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Bar News - April 17, 2009

NH Supreme Court At-a-Glance March 2009


Civil Procedure Ė Electronic Discovery

New Hampshire Ball Bearing, Inc. v. W. Scott Jackson, No. 2008-073
March 18, 2009

Whether the trial court erred in its decisions concerning discovery motions, evidentiary ruling, jury instructions and the denial of post-trial motions.

The underlying issues in this matter were the misappropriation of trade secrets and the breach of a nondisclosure contract. There were discovery issues during both the pre-trial proceedings and the trial. The plaintiff raised a number of arguments on appeal. The plaintiff argues that the trial court erred in restricting access to defendantís computers and networks during discovery, made erroneous rulings on the admissibility of evidence and erred by not instructing the jury that defendants had violated preservation orders. Plaintiff also argued that the trial court erred in denying post-trial requests for a new trail and discovery sanctions against the defendant, but that issue was not preserved and the Court declined to address it.

The plaintiff here argued that due to the nature of electronic trade secrets, broad discovery was required. Relying upon federal court decisions, the Court agreed with the trial court that allowing the plaintiff to image all of the defendantís computers was "unnecessarily disruptive" to defendantís operations. The Court noted that the trial court did grant plaintiffís motion to compel once its request was limited. This decision was within the discretion of the trial court. Also, the trial courts refusal to admit evidence of the partiesí discovery disputes was within its discretion.

The Court next considered whether the trial court erred in rejecting plaintiffís requested jury instruction that defendant violated preservation orders. Jury instructions are used to identify issues of material fact and to explain the standards of law by which to resolve them. The scope and wording are within the sound discretion of the trail judge and evaluated as a reasonable juror would interpret them. Here, the trial court refused the instruction because it found that conflicting evidence required the question of spoliation was for the jury and the Court determined that this was proper.

Lisa Snow Wade, Orr & Reno, P.A. for the plaintiff. Arnold Rosenblatt and Daphne Lessard, Cook, Little, Rosenblatt and Manson for defendant.

Criminal Law

State v. Fournier, No. 2008-616
March 19, 2009
Vacated and remanded

Interlocutory appeal on whether courtís failure to comply with statutorily defined mandatory time limits divests it of authority to act in defendantís case, thereby requiring dismissal of petition for involuntary commitment.

A convicted sex offender filed a motion to dismiss a petition for involuntary civil commitment as a sexually violent predator due to the courtís failure to conduct a probable cause hearing within ten days of the Stateís filing a petition or conducting a trial within 60 days of the request for trial in violation of the time limits imposed by statute. The Superior Court denied the motion.

Applying the rules of statutory construction, the Court determined that when liberty interests are at issue and the legislature has mandated time limits for holding hearings, personal jurisdiction over a defendant is lost if the case is not heard within the time limit. This is not the case, however, when the legislature prescribes time limits to hasten adjudicative dispositions for the benefits of the parties.

The purpose of RSA 135-E is to create a civil commitment procedure for the long-term care of sexually violent predators. The Court states that the entire chapter indicates that the legislature intended proceedings for civil commitment to be completed prior to the expiration of the subjectís incarceration. Each stage of the commitment process has mandated time constraints indicating clear legislative intent. This is further reinforced by the "emergency" provisions with accelerated procedure. The emphasis on time limits for this process illustrates an overriding concern for "expeditious resolution" of an involuntary petition. Also, the fact that the statute states specifically that the time limitations in the emergency procedure are not jurisdictional indicates that in the other procedures, the time limits are considered jurisdictional. The Court disregards cases cited by the State because they did not involve a liberty interest.

Due to evidence that the defendant may have caused some of the delay in this matter, the Court remanded the case for further proceedings.

Lisa L. Wolford for defendant. Kelly a. Ayotte (Glenn A. Perlow) for the State.

State v. Ata, No. 2007-540
March 5, 2009

Whether the trial court erred in permitting the State to introduce inculpatory statements made by co-defendant.

The defendant was convicted of receiving stolen property, burglary and conspiracy to commit burglary. He appealed a jury verdict contending that the trial court erred in permitting the State to introduce statement made by a co-defendant claiming that his right to confrontation was denied.

The defendant argued that because his accomplice claimed that he could not remember the details of the crimes during the trial, he was therefore "unavailable" for cross-examination. The Court disagreed, relying on the U.S. Supreme Court, in concluding that a declarantís appearance at trial removes all Confrontation Clauses constraints upon the use of prior testimonial statements.

