Petition of State of New Hampshire

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0391, Petition of State of New Hampshire,
the court on May 21, 2020, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
Accordingly, we vacate that portion of our August 23, 2019 acceptance order
that provided that the case would “be scheduled for oral argument before the
full court.” We affirm.

The State seeks a writ of certiorari, see Sup. Ct. R. 11, challenging
pretrial decisions of the Superior Court (Howard, J.) to deny the States motion
to quash a subpoena duces tecum served by the defendant, Mark Oliveri, upon
the alleged victim in a criminal matter that the State is currently prosecuting,
and to allow the defendant to depose the alleged victim for five additional
hours. On appeal, the State invites us to adopt the standard set forth in
United States v. Nixon 418 U.S. 683, 699-700 (1974), governing subpoenas
duces tecum in federal criminal trials, and argues that, because the
defendant’s subpoena allegedly did not satisfy Nixon, the trial court erred by
enforcing it. Alternatively, the State argues that we “must vacate the trial
court’s order and remand for further consideration because,” according to the
State, “the trial court refused to make any findings or to consider any
heightened standard” which, the State asserts, ought to apply to a subpoena
duces tecum in a criminal case. Finally, the State contends that the trial court
erred when it permitted the alleged victim’s deposition to continue for five
additional hours because, the State claims, the trial court “failed to question
the defendant’s need for additional time.”

“Certiorari is an extraordinary remedy that is not granted as a matter of
right, but rather at the court’s discretion.” Petition of State of N.H. (State v.
Lewandowski), 169 N.H. 340, 341 (2016). “Certiorari review is limited to
whether the trial court acted illegally with respect to its jurisdiction, authority
or observance of the law, or unsustainably exercised its discretion or acted
arbitrarily, unreasonably, or capriciously.” Id.

The trial court has broad discretion to manage pretrial discovery in a
criminal case. See State v. Larose, 157 N.H. 28, 39 (2008). Its discretion
includes whether to allow a criminal defendant to depose a third party,
including the complaining witness, if the trial court determines that the
deposition is necessary “[t]o ensure a fair trial, avoid surprise, or for other good
cause shown.” N.H. R. Crim. P. 13(b)(2); see State v. Sargent, 148 N.H. 571,
575 (2002). Moreover, the New Hampshire Rules of Criminal Procedure allow a
criminal defendant to serve a subpoena duces tecum upon a complaining
witness. N.H. R. Crim. P. 13(f), 17(b); see Lewandowski, 169 N.H. at 344. We
will not overturn a trial court’s decision on a pretrial discovery matter unless
the appealing party establishes an unsustainable exercise of discretion.
Larose, 157 N.H. at 39.

In this case, the trial court granted the defendant’s motion to depose the
alleged victim, finding that the deposition was necessary “to ensure a fair trial,
avoid unfair surprise, and permit him to prepare an adequate defense.” The
State does not challenge that determination. Thereafter, the defendant served
a notice of deposition and subpoena duces tecum upon the alleged victim,
requiring the alleged victim to attend a deposition scheduled more than a
month after the notice and to produce documents within twenty-seven separate
categories at the deposition. At no point prior to the deposition did the State
move to quash the subpoena.

At the deposition, the alleged victim produced only a “small fraction” of
responsive documents that were in her possession or control. Moreover, she
testified that she had only begun to look for responsive documents on the
Friday before the Monday deposition, despite having been in possession of the
subpoena for more than a month. After the deposition had concluded, counsel
for the defendant conferred with the prosecutor as to the prosecutor’s
availability to continue the deposition, and upon confirming the prosecutor’s
availability, he served the alleged victim with a new subpoena “because [the
defendant’s counsel] want[ed] [the alleged victim] back for this deposition with
the records.” Counsel for the defendant and the prosecutor then discussed the
prosecutor’s concern that some of the documents might contain confidential
information, and counsel for the defendant agreed that redactions of such
documents would be appropriate. At that point, the prosecutor, for the first
time, suggested that the State “may consider filing a Motion on the issue of the
documents to be produced under the second Subpoena,” and counsel for the
defendant suggested that “the State express any concerns or reservations and
efforts would be made to seek agreement.”

On the following day, the State objected to the continued deposition and
moved to quash the subpoena, claiming that counsel for the defendant had
mismanaged his time during the deposition and had behaved unprofessionally
toward the alleged victim, and arguing that the defendant had not established
good cause for a further deposition. With respect to the documents, the State
asserted that although “the Rules of Criminal Procedure provide a reference to
serving a subpoena duces tecum for a deposition, there is no real explanation of
the process for requesting documentation from a witness,” that it was “unclear
what obligation [the alleged victim] is under to provide documentation for the
defense,” and that “there is no requirement that specific witnesses produce
documentation to the defendant.” The State then asserted that “some of the

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requested documentation . . . is overly broad and unduly burdensome,” but
cited only two of the twenty-seven categories as allegedly being overbroad. The
State raised no other argument why the defendant was not entitled to
production of the documents identified in the subpoena. The defendant filed a
lengthy objection, disputing the State’s claim that his counsel had behaved
unprofessionally or mismanaged his time, arguing that the documents he was
seeking, including the two specific categories that the State had specifically
challenged, were necessary for his defense and were neither overbroad nor
unduly burdensome, and asserting that the further deposition was necessary
in order to question the alleged victim regarding the documents she had not yet
produced. The trial court denied the State’s motion, ruling as follows: “Second
deposition limited to 5 hours of questioning (exclusive of two 15 minute breaks
and one hour for lunch). Witness shall comply with duces tecum.”

