THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH, SS SUPERIOR COURT NORTHERN DISTRICT
New Hampshire Electric Cooperative, Inc.
v.
Consolidated Communications of Northern New England, LLC
Docket No. 216-2020-CV-00555
ORDER
Plaintiff brought this action against Defendant for breach of contract, breach of
the implied covenant of good faith and fair dealing, and unjust enrichment/quantum
meruit. Plaintiff also seeks a number of declaratory judgments pertaining to the timing,
effect, and scope of the termination of an agreement between the parties. Defendant
has filed a counterclaim, seeking its own declaratory judgments and alleging claims for
rescission (or reformation), breach of contract, breach of the implied covenant of good
faith and fair dealing, and unjust enrichment. Presently before the Court are
Defendants’ motions to compel (Doc. 106), for a voluntary non-suit (Doc. 91), and to
continue the trial and suspend the previous case structuring order (“CSO”) (Doc. 109).
Plaintiff objects. (Compel (Doc. 121); Non-suit (Doc. 101); Continue 125.)) The Court
held a hearing on August 21, 2023. As articulated at the hearing, and for the reasons
that follow, Defendants’ motions are GRANTED.
I. Motion to Compel
In its present motion, Defendant seeks “hard copy, original vegetation
management contractor invoices for the period between 2016 and March 2020.” (Doc.
106 at 1.) At the hearing, Plaintiff represented that it has already produced multiple large boxes of invoices from 2019 and 2020 and the remaining two boxes of invoices
contain invoices from 2016-2018, which is outside of its claimed damages period in the
case. Defendant maintains that it needs all the invoices to properly defend against
Plaintiff’s sought damages and to determine if there are inconsistencies among the
invoices.
At the hearing, the Court agreed with Defendant that although the remaining
documents’ probative value may be somewhat limited, the invoices nevertheless were
relevant to Defendant’s anticipated defense. See Super. Ct. R. 21(b) (“[P]arties may
obtain discovery regarding any matter, not privileged, that is relevant to the subject
matter involved in the pending action, whether it relates to the claim or defense of the
party seeking discovery or to the claim or defense of any other party.”). Specifically,
even invoices prior to 2019 may help bolster Defendant’s defense if the invoices
demonstrate a change over time compared to the most recent contractor invoices.
Especially in light of the New Hampshire Supreme Court’s preference for liberal
discovery, the Court finds that Defendant is entitled to the two remaining boxes of
contractor invoices. See Yancey v. Yancey, 119 N.H. 197, 198 (1979). Plaintiffs
agreed to produce these documents by September 8, 2023.
Defendant further contends that it is entitled to the two boxes of invoices free of
cost. In support thereof, Defendant argues that throughout the pending litigation, each
party has paid for its own production of materials. Further, Defendant points out that
Plaintiff should have turned over these documents as part of its automatic disclosures or
at the very latest, in response to Defendant’s first request for production of documents.
Plaintiff informed the Court at the hearing that it would roughly cost between $6,000 and
2 $8,000 to produce the remaining invoices. Specifically, Plaintiff explained that the hard
copies will be converted into a digital format and thus delivered to Defendant
electronically. Plaintiff asserts that Defendant should share the cost of production
because of the amount of labor involved and Defendant’s delay in obtaining the
documents.
The Court agrees with Plaintiff. Courts have broad discretion in allocating
discovery costs. See Johnston by Johnston v. Lynch, 133 N.H. 79, 97 (1990) (finding
that the trial court was within its discretion to order plaintiffs to pay the cost of additional
depositions). The Court acknowledges, as Plaintiff points out, this litigation has been
on-going for over three years and the saga over these particular records has dragged
on for months. The Court will briefly recount Defendants’ attempts to obtain the
invoices to illustrate why Defendant should share the cost of production with Plaintiff.
On December 28, 2020, Plaintiff delivered documents to Defendant as part of its
automatic disclosures but did not include the contractor invoices. On February 11,
2021, Defendant sent Plaintiff the following request for production: “All communications
and documents exchanged between [Plaintiff] and third-party contractors describing
[Plaintiff’s] maint[enance] re-clearing, storm damage cleanup and/or hazard tree policies
and procedure since 2005.” (Doc. 106 ¶ 8.) In the same request, Defendant also
sought “[a]ll communications and documents regarding [Plaintiff’s] claim for damages in
this litigation.” (Id. ¶ 10.) Plaintiff maintained that it produced all relevant invoices from
2019 and 2020 as a part of its automatic disclosures, which Defendant argues was not
responsive to what it requested. (Id. ¶¶ 12–13.)