On the question of the right to produce all proofs favorable under the New Hampshire Constitution, the Court states: "While a declarantís lack of memory may thwart the cross-examination the defendant wishes to attempt, the fact remains that the delcarant is present to be examined." A defendantís right is to produce witnesses, not to produce their testimony.

Theodore Lothstein for the defendant. Kelly Ayotte (Thomas E. Bocian) for the state.

Family Law

In the matter of Joni Guy and Daniel R. Guy, No. 2008-186
March 5, 2009
Reversed in part, vacated in part, remanded.

Whether the trial court erred in granting petitioner a fault-based divorce.

Wife filed a divorce action based upon fault grounds. The trial court granted petitionerís divorce on the ground that the respondent had treated her in a manner to seriously injure her health or endanger her reason. Respondent husband appealed and wife cross appealed asserting an error with respect to the division of marital assets. The Court reviewed the history of RSA 458:7, V providing for a divorce on the basis of endangering health or reason, noting that the language of the current statute is "nearly identical to the statute initially enacted in 1840."

The sole test for a cause of action for divorce on this ground is whether the behavior proved has in fact seriously injured health or endangered reason. The health or reason of the complaining spouse must actually be affected. Here, as a result of reading email communications from a former girlfriend of respondent, the petitioner felt "angry, upset and distraught". The court determined that this kind of effect upon physical and mental health was insufficient, as a matter of law, to sustain a divorce on fault grounds. Because the trial court considered respondentís fault when dividing the partiesí assets, the property division was vacated and the matter remanded for further proceedings.

Francis G. Holland for the petitioner. William Aivalikles for respondent.

In the matter of Jamie M. Huff and Lawrence R. Huff, No. 2008-326
March 5, 2009
Reversed and remanded

Whether the trial court erred in adopting a parenting plan of respondent if he can not exercise that plan.

This divorce matter involved determining custody and visitation for an eighteen month old child of the marriage. The Ossipee family division adopted a parenting plan submitted by the respondent father, who was incarcerated. Both his plan and the petitionerís plan called for respondent to have the same amount of actual parenting time with the child. In contradiction of the petitionerís plan, and the guardian ad litem recommendations, the respondentís plan delegated visitation to an unrelated third party.

The Court had previously held that custody cannot be awarded to an unrelated third party over the objections of a fit parent. Here, the trial court did not expressly grant visitation to an unrelated third party, but to an incarcerated father who delegated it. The Court considered the effects of incarceration on parental rights and responsibilities. When one parent in incarcerated and the other parent is fit, the incarcerated parent may not designate third party caregivers. The Court states that where both parents are fit, a trial court may only award the incarcerated parent that visitation time which he can actually exercise. Time allocated to an incarcerated parent that goes beyond that is equivalent to awarding an unrelated third party visitation rights. The Court held that the trial court exceeded its statutory authority and remanded the case for further proceedings.

Steven J. Minutelli for petitioner. Leslie H. Johnson for the respondent.

Landlord Tenant

Daniel Zorn v. George Demetri, Nashua District Court No. 2008-402
March 18, 2009

Whether the district court erred in determining that defendants were not "landlords" as that term is defined by statute.

The plaintiffs rented a single family home of defendants. After vacating the home, they brought suit alleging statutory violations relative to security deposits. The Nashua District Court ruled that the statutory provisions governing security deposits did not apply to the defendants as they were not "landlords" under RSA 540-A:5 (2007).

The Court summarized the standard for statutory interpretation. The interpretation of statute is a question of law which is reviewed de novo. The Court will look at the language of that statute and apply ordinary meaning so to effectuate its overall purpose and will avoid an absurd or unjust result.

In determining whether the statutory provisions regarding security deposits applied to the defendants, the Court had to consider what was meant by "rental property" in the statutory definition of landlord. In the context of the "statutory scheme and in light of the apparent legislative intent", the Court held that the term "rental property" did not apply to a vacation home rented by the owner. A person who rents one single-family residence and also rents a single family vacation home is not required to comply with the statutory restrictions on security deposits.

Dennis Hogan for plaintiffs. Eaton W. Tarbell, III, Tarbell & Brodich P.A. for defendants.

Gemma Dreher is senior counsel for the BAE Systems Electronics and Integrated Solutions Operating Group. She provides advice/services concerning legal matters and represents the Operating Group in adversary proceedings and serves as a consultant to management. She speaks frequently on the subject of intellectual property management, licensing technology and open source software licensing. Attorney Dreher received her JD from Northeastern University School of Law and lives in Francestown, NH with her husband Rhon and five children.


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