2020-0005, Petition of New Hampshire Division of State Police

(“Northfield PD”), it ordered the Division — a nonparty — to produce a file police officer in the Town of Northfield, and the Northfield Police Department J.) erred when, in the course of litigation between Douglas Trottier, formerly a State Police (“the Division”) to determine whether the Superior Court (Kissinger, filed pursuant to Supreme Court Rule 11 by the New Hampshire Division of BASSET T, J. The court accepted this petition for original jurisdiction

orally), for the Town of Northfield Police Department. CullenCollimore, PLLC, of Nashua (Brian J.S. Cullen on the brief and

orally), for Douglas Trottier. Davis│ Hunt Law, PLLC, of Franklin (Brad C. Davis on the brief and

Hampshire Division of State Police. assistant attorney general, on the brief, and Mr. Broadhead orally), for the New Matthew T. Broadhead, senior assistant attorney general, and Jessica A. King, Gord o n J. MacDonald, attorney general (Daniel E. Will, solicitor general,

No. 2020 - 0005 Merrimack

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

a protective order to prevent disc overy of the pre - employment file. The and the August p. 2 22 order, fil ed a timely objection on September 6 and mov ed for The Division, a fter receipt on August 27 of a copy of the motion to compel

objection within 10 days of receipt of this order.” reconsider its order “if the [Division] file [s] a mot ion to reconsider and/or p. 2 2019, the t rial c ourt granted the motion to compel, ruling that it would Trottier did not issue a subpoena or give notice to the Division. On August 22, information would impact the Northfield PD’s ability to mount a defense. believed that the file contained information relevant to his claims, and that the background investigation file. He argu ed that he and the Northfield PD an assented - to motion to compel the Division to disclose his pre - employment (Supp. 2020). Instead, in his civil suit against the Northfield PD, Trottier filed suit under the Right - to - Know Law in the superior court. See RSA 91 - A:7 (2013 & Supp. 2020). Trottier did not challenge th e denial by filing a separate as one made under the Right - to - Know Law, and denied it. See RSA ch. 91 - A employment background investigation file. The Division construed th e request After filing his complaint, Trottier asked the Division for a copy of its pre -

Trottier’s lawsuit. Northfield PD. As previously noted, t he Division was not a named party in law enforcement agencies, and violated a prior agreement between him and the Division not to hire him, interfered with his employment prospects with other false representation about the “secret file” damaged his reputation, caused the that it had a “secret file” about Trottier. Trottier claims that the Northfield PD’s background investigation, the Northfield PD falsely represented to the Division with the Division and that, in the course of the Division ’s pre - employment complaint, Trottier allege s that, in p. 2 2018, he sought employment as a Trooper Trottier filed a complaint in superior court against the Northfield P D. In t he police officer with the Town of Barnstead Police Department. In May 2019, resigned in 2002. At some point thereafter, he was employed as a certified Trottier served as a police officer for the Northfield PD for eleven years until he The following facts are supporte d by the record or are undisputed.

shield ed from discovery, we affirm. the pre - employment background investigation file, and, therefore, the file is not prejudicial error. Because w e also hold that RSA 516: p. 3 36, II does not apply to opportunity to object to disclosure of the file, and, therefore, there was no that the trial court ultimately afforded the Division ample notice and the procedure for propounding discovery on a nonparty to a litigation — we find Although the parties never served the Division with a subpoena — the proper did not bar discovery of the pre - employment background investi gation file. It also argues that the court erred when it con cluded that RSA 516:36, II ( p. 2 2007) produce discovery without a proper “jurisdictional basis,” such as a subpoena. T he Division argues that the trial court erred because it ordered a nonparty to related to the Division ’s pre - employment background investigation of Trottie r. 3

p. 3 341. arbitrarily, unreasonably, or capriciously. See Petiti on of State, 169 N.H. at observance of the law, or unsustainably exercised its discretion or acted whether the court acted illegally with respect to jurisdiction, authority or trial court’s decision on a petition for writ of cer tiorari entails examining Lewandowski), 169 N.H. 340, 341 (2016); Sup. Ct. R. 11(1). Our review of the right, but rather at the c ourt’s discretion. Petition of State of N.H. (State v. Certiorari is an extraordinary remedy that is not granted as a matter of

therefore, we need not address the issue. investigations are exempt from disclosure” under the Right - to - Know Law, and, the parties challenge the trial court’s ruling that “pre - employment “internal investigation into the conduct of any officer.” RSA 516: p. 3 36, II. None of Division asserts that the file was not discoverable because the file relate s to an court had “no jurisdiction over” the Division to order production. Second, the the filing of a Right - to - Know Law petition naming the Division as a party, the investigation file. First, it argues that, without service of a valid subpoena or court erred when it ordered the Division to produce the pre - employment The Division raises two arguments in support of its position that the trial

