In re N.H. Div. of State Police

• Citation: 174 N.H. 176,261 A.3d 283
• Decision Date: 26 March 2021
• Docket Number: No. 2020-0005,2020-0005
• Parties: PETITION OF NEW HAMPSHIRE DIVISION OF STATE POLICE
• Court: Supreme Court of New Hampshire

174 N.H. 176

261 A.3d 283

PETITION OF NEW HAMPSHIRE DIVISION OF STATE POLICE

No. 2020-0005

Supreme Court of New Hampshire.

Argued: October 28, 2020

Opinion Issued: March 26, 2021

Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general, Matthew T. Broadhead, senior assistant attorney general, and Jessica A. King, assistant attorney general, on the brief, and Mr. Broadhead orally), for the New Hampshire Division of State Police.

Davis|Hunt Law, PLLC, of Franklin (Brad C. Davis on the brief and orally), for Douglas Trottier.

CullenCollimore, PLLC, of Nashua (Brian J.S. Cullen on the brief and orally), for the Town of Northfield Police Department.

BASSETT, J.

The court accepted this petition for original jurisdiction filed pursuant to Supreme Court Rule 11 by the New Hampshire Division of State Police ("the Division") to determine whether the Superior Court (Kissinger, J.) erred when, in the course of litigation between Douglas Trottier, formerly a police officer in the Town of Northfield, and the Northfield Police Department ("Northfield PD"), it ordered the Division — a nonparty — to produce a file related to the Division's pre-employment background investigation of Trottier. The Division argues that the trial court erred because it ordered a nonparty to produce discovery without a proper "jurisdictional basis," such as a subpoena. It also argues that the court erred when it concluded that RSA 516:36, II (2007) did not bar discovery of the pre-employment background investigation file. Although the parties never served the Division with a subpoena — the proper procedure for propounding discovery on a nonparty to a litigation — we find that the trial court ultimately afforded the Division ample notice and the opportunity to object to disclosure of the file, and, therefore, there was no prejudicial error. Because we also hold that RSA 516:36, II does not apply to the pre-employment background investigation file, and, therefore, the file is not shielded from discovery, we affirm.

The following facts are supported by the record or are undisputed. Trottier served as a police officer for the Northfield PD for eleven years until he resigned in 2002. At some point thereafter, he was employed as a certified police officer with the Town of Barnstead Police Department. In May 2019, Trottier filed a complaint in superior court against the Northfield PD. In the complaint, Trottier alleges that, in 2018, he sought employment as a Trooper with the Division and that, in the course of the Division's pre-employment background investigation, the Northfield PD falsely represented to the Division that it had a "secret file" about Trottier. Trottier claims that the Northfield PD's false representation about the "secret file" damaged his reputation, caused the Division not to hire him, interfered with his employment prospects with other law enforcement agencies, and violated a prior agreement between him and the Northfield PD. As previously noted, the Division was not a named party in Trottier's lawsuit.

After filing his complaint, Trottier asked the Division for a copy of its pre-employment background investigation file. The Division construed the request as one made under the Right-to-Know Law, and denied it. See RSA ch. 91-A (2013 & Supp. 2020). Trottier did not challenge the denial by filing a separate suit under the Right-to-Know Law in the superior court. See RSA 91-A:7 (Supp. 2020). Instead, in his civil suit against the Northfield PD, Trottier filed an assented-to motion to compel the Division to disclose his pre-employment background investigation file. He argued that he and the Northfield PD believed that the file contained information relevant to his claims, and that the information would impact the Northfield PD's ability to mount a defense. Trottier did not issue a subpoena or give notice to the Division. On August 22, 2019, the trial court granted the motion to compel, ruling that it would reconsider its order "if the [Division] file[s] a motion to reconsider and/or objection within 10 days of receipt of this order."

The Division, after receipt on August 27 of a copy of the motion to compel and the August 22 order, filed a timely objection on September 6 and moved for a protective order to prevent discovery of the pre-employment file. The Northfield PD filed a reply on September 23, and the Division filed a surreply on October 10. In its pleadings, the Division argued that, because it was a nonparty and had not been served with a subpoena, the trial court's only justifiable basis for compelling production of the file was the Right-to-Know Law, RSA chapter 91-A. It further argued that the file, as a record pertaining to internal personnel practices, was exempt from disclosure under the Right-to-Know Law. See RSA 91-A:5, IV (2013). Alternatively, the Division argued that, even if a subpoena were properly issued, the file would be exempt from civil discovery because of the statutory privilege established by RSA 516:36, II.