3 Until December 2022, Defendant focused on other discovery issues in the midst
of the withdrawal of its initial attorney due to health reasons. Defendant still believed
that the documents Plaintiff provided was not responsive to its requests for contractor
invoices. On December 5, 2022, Defendant served a fourth request for documents on
Plaintiff, this time explicitly asking for “all invoices for vegetation management and/or
maintenance re-clearing.” (Id. ¶ 18.) Plaintiff objected to the request as duplicative of
Defendant’s previous requests but agreed to provide the copies of the sought invoices.
(Id. ¶ 19.) At the hearing, Plaintiff represented that it had informed Defendant that its
requested invoices were in hard copies in five banker boxes that Defendant could
inspect at its own leisure. Defendant clarified at the hearing that it still seeks nearly
32,000 pages of contractor invoices which Plaintiff informed Defendant that they
possess but did not produce. (Id. ¶ 19.)
Contrary to Defendant’s contentions, Defendant did not explicitly ask for
contractor invoices until December 2022. The Court agrees with Plaintiff that
Defendant’s first document request was ambiguous about the exact documents that
Defendant sought. On the other hand, it has now been almost a year since Defendant
explicitly asked for contractor invoices and Plaintiff still has not yet produced all
responsive materials. Thus, the Court finds that the actions of both parties have
contributed to delay in production of the contractor invoices. Accordingly, considering
the labor intensive nature of converting the hard copy invoices to an electronic format
and the limited probative value of the invoices sought, the Court here uses its discretion
to require each party to contribute evenly to the cost of production of the remaining two
boxes of contractor invoices. See Johnston by Johnston, 133 N.H. at 97.
4 II. Motion for Voluntary Non-Suit
Defendant moves to non-suit its counterclaims III–V without prejudice. (Doc. 91
at 1.) At the hearing, Defendant explained that the issues in counterclaims III–V relate
to poll setting issues, and in an effort to streamline the case, as Plaintiff asked
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THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH, SS SUPERIOR COURT NORTHERN DISTRICT
New Hampshire Electric Cooperative, Inc.
v.
Consolidated Communications of Northern New England, LLC
Docket No. 216-2020-CV-00555
ORDER
Plaintiff brought this action against Defendant for breach of contract, breach of
the implied covenant of good faith and fair dealing, and unjust enrichment/quantum
meruit. Plaintiff also seeks a number of declaratory judgments pertaining to the timing,
effect, and scope of the termination of an agreement between the parties. Defendant
has filed a counterclaim, seeking its own declaratory judgments and alleging claims for
rescission (or reformation), breach of contract, breach of the implied covenant of good
faith and fair dealing, and unjust enrichment. Presently before the Court are
Defendants’ motions to compel (Doc. 106), for a voluntary non-suit (Doc. 91), and to
continue the trial and suspend the previous case structuring order (“CSO”) (Doc. 109).
Plaintiff objects. (Compel (Doc. 121); Non-suit (Doc. 101); Continue 125.)) The Court
held a hearing on August 21, 2023. As articulated at the hearing, and for the reasons
that follow, Defendants’ motions are GRANTED.
I. Motion to Compel
In its present motion, Defendant seeks “hard copy, original vegetation
management contractor invoices for the period between 2016 and March 2020.” (Doc.
106 at 1.) At the hearing, Plaintiff represented that it has already produced multiple large boxes of invoices from 2019 and 2020 and the remaining two boxes of invoices
contain invoices from 2016-2018, which is outside of its claimed damages period in the
case. Defendant maintains that it needs all the invoices to properly defend against
Plaintiff’s sought damages and to determine if there are inconsistencies among the
invoices.
At the hearing, the Court agreed with Defendant that although the remaining
documents’ probative value may be somewhat limited, the invoices nevertheless were
relevant to Defendant’s anticipated defense. See Super. Ct. R. 21(b) (“[P]arties may
obtain discovery regarding any matter, not privileged, that is relevant to the subject
matter involved in the pending action, whether it relates to the claim or defense of the
party seeking discovery or to the claim or defense of any other party.”). Specifically,
even invoices prior to 2019 may help bolster Defendant’s defense if the invoices
demonstrate a change over time compared to the most recent contractor invoices.
