United States District Court, D. New Hampshire
case now consists of six claims against two defendants, the
Oak Brook Condominium Owners' Association and Gerard
Dufresne. In an order dated January 25, 2018, plaintiff
Sanjeev Lath was directed to show cause why the three claims
he asserts in Counts 11(a), 12(a), and 15 should not be
dismissed pursuant to the litigation privilege as described
in Provencher v. Buzzell-Plourde Associates, 142
N.H. 848, 853 (1998). Lath has submitted his show cause
brief, document no. 272, and it is insufficient to save
Counts 11(a), 12(a), and 15.
preliminary matter, apart from listing Counts 11(a) and 12(a)
in a section heading in his brief, Lath says nothing about
those two claims. Thus, Lath has either waived or forfeited
the claims he asserted in Counts 11(a) and 12(a) and, as a
result, those two counts are dismissed. All that remains is
15 is “a common law claim for invasion of privacy
against Dufresne, for disclosure of private facts, i.e., a
confidential settlement agreement between Lath and a former
employer that Dufresne attached to a pleading in this
case.” Order (doc. no. 265) 16. Because Lath's
brief demonstrates some confusion concerning the factual
basis for Count 15, the court takes this opportunity to
chronicle the history of that claim in the context of the
case as a whole.
January of 2017, Lath filed a motion to amend his complaint.
In his proposed Second Amended Complaint (“SAC”),
to which he attached more than 340 exhibits, Lath devoted
more than 20 paragraphs to describing claims against
Dufresne, including a claim that Dufresne had publicly
disclosed private information about him. See SAC (doc. no.
48-1) ¶ 98.
that month, Barbara Belware moved to intervene in this case.
See doc. no. 51. While Lath's motion to amend and
Belware's motion to intervene were both pending, Dufresne
filed a pleading captioned “Amalgamated Replies of
Defendant Gerard Dufresne Filed in Response to Barbara
Belware's Motion to Intervene.” See doc. no. 68.
Given the content of that document, it would appear that
while Dufresne filed it in response to Belware's motion
to intervene, he used it to reply to both Belware's
motion and aspects of Lath's proposed SAC. In any event,
Dufresne attached a No. of exhibits to his Amalgamated
Replies, including: (1) three pages of a settlement agreement
between Lath and a former employer (from which Dufresne
redacted the amount of the settlement and some but not all of
the parties to the agreement); and (2) an e-mail by which
Lath had transmitted a copy of the settlement agreement to
Dufresne and another individual, whose name Dufresne
redacted. According to Dufresne's Amalgamated Replies,
the settlement agreement, and Lath's e-mail transmitting
it, demonstrate that while Lath's SAC accused him of
disseminating confidential information, Lath himself was
actively disseminating his own confidential information, such
as the settlement agreement.
request for a telephone conference that Lath filed after
Dufresne filed his Amalgamated Replies, Lath wrote:
Defendant Gerard Dufresne in his Objection to . . . Barbara
Belware's Motion to intervene disclosed [a] confidential
agreement between Lath and his previous employer. Lath
requests permission to file a supplement to his Second
Amended Complaint to add a claim of Invasion of Privacy -
disclosure of private facts by Defendant Gerard Dufresne.
Req. for Tel. Conf. (doc. no. 95) 2-3. The court granted Lath
the permission he sought, then granted his motion to amend,
and designated the new invasion of privacy claim as Count 15.
the court gave Lath permission to move for leave to add his
claim for invasion of privacy, Dufresne filed a motion asking
the court to appoint counsel to represent him. To that
motion, he attached, among other things, an e-mail exchange
between Lath and his attorney that Dufresne says he found on
Facebook. In that exchange, Lath and his attorney discussed a
draft of the settlement agreement that Dufresne had attached
to his Amalgamated Replies, and Lath's attorney explained
to him his obligation to keep the terms of the agreement
described the relevant factual background, the court turns to
the applicable legal principles, which the New Hampshire
Supreme Court has described in the following way:
It is well-settled in New Hampshire that “certain
communications are absolutely privileged and therefore immune
from civil suit.” Pickering v. Frink, 123 N.H.
326, 328 (1983); see McGranahan v. Dahar, 119 N.H.
758, 762-63 (1979). Statements made in the course of judicial
proceedings constitute one class of communications that is
privileged from liability in civil actions if the statements
are pertinent or relevant to the proceedings. See Pickering,
123 N.H. at 329; McGranahan, 119 N.H. at 763; cf. Supry
v. Bolduc, 112 N.H. 274, 276 (1972) (determining
statements made during a public hearing were not absolutely
privileged because the hearing did not have all the hallmarks
of a judicial proceeding). “A statement is presumed
relevant unless the person allegedly [injured] demonstrates
that it was so palpably irrelevant to the subject matter of
the controversy that no reasonable man can doubt its
irrelevancy or impropriety.” McGranahan, 119 N.H. at
766 (quotation omitted).
Provencher, 142 N.H. at 853 (emphasis added, parallel
citations omitted). “The requirement of pertinence
eliminates protection for statements made needlessly and
wholly in bad faith.” McGranahan, 119 N.H. at 763
(applying privilege to statements made in petition for
interpleader). Finally, not only does a party seeking to
defeat the litigation privilege bear the burden of rebutting
the presumption of relevancy, see McGranahan, 119 N.H. at
766, but, in addition, “[a]ll doubts are to be resolved
in favor of pertinency or relevancy, ” Id.
(citing Dachowitz v. Kranis, 401 N.Y.S.2d ...