Petition of New Hampshire Division of State Police

P
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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________

Merrimack
No. 2020-0005


         PETITION OF NEW HAMPSHIRE DIVISION OF STATE POLICE

                            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


                                          2
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 (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

.


                                         3
       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 (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 (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 conclusion did “not end the inquiry into the discoverability of
such information.” In other words, the court rejected the Division’s argument
that Trottier’s request should be construed as a Right-to-Know petition and
controlled by the Right-to-Know Law and, instead, construed the pleading as a
discovery request. Given the procedural history and the substance of Trottier’s
motion, the trial court did not err in adopting this approach.

       The Division next argues that the trial court erred when, in the absence
of a valid subpoena, it ordered the Division to produce the investigation file. It
is well established that a party may request discovery from a nonparty. See,
e.g., Robbins v. Kalwall Corp., 

120 N.H. 451

, 452-53 (1980); Therrien v.


                                         4
Company, 

99 N.H. 197

, 199-200 (1954). The proper procedure for doing so is
for the party to serve the nonparty with a subpoena. See, e.g., Jules Jordan
Video, Inc. v. 144942 Canada Inc., 

617 F.3d 1146

, 1158 (9th Cir. 2010);
Bueker v. Atchison, Topeka and Santa Fe Ry. Co., 

175 F.R.D. 291

, 292 (N.D.
Ill. 1997); Yidi, L.L.C. v. JHB Hotel, L.L.C., 

70 N.E.3d 1231

, 1238 (Ohio Ct.
App. 2016).

       To facilitate third-party discovery under New Hampshire law, a party may
serve a nonparty with a subpoena to provide deposition testimony and with a
subpoena duces tecum to require production of certain documents or other
materials at the deposition. See RSA 516:4 (2007); Super. Ct. R. 26(d). A
subpoena issued for either purpose must conform with the form set forth in
RSA 516:1 and must be signed by a justice or notary. RSA 516:1 (2007), :4;
see also 4 Gordon J. MacDonald, New Hampshire Practice: Wiebusch on New
Hampshire Civil Practice and Procedure § 27.07(1)(c), at 27-4 to 27-5 (4th ed.
2014). Specifically, the subpoena must bear the caption of the case, the
witness’s name, the date and location of the deposition, and the subject of the
testimony or the materials designated for production. RSA 516:1; Super. Ct. R.
26(d); see also 4 MacDonald, supra § 27.07(1)(c), at 27-5. The party must
provide notice to the deponent, either by reading the subpoena to him or her or
by serving the deponent in-hand with an attested copy. RSA 516:5 (2007). The
party must also provide the deponent with travel and attendance fees. See

id.
If a party

names a governmental agency as the deponent, the subpoena must
describe the matters for examination with “reasonable particularity.” Super.
Ct. R. 26(m). And, when serving a subpoena on a nonparty governmental
agency, a party must advise the nonparty of its duty to designate one or more
officers, directors, managing agents, or other persons who consent to testify on
its behalf.

Id. If, after service

of a subpoena, a deponent refuses to answer a
deposition question or provide requested materials, the party seeking discovery
may, after providing notice to all persons affected, request that the court
compel an answer or production. See Super. Ct. R. 26(k); see also Super. Ct.
R. 29(e) (governing motions to compel).

       Here, a valid subpoena was never served on the Division. Indeed, the
Division was unaware of the discovery request prior to receiving a copy of the
trial court’s initial order granting the motion to compel. The trial court
therefore erred when it required the Division to produce the pre-employment
file despite the fact that it had not received notice of the discovery request by
way of subpoena. However, “[f]or an error to require reversal on appeal, it must
have been prejudicial to the party claiming it.” Giles v. Giles, 

136 N.H. 540

,
545 (1992) (quotation and brackets omitted). The Division argues that it was
prejudiced because it did not have timely notice and a meaningful opportunity
to oppose disclosure. We disagree.

      Although the Division did not receive notice by way of the subpoena
process, it did receive adequate notice. The Division received a copy of the


                                        5
motion to compel with the trial court’s initial order within five days of the
order’s issuance. The motion briefly described the nature of Trottier’s lawsuit
and identified the material sought to be discovered — “the pre-employment
background investigation file regarding [Trottier]” — with “reasonable
particularity.” The order granting the motion alerted the Division that it had
ten days from the receipt of the order to file an objection — which is identical to
the time period set forth in the civil rules for filing an objection. See Super. Ct.
R. 13(a). The Division objected within that timeframe.

      Moreover, the trial court provided the Division with several opportunities
to be heard in opposition. Although the court initially granted the motion to
compel on August 22, the order was conditional. Before ruling on October 29,
the court considered the Division’s written objection, permitted the filing of a
surreply, and allowed the parties to present oral arguments.