Especially in light of the New Hampshire Supreme Court’s preference for liberal
discovery, the Court finds that Defendant is entitled to the two remaining boxes of
contractor invoices. See Yancey v. Yancey, 119 N.H. 197, 198 (1979). Plaintiffs
agreed to produce these documents by September 8, 2023.
Defendant further contends that it is entitled to the two boxes of invoices free of
cost. In support thereof, Defendant argues that throughout the pending litigation, each
party has paid for its own production of materials. Further, Defendant points out that
Plaintiff should have turned over these documents as part of its automatic disclosures or
at the very latest, in response to Defendant’s first request for production of documents.
Plaintiff informed the Court at the hearing that it would roughly cost between $6,000 and
2 $8,000 to produce the remaining invoices. Specifically, Plaintiff explained that the hard
copies will be converted into a digital format and thus delivered to Defendant
electronically. Plaintiff asserts that Defendant should share the cost of production
because of the amount of labor involved and Defendant’s delay in obtaining the
documents.
The Court agrees with Plaintiff. Courts have broad discretion in allocating
discovery costs. See Johnston by Johnston v. Lynch, 133 N.H. 79, 97 (1990) (finding
that the trial court was within its discretion to order plaintiffs to pay the cost of additional
depositions). The Court acknowledges, as Plaintiff points out, this litigation has been
on-going for over three years and the saga over these particular records has dragged
on for months. The Court will briefly recount Defendants’ attempts to obtain the
invoices to illustrate why Defendant should share the cost of production with Plaintiff.
On December 28, 2020, Plaintiff delivered documents to Defendant as part of its
automatic disclosures but did not include the contractor invoices. On February 11,
2021, Defendant sent Plaintiff the following request for production: “All communications
and documents exchanged between [Plaintiff] and third-party contractors describing
[Plaintiff’s] maint[enance] re-clearing, storm damage cleanup and/or hazard tree policies
and procedure since 2005.” (Doc. 106 ¶ 8.) In the same request, Defendant also
sought “[a]ll communications and documents regarding [Plaintiff’s] claim for damages in
this litigation.” (Id. ¶ 10.) Plaintiff maintained that it produced all relevant invoices from
2019 and 2020 as a part of its automatic disclosures, which Defendant argues was not
responsive to what it requested. (Id. ¶¶ 12–13.)
3 Until December 2022, Defendant focused on other discovery issues in the midst
of the withdrawal of its initial attorney due to health reasons. Defendant still believed
that the documents Plaintiff provided was not responsive to its requests for contractor
invoices. On December 5, 2022, Defendant served a fourth request for documents on
Plaintiff, this time explicitly asking for “all invoices for vegetation management and/or
maintenance re-clearing.” (Id. ¶ 18.) Plaintiff objected to the request as duplicative of
Defendant’s previous requests but agreed to provide the copies of the sought invoices.
(Id. ¶ 19.) At the hearing, Plaintiff represented that it had informed Defendant that its
requested invoices were in hard copies in five banker boxes that Defendant could
inspect at its own leisure. Defendant clarified at the hearing that it still seeks nearly
32,000 pages of contractor invoices which Plaintiff informed Defendant that they
possess but did not produce. (Id. ¶ 19.)
Contrary to Defendant’s contentions, Defendant did not explicitly ask for
contractor invoices until December 2022. The Court agrees with Plaintiff that
Defendant’s first document request was ambiguous about the exact documents that
Defendant sought. On the other hand, it has now been almost a year since Defendant
explicitly asked for contractor invoices and Plaintiff still has not yet produced all
responsive materials. Thus, the Court finds that the actions of both parties have
contributed to delay in production of the contractor invoices. Accordingly, considering
the labor intensive nature of converting the hard copy invoices to an electronic format
and the limited probative value of the invoices sought, the Court here uses its discretion
to require each party to contribute evenly to the cost of production of the remaining two
boxes of contractor invoices. See Johnston by Johnston, 133 N.H. at 97.
