Atl. Anesthesia, P.A. v. Lehrer

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2024-0005
Citation: Atl. Anesthesia, P.A. v. Lehrer, 2025 N.H. 42

ATLANTIC ANESTHESIA, P.A. & a.

v.

IRA LEHRER;

ATLANTIC ANESTHESIA, P.A. & a.

v.

NATHAN JORGENSEN & a.;

WENTWORTH-DOUGLASS HOSPITAL

v.

ATLANTIC ANESTHESIA, P.A. & a.

Argued: October 30, 2024
Opinion Issued: September 16, 2025

Holland & Knight LLP, of Boston, Massachusetts (W. Scott O’Connell, on
the brief and orally), and Nixon Peabody LLP, of Manchester (Nathan P.
Warecki and Erin S. Bucksbaum on the brief), for Atlantic Anesthesia, P.A. and
North American Partners in Anesthesia (New Hampshire) LLP.

Shaheen & Gordon, P.A., of Concord (William E. Christie on the brief and
orally), and Horty, Springer & Mattern, P.C., of Pittsburgh, Pennsylvania
(Daniel Mulholland III and Mary Paterni on the brief), for Wentworth-Douglass
Hospital.

Orr & Reno, P.A., of Concord (Derek D. Lick and Elizabeth C. Velez on
the brief, and Derek D. Lick orally), for Dr. Ira Lehrer, Dr. Nathan Jorgensen,
and Dr. George Kenton Allen.

COUNTWAY, J.

¶1 This case comes to us on interlocutory appeal pursuant to Supreme
Court Rule 8. Wentworth-Douglass Hospital (WDH) and Dr. Ira Lehrer, Dr.
Nathan Jorgensen, and Dr. George Kenton Allen (physician defendants)
challenge orders of the Superior Court (Anderson, J.) compelling them to
disclose to Atlantic Anesthesia, P.A. (Atlantic) and North American Partners in
Anesthesia (New Hampshire) LLP (NAPA-NH) (collectively Atlantic/NAPA-NH)
certain communications that WDH and the physician defendants assert are
protected by the attorney-client privilege and the common interest doctrine and
ordering their counsel to sit for depositions. See N.H. R. Ev. 502. We conclude
that the crime-fraud exception to the attorney-client privilege does not apply to
the claims at issue in this case, but affirm the trial court’s ruling that the
common interest doctrine does not apply to communications made prior to the
date litigation was pending. We vacate the trial court’s ruling that counsel can
be deposed and its ruling requiring the disclosure of privileged communications
under a theory of necessity.

I. Background

¶2 This consolidated case involves claims and counterclaims by
Atlantic/NAPA-NH, WDH, and the physician defendants relating to the
physician defendants leaving Atlantic/NAPA-NH’s employment and becoming
employees of WDH. In 2019, Atlantic/NAPA-NH separately sued defendant
Lehrer and defendants Jorgensen and Allen after they left Atlantic/NAPA-NH’s
employment and were hired by WDH. The two cases against the physician
defendants were later consolidated (physicians case). Also in July 2019, WDH
brought suit against Atlantic/NAPA-NH seeking injunctive relief and asserting

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a number of claims, and Atlantic/NAPA-NH filed counterclaims against WDH
(WDH case). Discovery and related motion practice proceeded in both cases
until they were consolidated in November 2021. This appeal requires us to
consider trial court rulings made in an order issued in the physicians case and
two orders issued after the cases were consolidated.

A. Facts

¶3 We accept the statement of facts presented in the interlocutory
appeal statement and rely upon the record for additional facts as necessary.
See In the Matter of Liquidation of Home Ins. Co., 175 N.H. 363, 364 (2022).
We recite here only those facts necessary to decide the transferred questions.

¶4 WDH contracted with Atlantic, a physician group, for the provision of
anesthesia and pain management services to WDH’s patients. In December
2014, the physicians who owned Atlantic, including Lehrer and Jorgensen, sold
their ownership interests in Atlantic to NAPA-NH for $12.6 million. After
selling their ownership interests, Lehrer and Jorgensen, along with the other
anesthesiologists, became employees of Atlantic/NAPA-NH. Allen was hired as
an employee in 2016 after NAPA-NH had acquired Atlantic. The stock
purchase agreement and the physician defendants’ employment contracts
included various restrictive covenants. Included in these were covenants not to
compete and non-solicitation provisions that prohibited them from, among
other things, soliciting their fellow employees to work for another employer.