See Sup. Ct. R. 11. motion to reconsider. The Division then filed this petition for writ of certiorari. advance, with notice to the [Division].” The trial court denied the Division ’s “in any public court filing or in open court absent approval by the Court in the file confidential and prohibited them from disclosing any portion of the file subject to a protective order. The protective order required the parties to keep investigation directly at issue, the court ordered the Division to produce the file that Trottier’s claims put any statements made during the pre - em ployment employment with the agency involved.” Given this conclusion, and the fact who are or were employed as police officers — not people who are seeking reasoned that RSA 516: p. 3 36, II applie s only to “internal investigations of people the distinct question of whether the file is subject to discover y. T he court are exempt from disclosure under the Right - to - Know Law, it needed to address explain ed that, although it agreed with the Division that pre - employment files 25. On October 29, it issued a written order and again grant ed t he motion. It The trial court held a hearing on Trottier’s motion to compel on October

discovery because of the statutory privilege established by RSA 51 6: p. 3 36, II. even if a subpoena were properly issued, the file would be exempt from civil Know Law. See RSA 91 - A:5, IV (2013). Alternatively, the Division argued that, to internal personnel practices, was exempt fr om disclosure under the Right - to - Law, RSA chapter 91 - A. It further argued that the file, as a record pertaining justifiable basis for compelling production of the file was the Right - to - Know nonparty and had not been served with a subpoena, the trial court’s only on October 10. In its pleadings, t he Division argued that, because it was a Northfield PD filed a reply on September 23, and the Division filed a surreply p. 4 4

e.g., Robbins v. Kalwall Corp., 120 N.H. p. 4 451, 452 - 53 (1980); Therrien v. is well established that a party may request discovery from a nonparty. See, of a valid subpoena, it ordered the Division to produce the investigation file. It T he Division next argues that the trial court erred when, in the absence

motion, the trial court did not err in adopting this approach. discovery request. Given the procedural history and the substance o f Trottier’s controlled by the Right - to - Know Law and, instead, construed the pleading as a that Trottier’s request should be construed as a Right - to - Know petition and such information.” In other words, the court rejected the Division’s argument RSA 91 - A:5,” that conclusion did “not end the inquiry in to the discoverability of investigations are exempt from disclosure under the Right to Know statute, reasoned that, although it agreed with the Division that “pre - employment Northfield PD’s defense of suc h claims. In ruling on the motion, t he trial court they believed it might contain information relevant to Trottier’s claims or the ongoing civil action, which specified that the parties sought the file because request for do cuments). Rather, Trottier simply filed a motion to compel in the Know Law filed in superior court after county officials denied petitioners’ (involving petition for declaratory judgment alleging violation of the Right - to - A:7; Lambert v. Belknap County Convention, 157 N.H. 375, 377 (2008) Know Law action in superior court seeking disclosure of the file. See RSA 91 denied Trottier’s request for the file, Trottier never brought a separate Right - to - [chapter] 91 - A.” After the Division, relying upon the Right - to - Know Law, that the records sought are . . . exempt from production pursuant to RSA that the trial court erred when it did not “end [] its analysis at its conclusion As an initial matter, we are not persuaded by the Division ’s argument

disclosure. framework and a meaningful opportunity to carry its burden of resisting either process, thereby depr i ving it of timely notice of the governing legal that the trial court did not afford it the procedural safeguards inherent in the Right - to - Know L aw or after service of a subpoena. The Division contends nonparty and ordered production of the file: pursuant to a petition filed unde r avenues by which the trial court could have exerted authority over it as a to produce the investigation file. It asserts that there are two procedural The Division fir st argues that the trial court lac ked authority to order it

untenable or unreasonable to its prejudice. See i d. underlying litigation, must demonstrate that the trial court’s ruling was clearly this standard in the context of this unique case, the Division, a nonparty to the discretion standard of review applies as we analyze the first issue. To satisfy therefore assume, without deciding, that our unsustainable exercise of apply th is standard when deciding the first issue raised in its petition. W e N.H. 73 p. 5 5, 738 (2013). T he Division — the nonprevailing party — asks us to an unsustainable exercise of discretion standard. Petition of Stompor, 165 We review a trial court’s decisions on the management of discovery under 5