The trial court held a hearing on Trottier's motion to compel on October 25. On October 29, it issued a written order and again granted the motion. It explained that, although it agreed with the Division that pre-employment files are exempt from disclosure under the Right-to-Know Law, it needed to address the distinct question of whether the file is subject to discovery. The court reasoned that RSA 516:36, II applies only to "internal investigations of people who are or were employed as police officers — not people who are seeking employment with the agency involved." Given this conclusion, and the fact that Trottier's claims put any statements made during the pre-employment investigation directly at issue, the court ordered the Division to produce the file subject to a protective order. The protective order required the parties to keep the file confidential and prohibited them from disclosing any portion of the file "in any public court filing or in open court absent approval by the Court in advance, with notice to the [Division]." The trial court denied the Division's motion to reconsider. The Division then filed this petition for writ of certiorari. See Sup. Ct. R. 11.

The Division raises two arguments in support of its position that the trial court erred when it ordered the Division to produce the pre-employment investigation file. First, it argues that, without service of a valid subpoena or the filing of a Right-to-Know Law petition naming the Division as a party, the court had "no jurisdiction over" the Division to order production. Second, the Division asserts that the file was not discoverable because the file relates to an "internal investigation into the conduct of any officer." RSA 516:36, II. None of the parties challenge the trial court's ruling that "pre-employment investigations are exempt from disclosure" under the Right-to-Know Law, and, therefore, we need not address the issue.

Certiorari is an extraordinary remedy that is not granted as a matter of right, but rather at the court's discretion. Petition of State of N.H. (State v. Lewandowski), 169 N.H. 340, 341, 147 A.3d 860 (2016) ; Sup. Ct. R. 11(1). Our review of the trial court's decision on a petition for writ of certiorari entails examining whether the court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously. See Petition of State, 169 N.H. at 341, 147 A.3d 860.

We review a trial court's decisions on the management of discovery under an unsustainable exercise of discretion standard. Petition of Stompor, 165 N.H. 735, 738, 82 A.3d 1278 (2013). The Division — the nonprevailing party — asks us to apply this standard when deciding the first issue raised in its petition. We therefore assume, without deciding, that our unsustainable exercise of discretion standard of review applies as we analyze the first issue. To satisfy this standard in the context of this unique case, the Division, a nonparty to the underlying litigation, must demonstrate that the trial court's ruling was clearly untenable or unreasonable to its prejudice. See id.

The Division first argues that the trial court lacked authority to order it to produce the investigation file. It asserts that there are two procedural avenues by which the trial court could have exerted authority over it as a nonparty and ordered production of the file: pursuant to a petition filed under the Right-to-Know Law or after service of a subpoena. The Division contends that the trial court did not afford it the procedural safeguards inherent in either process, thereby depriving it of timely notice of the governing legal framework and a meaningful opportunity to carry its burden of resisting disclosure.

As an initial matter, we are not persuaded by the Division's argument that the trial court erred when it did not "end[ ] its analysis at its conclusion that the records sought are ... exempt from production pursuant to RSA [chapter] 91-A." After the Division, relying upon the Right-to-Know Law, denied Trottier's request for the file, Trottier never brought a separate Right-to-Know Law action in superior court seeking disclosure of the file. See RSA 91-A:7 ; Lambert v. Belknap County Convention, 157 N.H. 375, 377, 949 A.2d 709 (2008) (involving petition for declaratory judgment alleging violation of the Right-to-Know Law filed in superior court after county officials denied petitioners’ request for documents). Rather, Trottier simply filed a motion to compel in the ongoing civil action, which specified that the parties sought the file because they believed it might contain information relevant to Trottier's claims or the Northfield PD's defense of such claims. In ruling on the motion, the trial court reasoned that, although it agreed with the Division that "pre-employment investigations are exempt from disclosure under the Right to Know statute, RSA 91-A:5," that...