Gray v. St. Martins Press

Opinion

Gray v. St. Martins Press CV-95-285-M 10/22/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert K. Gray, Plaintiff

v. Civil No. 95-285-M

St. Martin's Press, Inc. and Susan Trento, Defendants

O R D E R

On September 30, 1997, the Magistrate Judge issued a written

order, addressing several of the parties' non-dispositive

discovery motions. Among other things, he concluded that New

Hampshire's law of privilege (rather than federal privilege law)

governs this case. Defendants then moved the undersigned to

reverse that decision. The court concluded, however, that

defendants had failed to demonstrate that the Magistrate Judge's

factual findings were clearly erroneous or that his legal

conclusions were contrary to law (the court also concluded that

defendants had waived certain arguments which were raised for the

first time in their motion to reconsider).

Displeased with that result, defendants again ask the court

to revisit this discovery issue. For the reasons set forth

below, defendants' motion is denied.

Discussion I. Defendants' Motion is Untimely.

Defendants filed their motion to reconsider pursuant to

Local Rule 7.2(d), which provides that: "A motion to reconsider

an order of the court, other than a motion governed by Fed. R.

Civ. P. 59 or 60, shall be filed within ten (10) days from the

date of the order." The court's order on which defendants seek

reconsideration is dated June 2, 1998. Their motion to

reconsider was not filed until June 17, 1998. It is, therefore,

untimely. See Fed. R. Civ. P. 6.

II. Defendants' Motion Lacks Merit.

Even if the court were to address the merits of defendants'

motion, it would deny it. Reduced to simple form, defendants'

argument is as follows: (1) New York Times v. Sullivan, 376 U.S.

254 (1964), supplanted state libel law with a federal

constitutional rule; (2) Federal Rule of Evidence 501 provides

that state privilege law applies only in cases where state law

supplies an element of a claim or defense; and, therefore (3)

because a federal, rather than state, rule governs one of

defendants' affirmative defenses (i.e., no actual malice), the

federal common law of attorney-client privilege, rather than

state law, should apply.

Despite having vigorously argued this discovery issue for

over a year, defendants have not cited a single case directly

supporting their position. Given that this is a non-dispositive

2 issue (initially resolved over a year ago) , and counsel has not

pointed to any authority suggesting any clear error in the prior

ruling, a different result would not seem to be warranted at this

juncture.

In any event, a brief review of case law on point suggests

that the weight of authority is contrary to the position

advocated by defendants. For example, in his dissenting opinion

in Herbert v. Lando, 441 U.S. 153 (1979), Justice Brennan

observed:

The instant case is brought under diversity jurisdiction, 28 U.S.C. § 1332(a), and Fed. R. Evid. 501 states that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness [or] person . . . shall be determined in accordance with State law." Although New York Times Co. v. Sullivan, 376 U.S. 254 (1964), placed constitutional limits on state libel claims, it did not itself create a federal cause of action for libel. The "rule of decision" in this case, therefore, is defined by state law.

Id., at 182 (Brennan, J. dissenting) (emphasis supplied). So it

is in this case, and this court has so held. Because New

Hampshire's law of defamation provides the "rule of decision" in

this defamation action. Rule 501 dictates that New Hampshire,

rather than federal, rules of privilege apply. See Gray v. St.

Martin's Press, No. 95-285-M, slip op. at 4 (D.N.H. June 2,

1998). See also Star Editorial, Inc. v. U.S. Dist. Court for the

Cent. Dist. of California, 7 F.3d 856, 859 (9th Cir. 1993) ("This

defamation action was brought by [plaintiff] against [defendant]

3 in California Superior Court. Then, based on diversity of

citizenship, it was removed to federal court. State law will

clearly provide the rule of decision. Thus, it is clear that the

existence and extent of the claimed privilege is controlled by

California law.").

For the foregoing reasons, defendants' motion for

reconsideration (document no. 138) is denied.

SO ORDERED

Steven J. McAuliffe United States District Judge

October 22, 1998

cc: James G. Walker, Esg. Mark D. Balzli, Esg. Cletus P. Lyman, Esg. William L. Chapman, Esg. John C. Lankenau, Esg. Steven M. Gordon, Esg. Seth L. Rosenberg, Esg.