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

to oppose disclosure. We disagree. prejudiced because it did not have timely notice and a meaningful o ppo rtunity p. 5 545 (1992) (quotation and brackets omitted). The Division argues that it was have been prejudicial to the party claiming it.” Giles v. Giles, 136 N.H. 540, way of subpoena. However, “[f]or an error to require reversal on appeal, it must file despite the fact that it had not receive d notice of the discovery request by therefore erred when it required the Division to produce the pre - employmen t trial court’s initial order grant ing the motion to compel. The trial court Division was unaware of the discovery request prior to receiving a copy of the Here, a valid subpoena was never served on the Division. Indeed, the

R. 29(e) (governing motions to compel). compel an answer or production. See Super. Ct. R. 26(k); see also Super. Ct. may, after providing notice to all persons affected, request that the court deposition question or provide requested materials, the party seeking discovery its behalf. Id. If, after serv ice of a subpoena, a deponent refuses to answer a officers, directors, managing agents, or other persons who consent to testify on agency, a party must advise the nonparty of its duty to designate one or more Ct. R. 26(m). And, when serving a subpoena on a nonparty governmental describe the matters for examination with “reasonable particularity.” Super. If a party names a governmental agency as the deponent, the subpoena must party must also provide the deponent with travel and attendance fees. See id. by serv ing the deponent in - hand with a n attested copy. RSA p. 5 516:5 (2007). The provide notice to the deponent, either by read ing the subpoena to him or her or 26(d); see also 4 MacDonald, supra § 27.07(1)(c), at 27 - 5. The party must testimony or the materials designated for production. RSA 516:1; Super. Ct. R. witness’s name, the date and location of the deposition, and the subject of the 2014). Specifically, the subpoena must bear the caption of the case, the Hampshire Civil Practice and Procedure § 27.07 (1)(c), at 27 - 4 to 27 - 5 (4th ed. see also 4 Gordon J. MacDonald, New Hampshire Practice: Wiebusch on New RSA 516:1 and must be signed by a justice or notary. RSA 516:1 (2007), :4; subpoena issued for either purpose mu st conform with the form set forth in materials at the deposition. See RSA 516:4 (2007); Super. Ct. R. 26 (d). A subpoena duces tecum to require production of certain documents or other serve a nonparty with a subpoena to provide deposition testimony and with a To facilitate third - party discovery u nder New Hampshire law, a party may

App. 201 p. 6 6). Ill. 1997); Yidi, L.L.C. v. JHB Hotel, L.L.C., 70 N.E.3d 1231, 1238 (Ohio Ct. Bueker v. Atchison, Topeka and Santa Fe Ry. Co., 17 p. 5 5 F.R.D. 291, 292 (N.D. Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir. 2010); for the party to serve the nonparty with a subpoena. See, e.g., Jules Jordan Company, 99 N.H. 197, 199 - 200 (1954). The proper procedure for doing so is 6

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

issued or served. conclude that the Division did not suf fer prejudice because a subpoena was not was materially equivalent to that afforded by the formal subpoena process, we court ultimately afforded the Division notice and opportunity to be heard that 51 p. 6 6:36, II and it s application to the pre - employment file. Because the trial Division raised several additional arguments regarding the construction of RSA motion to compel as a discovery request. I n its motion to reconsider, the that the Right - to - Know Law should control and clarif ied that it viewed the I n its October 29 order, the trial court rejected the Division ’s argument

