Daigle v. City of Portsmouth

• Decision Date: 29 December 1988
• Docket Number: No. 88-028,88-028
• Citation: 131 N.H. 319,553 A.2d 291
• Parties: Dale A. DAIGLE v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

Page 291

553 A.2d 291

131 N.H. 319

Dale A. DAIGLE v. CITY OF PORTSMOUTH.

No. 88-028.

Supreme Court of New Hampshire.

Dec. 29, 1988.

Bernard J. Robertson, Exeter on brief and orally, for plaintiff.

Burns, Bryant, Hinchey, Cox & Shea P.A., and Stern and Gaige P.A., Dover (Paul R. Cox, orally, and Stephen E. Gaige, on the brief), for defendant.

JOHNSON, Justice.

The plaintiff, Dale A. Daigle, appeals from a decision of the Superior Court (Nadeau, J.) denying his motion for sanctions against the defendant and defendant's counsel for the withholding of certain materials and for the making of incomplete statements during the discovery phase of Daigle v. City of Portsmouth, Rockingham Superior Court No. C-814-83. In a consolidated sanction motion, Daigle seeks an assessment of penalties, including reimbursement of legal expenses. For the reasons stated below, we vacate the order denying the motion, and remand the case for a determination as to the appropriate sanctions.

This appeal follows the verdicts in two trials, both involving Daigle and arising from the same events. In Daigle v. City of Portsmouth, a jury held the City of Portsmouth liable to the plaintiff on a theory of respondeat superior for the assault on Daigle committed by Portsmouth police officer Al Pace. In Daigle v. Pace, Rockingham Superior Court No. C-969-84, wherein Daigle sought to hold Pace personally liable for the assault, a different jury found that Pace had not assaulted Daigle. The facts of these cases and their inconsistent verdicts are discussed in detail in Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689 (1987).

The motion for sanctions involves a failure by the City of Portsmouth to produce four statements implicating Pace in the assault on Daigle, and a failure to reveal the existence of these statements in answers to interrogatories and in various representations to the court. These statements are the "Hersey" note and "Lightizer," "Moore" and "Sargent" statements. The relevant facts are as follows.

On June 29, 1983, Daigle served a writ on the City of Portsmouth (the City) and Town of Newington for the injuries he suffered as the result of a brutal assault on August 12, 1981. Pace was not named as a defendant. Attached to the writ were interrogatories which included a request to "copy and attach any and all written materials, including but not limited to police officers [sic] notes, police reports, field incident reports, memorandum, investigation reports, internal investigation reports and any and all other written material about or related in any way to the allegations contained in the Writ." The City answered the interrogatories on August 5, 1983, without objection, but did not attach the "Hersey" note, which it had in its possession at least as of July 10, 1983. This note memorialized an oral report given by Patrolman Robert Hersey to Detective George Krook as part of the Portsmouth Police Department's internal investigation into the assault. The note read:

"Had been drinking.

7-8-83

2:05 PM

Bob Hersey.

Came into office to talk about Daigle case.

Hersey said that he remembers Al Pace saying that he did a woopie on Daigle and something about Jim Truman [sic] (Newington PD) saying something about seeing Daigle running from the burglary and he knew who he was and there was no sense chasing him or words to that effect. Hersey said that he didn't know if Pace was telling the truth or just bragging. Hersey said that Pace was capeable [sic] of doing it to Daigle. He said that Pace has been brutol [sic] to other people in the past.

Hersey said that he thought that Pace even made the remark about teaching Daigle a lesson.

Hersey said he couldn't remember the exact words that Pace said."

On September 27, 1983, Daigle filed a motion for production which included a request for "all records of any and all interviews conducted in relation to this matter[,] ... all internal investigations including notes, interoffice memoranda, correspondence, statements, and reports ... [and] any and all written documents or tape recordings of interviews or meetings held with respect to this matter." No objections were filed by the City and the Trial Court (Bean, J.) granted the motion on October 12, 1983. The "Hersey" note was not turned over to Daigle.

