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Lath v. Oak Brook Condominium Owners' Association

United States District Court, D. New Hampshire

March 1, 2018

Sanjeev Lath
v.
Oak Brook Condominium Owners' Association and Gerard Dufresne

          ORDER

          LANDYA MACCAFFERTY JUDGE

         This 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.

         As a 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 Count 15.

         Count 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.

         In 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.[1]

         Later 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.

         In a 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.

         After 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 confidential.

         Having 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 ...


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