4 II. Motion for Voluntary Non-Suit
Defendant moves to non-suit its counterclaims III–V without prejudice. (Doc. 91
at 1.) At the hearing, Defendant explained that the issues in counterclaims III–V relate
to poll setting issues, and in an effort to streamline the case, as Plaintiff asked
Defendant to do, seeks to voluntarily non-suit the claims so the current litigation can
focus squarely on the vegetation management issue. Plaintiff objects, arguing that
Defendant’s counterclaims should be dismissed with prejudice given the lengthy
litigation and Defendant’s dilatory conduct throughout. (Doc. 101 ¶ 2.) At the hearing,
Plaintiff conceded that given the choice between a voluntary non-suit without prejudice
and continuing with counterclaims III–V in the current case, Plaintiff would rather the
Court grant the voluntary non-suit without prejudice.
Here, as the Court ruled at the hearing, the Court does not feel it is warranted to
force Defendant to voluntary non-suit its counterclaims with prejudice. Though Plaintiff
did not specifically request Defendant to voluntarily non-suit its counterclaims, Plaintiff
did ask Defendant to streamline the case if possible. The Court agrees that a voluntary
non-suit here accomplishes that goal. Defendant explained at the hearing that the
damages sought for counterclaims III–V are distinct from the other counts in the case,
demonstrating that it makes sense for those claims to be tried separately from the
vegetation management issue.
This is not a situation where granting the non-suit without prejudice would entitle
Defendant to a legal right it would not otherwise be entitled to. See Total Serv., Inc. v.
5 Promotional Printers, Inc., 129 N.H. 266, 268–69 (1987) (holding that where a voluntary
non-suit would essentially amount to a continuance where plaintiff was barred from
seeking further continuances, the trial court was within its discretion to grant the non-
suit with prejudice). Granting Defendant’s requested non-suit without prejudice would
not negatively impact the current proceedings in front of the Court but would rather
create a streamlined case that will benefit both parties. See id. Moreover, the prejudice
to Plaintiff if Defendant were to re-file its counterclaims is mitigated by the fact that the
filings still must comply with the requisite statute of limitations period. Accordingly,
Defendant’s motion to voluntarily non-suit its counterclaims III–V without prejudice is
GRANTED.
III. Motion to Continue and Suspend CSO
Lastly, Defendant moves to continue the trial date and suspend the current CSO
in the case. Currently, the case is scheduled for a five-day jury trial within the last two
weeks of October 2023 with a deposition deadline of August 24, 2023. Defendant
seeks a continuance because the delay in discovery, especially with the contractor
invoices, prevented Defendant from deposing Plaintiff’s witnesses before the August 24,
2023 deadline. (Doc. 109 at 1.) At the hearing, Defendant further explained that they
will also need additional time to go through the soon-to-be produced contractor invoices
before they can complete their required depositions. Defendant seeks a new deposition
deadline of at least December 2023.
Plaintiff objects, arguing that Defendant’s dilatory conduct caused its own
hardship. Further, Plaintiff points out that Defendant could have continued deposing its
witnesses even without the invoice data and completed said depositions once it has had
6 the opportunity to review the invoices. Ultimately, Plaintiff contends that because the
case has been ongoing for over three years, any additional continuances would
prejudice Plaintiff because Defendant’s conduct unilaterally caused the delay. Plaintiff
allows that a short continuance is warranted in the case but maintains that the jury trial
should be scheduled no later than January 2024.
At the hearing, the Court granted Defendant’s motion to continue. Although the
Court recognizes that perhaps Defendant could have been more diligent in deposing
Plaintiff’s witnesses while awaiting the rest of the discovery, the Court finds that it would
be impractical to expect both parties to be ready to try this case by January 2024 given
the amount of outstanding discovery remaining. However, once Defendant receives the
rest of the contractor invoices, the Court expects both parties to work diligently to keep
the case on track. Accordingly, Defendant’s motion is GRANTED and the new case
deadlines are as follows: (1) the discovery deadline on January 31, 2024; (2) expert
disclosures on February 29, 2024; (3) expert rebuttals on March 15, 2024; (4) trial
management conference and deadline for motions in limine on April 22, 2024; and (5)
jury selection on May 6, 2024.
SO ORDERED.
__________________________ September 12, 2023 David A. Anderson Associate Justice