On March 27, 1984, Stanton Remick, Marshal of the Portsmouth Police Department, in answer to interrogatories propounded by the plaintiff, stated that the defendant "has no factual evidence to show how the plaintiff received his injuries...." On May 8, 1984, then Sergeant Norman Moore, acting shift commander on the night of the assault, was asked in deposition whether "anything occur[red] on that shift that was unusual." He failed to reveal the following information which he later summarized in a statement, the "Moore" statement, which he sent to the Portsmouth Police Department between September 27 and October 5, 1984:

"On one occasion, I do not remember the date or situation, I was working the desk as the shift commander. [At the time of the incident he was a patrol supervisor but would work as shift commander when the captain was sick.] A call came in reference an officer requesting assistance. There were a couple of on-duty officers in the booking office as well as one off-duty officer, Al Pace. I told the duty officers to respond to the call. Al Pace was still in full uniform and yelled at me that he was going to give them a hand and ran out the door before I could stop him. The time of the call was somewhere between Midnight and 0300 Hrs. and the desk officer was Off. Semprini. I distinctly remember this happening as I was quite upset that he was not told to go ... I cannot state that this was the same date as the Daigle incident.... The only corrolation [sic] I can make as the time frame is consistent, it was one of the nights I happened to be in the station, and I dispatched men from the booking room area to the incidents."

The statement also included:

"[At the time of the Daigle incident,] Al Pace had not yet been promoted and ... he tried constantly to remain in the limelight to draw recognition to himself. It was common knowledge that he used excessive force in many of his arrests and somehow lived a charmed life as he always skated. Overall he had a very bad image among the men."

The information contained in the summary had "already been given" to the Portsmouth Police Department prior to its writing, although it is not clear from the record by what date the police department had such knowledge. In any event, the interrogatories previously answered were not supplemented in any manner, even after the department had received the "Moore" statement.

Also on May 8, 1984, the deposition of Director Mortimer of the Portsmouth Police Department, who was in charge of the internal investigation, was taken. He testified that "we do not have any fact or anything to report to you that any police officer hit Dale Daigle with a club," and that "[n]othing has led us to believe that it has happened so far." At this deposition, the internal investigation file was handed over to Daigle's counsel at his request. Prior to handing over the file, and in the presence of Daigle's counsel, Mortimer removed the "Hersey" note. Counsel for Daigle interrupted the deposition to seek a court order compelling production of the note which had been removed. In its objection to such a production order, the City stated:

"the document ... is a confidential communication ... [and] contains information which is readily discoverable by the plaintiff's counsel through proper discovery procedures or information which the plaintiff's attorney already has.... [A]lthough numerous depositions have been taken and interrogatories answered, there has been nothing to substantiate the allegations raised by the plaintiff in his lawsuit. The plaintiff bears the burden of proving his case."

On May 9, 1984, the Court (Temple, J.) ordered production of the note, and a copy was sent to Daigle, more than ten months after his initial interrogatory requesting "internal investigation reports and any and all other written material" related to the assault and nearly seven months after the court's October 12, 1983 order of production.

On August 14, 1984, Daigle filed a motion for specification of defenses. By order dated September 6, 1984, the Trial Court (Gray, J.) denied the motion "based on Defendant's response to interrogatories." The court instructed the City, however, to "advise Plaintiff's counsel if they come into possession of knowledge beyond that expressed in any interrogatory or answer."

On September 27, 1984, the Portsmouth Police Department sent a questionnaire to all of its personnel. The "Sargent" statement, answering the questionnaire, was returned sometime between September 27, 1984, and October 5, 1984. In it, Officer Sargent stated:

"[A]pproximately one week or less after the Taccetta call [which brought the officers to the place where Daigle was assaulted,] Bob Hersey called me by radio to meet him at the Bridge St. parking lot. Bob stated to me that Al Pace had told him that he had gone to the Taccetta call, found Daigle out back and had done a job on him and left him there. My responce [sic] to what Hersey told me was that Al Pace was a lier [sic] and a bragget [sic].... I can remember many times when Al Pace bragged about incidents but usally [sic] he was there but he would butter it up to make himself look better or cover his wrong doings.... One [rumor] that I do remember was that Al Pace was hanging around the station after duty (it was not uncommon for him to do this) when the call came in, he grabbed a set of keys and went to the call."

There is some dispute whether the "Lightizer" statement was given to the police department during this same period or on July 2, 1984. It is undisputed that the Portsmouth Police Department had the statement as of October 5, 1984. In response to the same...