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Samuel J. Bourne v. John R. Arruda

July 16, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge


Currently before the court is plaintiff Samuel Bourne's motion (doc. no. 110), which seeks partial reconsideration of the order (doc. no. 105) denying his motion to compel, with respect to documents that this court found to be privileged and not discoverable. Defendants have objected (doc. no. 111) to Bourne's motion for reconsideration (doc. no. 110).

Also before the court is plaintiff's self-styled "Notice of Full Compliance with Court Order" (doc. no. 120) (hereinafter "Notice"). Both matters are addressed below.


I. Nonconforming Document (doc. no. 120)

Bourne's Notice (doc. no. 120) consists of his response to defendants' Interrogatory No. 15 and to a document production request propounded upon Bourne. The court had granted defendants' motion to compel and had directed him to serve those responses upon defendants. See Order (doc. no. 119). Pursuant to Fed. R. Civ. P. 5(d)(1), such discovery requests and responses shall not be filed until used in the proceeding, unless the court otherwise orders. Here, the court has not granted Bourne leave to file his discovery responses.

The court may order a discovery response to be stricken and removed from the docket, see Local Rule ("LR") 5.2, and the court now orders that Bourne's Notice (doc. no. 120) be so stricken and removed from the docket. This is the second time that Bourne's filing of a discovery response has caused the court to strike the filing, see Order (doc. no. 101). Being alerted twice to the pertinent rules, the court expects Bourne will not make the same filing error again.

II. Motion to Reconsider (doc. no. 110)

Local rule 7.2(e) requires a party moving for reconsideration to demonstrate that the relevant order "was based on a manifest error of fact or law." Bourne seeks partial reconsideration of this court's May 3, 2012, order denying his motion to compel ("May Order"), to the extent that the court found that documents sought by plaintiff and submitted to the court by defendants for in camera review, are privileged and not discoverable. Bourne's arguments in support of his motion (doc. no. 110) are addressed below.

A. Compelling Need

Bourne has asserted that the court erred in ruling that he failed to show a compelling justification for overriding the attorney-client privilege as to the documents at issue. Specifically, Bourne asserts that certain emails listed in the privilege log are relevant to his claim that the allegedly defamatory remarks were "preplanned," and that the factfinder's interest in a full disclosure of documents relevant to his claim of preplanning (including documents that could be used for impeachment) constitutes a compelling reason for overriding the privilege.

Under the New Hampshire rules that control the resolution of privilege issues in this case, "[r]elevance alone is not the standard for determining whether or not privileged materials should be disclosed." Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 611, 903 A.2d 952, 957 (2006). In other words, that a privileged attorney-client communication may include relevant information, and be valuable for impeaching a witness, is not a sufficient reason for overcoming the attorney-client privilege, if the privilege has not been waived. Rather, the court may pierce such a privilege only if the party seeking the disclosure shows that there is a reasonable probability that the records at issue contain information that is relevant and material, that there is a compelling need or justification for disclosure, and that there is no alternative source of the same information.

See McGranahan v. Dahar, 119 N.H. 758, 764, 408 A.2d 121, 125 (1979); see also Desclos, 153 N.H. at 616, 903 A.2d at 960-61. Here, Bourne has failed to make any showing that the information he seeks is unavailable from other sources, and for that reason alone, the court could decline to reconsider its previous order. See Declos, 153 N.H. at 615, 903 A.2d at 960 (party seeking privileged documents must provide more than conclusory statements; it is not sufficient to argue that privileged information is "best source of evidence sought").

In addition, Bourne has failed to demonstrate any compelling justification for piercing the privilege. In evaluating a claim of a compelling justification, this court must consider whether there is a sufficiently important public interest at stake favoring disclosure. See id., 153 N.H. at 618, 903 A.2d at 962. The public interest underlying the attorney-client privilege is an interest in promoting frank discussions between attorneys and their clients for the purpose of promoting law-abiding behavior and reducing the social burden of unnecessary or improvident litigation and lawlessness. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (purpose is to encourage frank communication and to promote "broader public interests in the observance of law and administration of justice"); McGranahan, 119 N.H. at 764-65, 408 A.2d at 125. That interest is well-served by maintaining confidentiality ...

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