The State moved for reconsideration and, for the first time, argued that
the defendant had no right to issue a subpoena compelling the production of
documents, that the court should adopt Nixon, and that under Nixon, the
defendant had not established his right to the documents he was seeking. The
defendant objected, observing that the reconsideration motion constituted the
State’s first challenge to his right to compel production of documents by
subpoena. The defendant argued that Nixon is inconsistent with New
Hampshire law, and in the alternative, that he had satisfied Nixon. The trial
court held an hour-long hearing on the reconsideration motion, during which
the defendant offered detailed arguments why the documents he was seeking
were necessary to his defense. At the hearing, the trial court observed that
“although lengthy, the document production is specific to events that relate to
this case.” The court asked counsel for the State whether the State had
received the subpoena duces tecum when it was initially served, whether the
State had moved to quash the subpoena prior to the deposition, and whether it
had raised its Nixon argument prior to its motion for reconsideration. Counsel
for the State conceded that the State had received the subpoena duces tecum,
that the State had not moved to quash the subpoena duces tecum when it was
initially served, and that its post-deposition motion to quash had not addressed
the Nixon argument “in depth.” Counsel for the State claimed, however, that
the arguments in the motion to quash that the criminal procedure rules are
unclear as to “the process for requesting documentation from a witness” and
the alleged victim’s “obligation . . . to provide documentation for the defense”
effectively encompassed its Nixon argument.

The trial court denied the motion for reconsideration, finding that “[t]he
primary argument raised by the State in its motion to reconsider was not
initially raised in its motion to quash the second subpoena,” and that the court
“did not overlook or misapprehend any material point of fact or law in its
original order.” In context, we construe the trial court’s order as having
declined to address the merits of arguments raised for the first time in the
motion for reconsideration on timeliness grounds. See In the Matter of Salesky

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& Salesky, 157 N.H. 698, 702 (2008) (stating that interpretation of a trial court
order is a question of law, which we review de novo).

The trial court has discretion not to address an argument raised for the
first time in a motion for reconsideration on the basis that the argument was
not timely raised. See Mortgage Specialists v. Davey, 153 N.H. 764, 786
(2006). In this case, we conclude that the trial court acted well within its
discretion by declining to address the State’s arguments that the defendant
was not authorized to issue a subpoena duces tecum, that Nixon controlled,
and that the defendant had failed to meet the Nixon standard. The State was
in possession of the subpoena duces tecum for more than a month prior to the
deposition, attended the deposition without raising any objection to the
subpoena, filed its motion to quash only after the alleged victim had failed to
comply with the subpoena at the deposition, and argued in its motion to quash
only that the rules were unclear as to “the process for requesting” documents
and the witness’s obligation to produce them, and that “some” of the document
requests – specifically, two of twenty-seven requests – were overbroad and
unduly burdensome. Under these circumstances, we cannot say that the trial
court’s decision not to address the merits of the new arguments raised in the
motion for reconsideration was clearly untenable or unreasonable to the
prejudice of the State’s case. See id. at 789.

Nor can we say that the trial court unsustainably exercised its discretion
by enforcing the subpoena and compelling the alleged victim’s further
deposition to testify regarding documents that she had not yet produced
pursuant to the subpoena. The defendant articulated arguments, both in his
objection to the motion to quash and at the hearing on reconsideration, why
the documents he sought were necessary for his defense, why the requests
identified by the State were not overbroad or unduly burdensome, and why it
was necessary to continue the deposition in order to question the alleged victim
regarding the documents.1 As the trial court observed, “although lengthy, the
document production [requests are] specific to events that relate to this case.”
Upon this record, we cannot say that the trial court acted illegally with respect
to its jurisdiction, authority or observance of the law, or that it unsustainably
exercised its discretion or acted arbitrarily, unreasonably, or capriciously by
enforcing the subpoena and allowing the defendant an additional five hours to

1 We reject the State’s argument on appeal that the trial court “simply rubber stamped the

defendant’s request” in this case. In contrast to the defendant’s detailed arguments justifying
why the documents he sought and further deposition testimony regarding them were necessary
to his defense, the State offered little-to-no justification in its motion to quash for not enforcing
the document production requirements of the subpoena. Moreover, the trial court provided the
State an hour-long hearing on its motion for reconsideration in order to present its arguments
why the subpoena should not be enforced. Although the trial court may not have articulated
specific findings of fact in enforcing the subpoena, we ordinarily assume that the trial court
made all findings necessary to support its decision. See State v. Palermo, 168 N.H. 387, 394
(2015).

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depose the alleged victim concerning documents she had not yet produced
pursuant to the subpoena. Lewandowski, 169 N.H. at 341.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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