Coutu v. State, 033117 NHSUP, 2015-CV-488

Docket Nº:2015-CV-488
Opinion Judge:Richard B. McNamara, Presiding Justice
Party Name:Michael Coutu v. State of New Hampshire, Bureau of Securities Regulation
Case Date:March 31, 2017
Court:Superior Court of New Hampshire

Michael Coutu


State of New Hampshire, Bureau of Securities Regulation

No. 2015-CV-488

Superior Court of New Hampshire, Merrimack

March 31, 2017



Richard B. McNamara, Presiding Justice

Plaintiff, Michael Coutu ("Coutu"), has filed a Motion to Compel documents which the Defendant, State of New Hampshire, Bureau of Securities Regulation ("BSR"), alleges are privileged. For the reasons stated in this Order, the Motion is DENIED.


Coutu has brought an action against the BSR alleging breach of an agreement pursuant to which he would provide services to the State of New Hampshire and the New Hampshire Department of Securities Regulation. The allegations in the case are straightforward, as are the defenses. Coutu was hired by the BSR to assist its implementation of administrative rulings regarding the Local Government Center ("LGC") and its two component members, the Property-Liability Trust ("PLT") and Health Trust (the "HT"). However, the BSR claims that Coutu breached his contract by, among other things, providing assistance to the Department of Labor ("DOL") without its knowledge, and advocating against positions taken by the BSR, without its knowledge.

According to the Motion to Compel, Plaintiff met with the then-Commissioner of the DOL, James Craig ("Craig") and with the DOL's counsel, Martin Jenkins, Esq. ("Jenkins") to explain that, in his opinion, the collateral required to be posted by PLT exceeded the DOL's requirements, and that unless it reduced the posted collateral, there was a risk that PLT would go bankrupt. (Mot. to Compel, p. 3.) While Craig admitted at his deposition that he met with Coutu, Plaintiff alleges that his memory of significant events was poor. (Id.) After Craig's deposition, Plaintiff filed his Third Request for Production of Documents seeking, in substance, communications and all internal memoranda relating to meetings between the DOL and Coutu and memorialization of the DOL's analysis of regulatory issues with the Worker's Compensation line of the PLT. Presumably, the purpose of this request is to obtain information which would tend to show that the BSR was well aware of Plaintiff's meetings with the DOL.

The BSR has produced 84 pages of documents but has withheld 41 documents which it asserts are privileged pursuant to either the work product privilege or the attorney client privilege.


Plaintiff first challenges the State's standing to assert an attorney-client privilege. However, the Attorney General is counsel for the State, and unlike the federal system, in New Hampshire the Attorney General provides legal representation to all the State boards and agencies. While the DOL may have its own counsel, the State can at the...

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