history. history. It was accomp anied by a voluminous exhibit containing legislative on the interpret ation of RSA 51 p. 6 6:36, II, including a discussion of legislative undiscoverable pursuant to RSA 516:36, II. The bulk of the sur reply focused had been properly served, the background investigation file would have been motion to compel under the Right - to - Know Law. I t also argued that, even if it Division raised the additional argument that the trial court must analyze the exempt from public disclosure under RSA 91 - A:5, IV. In its surreply, the the file was shielded from discovery under RSA 516:36, II, and that it was chapter 91 - A. In its objection to the August 22 order, the Division argued that arguments in the trial court implicating both the civil discovery rules and RSA Nevertheless, the Division had the opportunity to — and in fact did — advance motion to compel under civil discovery rules or under the Right - to - Know Law. To be sure, at the outset it was un clear whether the court analyzed the

surreply, and allowed the parties to present oral argument s. the court considered the Division ’s written objection, permitted the filing of a compel on August 22, th e order was conditional. Befor e ruling on October 29, to be heard in opposition. Although the court initially granted the motion to Moreover, t he trial court provided the Division with several opportunit ies

R. 13(a). The Division objected wit hin that timeframe. the time period set forth in the civil rules for filing an objection. See Super. Ct. ten days from the receipt of the order to file an objection — which is identical to particul arity.” The order granting the motion alerted the Division that it had background investigation file regarding [Trottier]” — with “reasonable and identified the material sought to be discovered — “the pre - employment order’s issuance. The motion briefly described the nature of Trottier’s lawsuit motion to compel with the trial court’s initial order within five days of the p. 7 7

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

or unjust result. Id. Moreover, we do not consider words and phrases in parts of a statute together to effectuate its overall purpose and avoid an absurd add language that the legislature did not see fit to include. Id. We construe all statute as written and will not consider what the legislature might have said or to its plain and ordinary meaning. Id. We interpret legislative intent from the language of the statute itself, and, if possible, construe that langua ge according a whole. Petition of Carrier, 165 N.H. p. 7 719, 721 (2013). We first look to the intent of the legislature as expressed in the words of the statute considered as In matters of statutory interpretation, we are the final arbiter of the

omitted). is de novo.” Petition of N.H. Sec’y of State, 1 p. 7 71 N.H. 728, 734 (2019) (citation as here, the court’s ruling is based on its construction of a statute, our review deferentially under our unsustainable exercise of discretion standard, where, trial court decisions regarding discovery management and related issues background investigation file from discovery. “Although we generally review when it ruled that RSA 516:36, II does not shield the pre - employment We turn now to the second issue on appe al: whether the trial court erred

unreasonable to its prejudice. See Petition of Stompor, 165 N.H. at p. 7 738. 1 failed to show that the trial court’s ruling was clearly untenable or investigation file i s maintained. Accordingly, w e conclude that the Division has 456 (1993). Notably, t he court also ensured that the confidentiality of the process: “notice and opportunity to be heard.” King v. Mosher, 137 N.H. 453, the Division because it was provided with the fundamental requirements of due produce discovery without service of a subpoena, the ruling did not prejudice In sum, a lthough the trial court erred when it compell ed the Division to

Division to show why the file was not discoverable. relevancy on Trottier and the Northfield PD, properly shifted the burden to the T herefore, the trial court, after impos ing the initial burden of establishing asserting a privilege has the burden of showing that the privilege applies.”). Violette), 1 p. 8 83 F.3d p. 7 71, 73 (1st Cir. 1999) (“A s a general matter, a party any matter, not privileged. . . .”); In re Grand Jury Proceedings (Gregory P. 516:36, II. See Super. Ct. R. 21(b) (“[P]arties may obtain discovery regarding several opportunit ies to persuad e it that the file is privileged under RSA ruling.” (quotation omitted)). The trial court thereafter afforded the Division the trial court made subsidiary findings necessary to support its general the Matter of Aube & Aube, 158 N.H. 459, 466 (2009) (“We must assume that to lead to the discovery of admissible evidence.” Super. Ct. R. 21(b); see also In matter” of the pending action and that the request was “reasonably calculated 8

meaning of the phrase “internal personnel practices,” see Clay, 169 N.H. at 6 p. 8 86 - 88; Reid, 169 N.H. at 517, 522 - 26. B oth cases interpreted the plain separate statutory scheme of the Right - to - Know Law. See Clay, 169 N.H. at personnel practices,” as used in a different statute, RSA 91 - A:5, IV, within the and Reid each involved the interpretation of a different phrase, “internal 169 N.H. 509 (2016). However, its reliance on these cases is misplaced. Clay Dover, 169 N.H. 681 (2017), and Reid v. N ew H ampshire Attorney Gen eral, In f urther support of its argument, t he Division reli es on Clay v. City of

