynott said he was reluctantly imposing the counsel fees.

"However, it is readily apparent in the circumstances here that the motion practice could have been obviated altogether or limited if the plaintiff and counsel had simply communicated about the circumstances with the adversary. Here, the prior motions were met with no response and the plaintiff did not comply with the resulting orders," Lynott said.

"It should not have been necessary to pursue these motions to obtain essentially a substitute copy of the recording and an explanation of what happened. Accordingly, the defendants may submit a certification of services."

Epstein said he had not yet calculated his fees but said the total would be a "significant amount of money." Although Casciola's lawyer had acknowledged losing the recording, Epstein said, no explanation has been given why he didn't know earlier why it could not be produced.

"We think the recording is pivotal. The fact that we took 17 months to get it suggests they didn't want to give it to us," Epstein said.

Barber, the lawyer for Casciola, declined to comment.