Misconduct in Sex-Abuse Lawsuit Raises Eyebrows

     MANHATTAN (CN) – A federal judge slapped sanctions against Brooklyn’s Poly Prep Country Day School, its trustees, and its current and former headmasters for withholding or destroying evidence related to allegations that the school’s late football coach, Philip Foglietta, committed serial sexual molestation.




     In e-mails to Courthouse News, a lawyer for former students said his clients were “heartened” by the decision, while Poly Prep’s attorneys hinted they might challenge the sanctions.
     In an Oct. 26, 2009, complaint, seven alumni accused the elite prep school of violating anti-racketeering law engaging in a cover-up of a coach’s “horrific sexual abuse,” which crossed state lines, since 1966. The alumni said Foglietta “sexually abused dozens, if not hundreds, of boys,” and that drug abuse, suicide attempts, relationship troubles and alcoholism later plagued many of Foglietta’s victims.
     Two more have joined the suit since that time, and court documents say six more alleged victims have been identified for “Attorneys’ Eyes Only.”
     Although Poly Prep now admit Foglietta was fired for sexual misconduct, at the time the school honored Foglietta with a “lavish retirement dinner” attended by 500 people and even set up a memorial fund in his name after he died in 1998, court documents say.
     William M. Williams and David B. Harman, the school’s former and current headmasters, respectively, are also named as defendants in the RICO action, along with unnamed members of Poly Prep’s Board of Trustees.
     In a 2002 letter to alumni, Harman wrote, “Unfortunately, we have recently received credible allegations that such abuse occurred at Poly Prep more than twenty years ago by a faculty member/coach, who is now deceased.”
     After receiving a settlement demand from an alumnus, Poly Prep hired attorney Peter Sheridan to launch a privileged and confidential investigation into the allegations. Sheridan claimed that investigation showed that the school’s faculty and staff reported no firsthand knowledge of abuse.
     Poly Prep’s current lawyers with O’Melveny & Myers did not put a litigation hold on the notes before Sheridan had disposed of them, according to an 80-page order filed on Wednesday.
     In that document, U.S. District Judge Cheryl Pollak wrote that the disappearance of the notes “constitutes negligence at best,” and she ordered unspecified “reasonable expenses, including attorney’s fees and costs.”
     The alumni say that the Sheridan notes are only one example of documents destroyed or discarded by the defendants.
     In 1970, former headmaster Williams received two anonymous letters saying Foglietta was “doing terrible things to your children,” and received other letters in faculty mailboxes in 1991, the order states.
     Williams said in depositions that the letter in the mailbox contained “something nasty about Foglietta. I don’t remember what it was.”
     When asked why he threw it out, he replied, “I assumed – I don’t know. I guess – I don’t know. I can’t guess. I don’t know.”
     Pollak was dubious about Williams’ answers, but she rejected the alumni’s motion to declare he had perpetrated a “fraud upon the court.”
     “Although it does appear that there are many inconsistencies in Williams’ deposition testimony and handwritten notes, and there are many things that he could not recall, the Court finds that plaintiffs have failed, at this time, to provide sufficient evidence to show that Mr. Williams intentionally perjured himself. In the errata sheet, Mr. Williams attempted to clarify some of the things about which he had been mistaken,” Pollak said.
     Attorneys will submit affidavits to determine the cost of the sanctions on May 13, and discovery will conclude at the end of that month.
     Attorneys for Poly Prep, meanwhile, hinted that they may challenge the sanctions.
     “We are currently reviewing the judge’s order with our client and will determine the best course of action following that review,” Jeffrey Kohn of O’Melveny & Myers said in an e-mail. “In light of the facts that we described to the court, we believe our firm acted properly in connection with the handling of discovery in this matter.”
     The alumni’s lawyer, on the other hand, hailed the decision.
     “Plaintiffs are most heartened by Judge Pollak’s well-reasoned decision,” attorney Kevin T. Mulhearn wrote. “We look forward to proceeding with discovery,” he added.

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