II. 721, we decline to adopt the Division’s proposed construction of RSA 516:36, that the legislature did not see fit to include,” Petition of Carrier, 165 N.H. at enforcement agency. Id. Because we will not “add language [to the statute] investigation [s] into the conduct of any officer, employee, or agent” of a law employment with a law enforcement agency. Rather, it includes only “internal issue does not encompass investigations into “applicants” or “candidates” for of the statute does not support the Division ’s interpretation. The phrase at officer,” RSA 516:36, II. We disagree. The plain and unambiguous language employment investigation is an “internal investigation into the conduct of any its sole benefit and use in determining whether to hire Trottier, the pre - The Division contends that, because it conducted the investigation for

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

or part of the internal investigation. relate to the incident under investigation that are not generated by otherwise relevant records of the law enforcement agency which Nothing in this paragraph shall preclude the admissibility of action between the agency and its officers, agents, or employees. no t be admissible in any civil action ot her than in a disciplinary enforcement agency having the powers of a peace officer shall officer, employee, or agent of any state, county, or municipal law relating to any internal investigation into the conduct of any All records, reports, letters, memoranda, and other documents

RSA 516:36, II provides, in relevant part, that:

scheme. Id. in light of the policy or purpose sought to be advanced by the statutory us to better d iscern the legislature’s intent and to interpret statutory language isolation, but rather within the context of the statute as a whole, which enables p. 9 9

this case. parts of the file or limit access to the parties, see Super. Ct. R. 2 p. 9 9(a), just as the trial court did in scope of RSA 516:36, II, trial courts may enter protective orders that preclude disclosure of certain We observe that, although pre - employment background investigation files do not fall within the 2

N.H. 1 p. 9 98, 205 - 06 (2013). subject to constitutional limitations, to amend the statute.” State v. Dor, 165 legislature disagrees with our interpretation of RSA 516:36, II, “it is free, employment file is not within the scope of RSA 516:36, II. Of course, if the 2 was applying for such a position. We therefore conclude that the pre - Trottier was not an officer, employee, or agent of the Division — rather, he the investigating law enforcement agency. At the time of the investigation, relating to inquiries made into the conduct of an officer, employee, or agent of Accordingly, we interpret RSA 516:36, II as applying to doc uments

with in the agency. law enforcement officer of a law enforcement agency that are conducted investigation” to mean only those inquiries made or authorized by the chief conducted [within] . . . the company”). We th erefore construe “internal (unabridged ed. 2002) (offering the following example of this usage: “research compass of : not beyond.” Webster’s Third New International Dictionary 2627 therefore “indicate [s] enclosure or containment: as . . . in the limits or Id. (emphasis added). H ere, the word “within” functions as a preposition, and enforcement officer within a law enforcement agency or authorized by him.” “internal investigation” as “any inquiry conducted by the chief law statutory definition of “internal investigation” in mind. RSA 516:36, II defines of a peace officer,” RSA 516:36, II, is broad, it must be construed with the of any state, county, or municipal law enforcement agency having the powers overall purpose. . . .”). Although the phrase “any officer, employee, or agent N.H. at 721 (“We construe all part s of a statute together to effectuate its fails to construe all parts of the statute together. See Petition of Carrier, 165 enforcement officer by another town. We reject this interpretation because it Northfield PD an d, at the time of the investigation, was employed as a law asserts that Trottier previously was employed as a police officer by the Trottier qualifies as “any officer” within the meaning of RSA 516:36, II. It The Division next argues that the statutory privilege applies because

civil litigation. See RSA 516:36, II. interpreting a statute that governs information sought for use in the course of Local Gov’t Ctr., 15 p. 9 9 N.H. 699, 709 (20 p. 10 10). By contrast, here, we are is to ensure “the transparency of government.” Prof’l Firefighters of N.H. v. information made pursuant to the Right - to - Know Law — the purpose of which in RSA 516:36, II. Moreover, both Clay and Reid involved request s for interpretation is governed by the statutory definition of “internal investig ation” 686 - 88; Reid, 169 N.H. at 522 - 23, whereas, as explained below, here our 10

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

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