       To be sure, at the outset it was unclear whether the court analyzed the
motion to compel under civil discovery rules or under the Right-to-Know Law.
Nevertheless, the Division had the opportunity to — and in fact did — advance
arguments in the trial court implicating both the civil discovery rules and RSA
chapter 91-A. In its objection to the August 22 order, the Division argued that
the file was shielded from discovery under RSA 516:36, II, and that it was
exempt from public disclosure under RSA 91-A:5, IV. In its surreply, the
Division raised the additional argument that the trial court must analyze the
motion to compel under the Right-to-Know Law. It also argued that, even if it
had been properly served, the background investigation file would have been
undiscoverable pursuant to RSA 516:36, II. The bulk of the surreply focused
on the interpretation of RSA 516:36, II, including a discussion of legislative
history. It was accompanied by a voluminous exhibit containing legislative
history.

      In its October 29 order, the trial court rejected the Division’s argument
that the Right-to-Know Law should control and clarified that it viewed the
motion to compel as a discovery request. In its motion to reconsider, the
Division raised several additional arguments regarding the construction of RSA
516:36, II and its application to the pre-employment file. Because the trial
court ultimately afforded the Division notice and opportunity to be heard that
was materially equivalent to that afforded by the formal subpoena process, we
conclude that the Division did not suffer prejudice because a subpoena was not
issued or served.

      In arguing for a contrary conclusion, the Division asserts that it was
prejudiced because the trial court improperly imposed the initial burden of
proof on it to show why the file was not discoverable. We disagree with the
Division’s characterization of what transpired in the trial court. In its August
22 order, the trial court impliedly found that Trottier and the Northfield PD had
met their initial burden of showing that the file was “relevant to the subject


                                         6
matter” of the pending action and that the request was “reasonably calculated
to lead to the discovery of admissible evidence.” Super. Ct. R. 21(b); see also In
the Matter of Aube & Aube, 

158 N.H. 459

, 466 (2009) (“We must assume that
the trial court made subsidiary findings necessary to support its general
ruling.” (quotation omitted)). The trial court thereafter afforded the Division
several opportunities to persuade it that the file is privileged under RSA
516:36, II. See Super. Ct. R. 21(b) (“[P]arties may obtain discovery regarding
any matter, not privileged . . . .”); In re Grand Jury Proceedings (Gregory P.
Violette), 

183 F.3d 71

, 73 (1st Cir. 1999) (“As a general matter, a party
asserting a privilege has the burden of showing that the privilege applies.”).
Therefore, the trial court, after imposing the initial burden of establishing
relevancy on Trottier and the Northfield PD, properly shifted the burden to the
Division to show why the file was not discoverable.

       In sum, although the trial court erred when it compelled the Division to
produce discovery without service of a subpoena, the ruling did not prejudice
the Division because it was provided with the fundamental requirements of due
process: “notice and opportunity to be heard.” King v. Mosher, 

137 N.H. 453

,
456 (1993). Notably, the court also ensured that the confidentiality of the
investigation file is maintained. Accordingly, we conclude that the Division has
failed to show that the trial court’s ruling was clearly untenable or
unreasonable to its prejudice. See Petition of 

Stompor, 165 N.H. at 738

.1

       We turn now to the second issue on appeal: whether the trial court erred
when it ruled that RSA 516:36, II does not shield the pre-employment
background investigation file from discovery. “Although we generally review
trial court decisions regarding discovery management and related issues
deferentially under our unsustainable exercise of discretion standard, where,
as here, the court’s ruling is based on its construction of a statute, our review
is de novo.” Petition of N.H. Sec’y of State, 

171 N.H. 728

, 734 (2019) (citation
omitted).

       In matters of statutory interpretation, we are the final arbiter of the
intent of the legislature as expressed in the words of the statute considered as
a whole. Petition of Carrier, 

165 N.H. 719

, 721 (2013). We first look to the
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning.

Id. We interpret legislative

intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include.

Id. We construe all

parts of a statute together to effectuate its overall purpose and avoid an absurd
or unjust result.

Id. Moreover, we do

not consider words and phrases in

1 To the extent the Division also argues that it was prejudiced because it was “deprived of an
opportunity” to designate someone to testify on its behalf under Superior Court Rule 26(m), we
disagree. Not only has the Division failed to explain how it was prejudiced, but the Division will
likely have the opportunity to designate such an individual on remand.


                                                 7
isolation, but rather within the context of the statute as a whole, which enables
us to better discern the legislature’s intent and to interpret statutory language
in light of the policy or purpose sought to be advanced by the statutory
scheme.

Id.

RSA 516:36, II

provides, in relevant part, that:

      All records, reports, letters, memoranda, and other documents
      relating to any internal investigation into the conduct of any
      officer, employee, or agent of any state, county, or municipal law
      enforcement agency having the powers of a peace officer shall
      not be admissible in any civil action other than in a disciplinary
      action between the agency and its officers, agents, or employees.
      Nothing in this paragraph shall preclude the admissibility of
      otherwise relevant records of the law enforcement agency which
      relate to the incident under investigation that are not generated by
      or part of the internal investigation.

