Supreme Court At-a-Glance Contributor Sam Harkinson, Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts.

No. 2020-0005

March 26, 2021

Affirmed

 

  • Whether a party seeking discovery of a pre-employment background investigation by a police department from a non-party is required to issue a subpoena, and whether such discovery is barred by statutory privilege.

 

The Division of State Police (the “Division”) appeals a decision by the trial court granting disclosure of the Division’s pre-employment background investigation (the “File”) on Douglas Trottier (“Trottier”).  At issue is whether the Court erred in allowing the discovery of the File, when Trottier had not issued a subpoena, the normal tool for obtaining discovery from a non-party witness, and whether the File would nonetheless be privileged under the discovery rules pursuant to statutory privilege that exists to prevent disclosure of the File.

In the course of litigation that Trottier has with his previous employer, the Town of Northfield, Trottier requested the File from the Division.  When the Division did not release the File to Trottier, rather than issue a subpoena, Trottier moved, via an assented to motion, to order disclosure of the File.  The trial court ultimately concluded that the File was subject to disclosure, over the objection of the Division.

In reviewing the trial court’s determination that New Hampshire’s Right to Know statute was not dispositive of the issue, the Court found that the trial court had correctly determined that the pleadings were related to a discovery request in ongoing litigation rather than a Right to Know petition.  The Court also found that, despite not being issued a subpoena, the Division had not been prejudiced by Trottier’s methods.  Specifically, the Court looked to the process and readily determined that the Division had received the same amount of due notice that it would have received had a subpoena been issued.

In determining that the trial court had correctly ruled that the statutory privilege is found in New Hampshire RSA 516:36, the Court rejected the Division’s argument that the File fell within the definitions that the statute addressed, specifically that the File was a “pre-employment” file, and not an employment file as defined by the statute.  As such, the Court concluded that the File was subject to discovery.

 

Attorney General Gordan J. MacDonald, Solicitor General Daniel E. Will, Senior Assistant Attorney General Matthew T. Broadhead and Assistant Attorney General Jessica A. King on the brief, Senior Assistant Attorney General Matthew T. Broadhead orally for the New Hampshire Division of State Police.  Davis Hunt Law, PLLC, Brad C. Davis on the brief and orally for Douglas Trottier.  Cullen Collimore, PLLC, Brian J.S. Cullen on the brief and orally for the Town of Northfield Police Department.