RSA 516:36, II (emphases added). The Division argues first that the pre-
employment file falls within the scope of the privilege because it relates to an
“internal investigation into the conduct of any officer,” and, second, that RSA
516:36, II prohibits the discovery of documents as well as their admission into
evidence. Because our interpretation of the scope of the statute is dispositive,
we need not address the Division’s second argument.

       The Division contends that, because it conducted the investigation for
its sole benefit and use in determining whether to hire Trottier, the pre-
employment investigation is an “internal investigation into the conduct of any
officer,” RSA 516:36, II. We disagree. The plain and unambiguous language
of the statute does not support the Division’s interpretation. The phrase at
issue does not encompass investigations into “applicants” or “candidates” for
employment with a law enforcement agency. Rather, it includes only “internal
investigation[s] into the conduct of any officer, employee, or agent” of a law
enforcement agency.

Id. Because we will

not “add language [to the statute]
that the legislature did not see fit to include,” Petition of 

Carrier, 165 N.H. at
721

, we decline to adopt the Division’s proposed construction of RSA 516:36,
II.

      In further support of its argument, the Division relies on Clay v. City of
Dover, 

169 N.H. 681

(2017), and Reid v. New Hampshire Attorney General,

169 N.H. 509

(2016). However, its reliance on these cases is misplaced. Clay
and Reid each involved the interpretation of a different phrase, “internal
personnel practices,” as used in a different statute, RSA 91-A:5, IV, within the
separate statutory scheme of the Right-to-Know Law. See 

Clay, 169 N.H. at
686-88

; 

Reid, 169 N.H. at 517

, 522-26. Both cases interpreted the plain
meaning of the phrase “internal personnel practices,” see 

Clay, 169 N.H. at

8

686-88; 

Reid, 169 N.H. at 522-23

, whereas, as explained below, here our
interpretation is governed by the statutory definition of “internal investigation”
in RSA 516:36, II. Moreover, both Clay and Reid involved requests for
information made pursuant to the Right-to-Know Law — the purpose of which
is to ensure “the transparency of government.” Prof’l Firefighters of N.H. v.
Local Gov’t Ctr., 

159 N.H. 699

, 709 (2010). By contrast, here, we are
interpreting a statute that governs information sought for use in the course of
civil litigation. See RSA 516:36, II.

       The Division next argues that the statutory privilege applies because
Trottier qualifies as “any officer” within the meaning of RSA 516:36, II. It
asserts that Trottier previously was employed as a police officer by the
Northfield PD and, at the time of the investigation, was employed as a law
enforcement officer by another town. We reject this interpretation because it
fails to construe all parts of the statute together. See Petition of 

Carrier, 165
N.H. at 721

(“We construe all parts of a statute together to effectuate its
overall purpose . . . .”). Although the phrase “any officer, employee, or agent
of any state, county, or municipal law enforcement agency having the powers
of a peace officer,” RSA 516:36, II, is broad, it must be construed with the
statutory definition of “internal investigation” in mind. RSA 516:36, II defines
“internal investigation” as “any inquiry conducted by the chief law
enforcement officer within a law enforcement agency or authorized by him.”


Id. (emphasis added). Here,

the word “within” functions as a preposition, and
therefore “indicate[s] enclosure or containment: as . . . in the limits or
compass of : not beyond.” Webster’s Third New International Dictionary 2627
(unabridged ed. 2002) (offering the following example of this usage: “research
conducted [within] . . . the company”). We therefore construe “internal
investigation” to mean only those inquiries made or authorized by the chief
law enforcement officer of a law enforcement agency that are conducted
within the agency.

       Accordingly, we interpret RSA 516:36, II as applying to documents
relating to inquiries made into the conduct of an officer, employee, or agent of
the investigating law enforcement agency. At the time of the investigation,
Trottier was not an officer, employee, or agent of the Division — rather, he
was applying for such a position. We therefore conclude that the pre-
employment file is not within the scope of RSA 516:36, II.2 Of course, if the
legislature disagrees with our interpretation of RSA 516:36, II, “it is free,
subject to constitutional limitations, to amend the statute.” State v. Dor, 

165
N.H. 198

, 205-06 (2013).


2 We observe that, although pre-employment background investigation files do not fall within the
scope of RSA 516:36, II, trial courts may enter protective orders that preclude disclosure of certain
parts of the file or limit access to the parties, see Super. Ct. R. 29(a), just as the trial court did in
this case.


                                                   9
       In sum, because the Division received notice and opportunity to be heard
equivalent to that afforded by the formal subpoena process, we conclude that
the Division was not prejudiced when, in the absence of service of a subpoena,
the trial court ordered the Division to produce the pre-employment
investigation file. We also conclude that the file is not within the scope of RSA
516:36, II, and, therefore, the trial court did not err when it ruled that the file
was discoverable.
                                                          Affirmed.


      HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.




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