¶5 In November 2016, WDH and Atlantic/NAPA-NH entered into an
exclusive contract in which Atlantic/NAPA-NH agreed to provide all of the
anesthesiology and pain management services required by the hospital
(anesthesia contract). The anesthesia contract was set to expire on November
30, 2019, and was to automatically renew unless either party provided 180
days’ notice of nonrenewal. Lehrer participated in discussions with WDH
relating to the potential renewal. As negotiations relating to the anesthesia
contract continued in November 2018, Ellen Caille, WDH’s Executive Vice
President, sent Lehrer a text message asking him to meet with her and WDH’s
Chief Executive Officer, Gregory Walker, “to discuss NAPA contract and next
steps per our discussion.” (Quotation omitted.) During a November 13, 2018
meeting attended by Caille, Walker, Lehrer, and Jorgensen, WDH indicated
that it was considering not renewing the anesthesia contract. Shortly
thereafter, Lehrer emailed several other physicians in the practice group,
including Jorgensen and Allen, stating an interest in “develop[ing] a strategy
moving forward on whether we stay with NAPA or become hospital employees,”
and suggesting that if they were to move forward with becoming hospital
employees, they should hire legal representation so that they could
“understand [their] options.” (Quotations omitted.) On February 4, 2019, the
physician defendants and other Atlantic/NAPA-NH anesthesiology providers
executed an engagement letter to retain Attorney Robert Best.

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 [¶6] Lehrer, Jorgensen, and Allen were invited to attend a May 6, 2019
meeting with WDH administrators; WDH’s counsel, Attorney Daniel
Mulholland; and Attorney Best. Four days prior to the May 6 meeting, WDH,
the physician defendants, and other Atlantic/NAPA-NH providers executed a
common interest agreement, which stipulated that their shared interest was in
“exploring potential future relationships.” (Quotation omitted.) A second
meeting between the physician defendants and WDH was held on May 20,
2019. Best and Mulholland attended the meeting.

¶7 On May 22, 2019, WDH sent a letter of nonrenewal to
Atlantic/NAPA-NH, along with an offer, to be held open for 30 days, to extend
the anesthesia contract for one year. On June 18, WDH rescinded the
extension offer without providing a reason. On June 25, counsel for WDH
informed Atlantic/NAPA-NH that WDH intended to enter into discussions with
the providers about continuing to provide services after the expiration of the
anesthesia contract. On June 27, Atlantic/NAPA-NH wrote to WDH informing
it of Atlantic/NAPA-NH’s intention to enforce the restrictive covenants.

¶8 On July 11, 2019, Atlantic/NAPA-NH terminated Lehrer’s
employment, and five days later filed a civil action against him, asserting
breach of contract, tortious interference with prospective economic advantage
and contractual relations, and misappropriation of trade secrets. Shortly
thereafter, WDH sued Atlantic/NAPA-NH seeking to bar enforcement of the
restrictive covenants. Atlantic/NAPA-NH later asserted counterclaims against
WDH for, among other things, tortious interference with contractual relations.
Jorgensen and Allen each resigned thereafter from Atlantic/NAPA-NH. By late
August 2019, all but one of the Atlantic/NAPA-NH anesthesiology providers
had submitted their resignations to Atlantic/NAPA-NH. Best and Mulholland
continued to negotiate the providers’ employment with WDH, which included
discussions about salary and indemnification, and by mid-October 2019,
nearly all of the Atlantic/NAPA-NH providers signed employment contracts with
WDH. Lehrer signed his on November 4, 2019. Atlantic/NAPA-NH filed suit
against Jorgensen and Allen on December 31, 2019, alleging the same claims
as those against defendant Lehrer, as well as claims for breach of fiduciary
duty and civil conspiracy.

B. Procedural History and Trial Court Orders

¶9 In March 2020, in the case against Lehrer, Atlantic/NAPA-NH
requested that the trial court compel the production of materials that Lehrer
had withheld during discovery, which he claimed were protected from
disclosure by the “common interest privilege,” and order Lehrer to produce a
privilege log. Atlantic/NAPA-NH argued that the common interest doctrine did
not apply to shield certain communications disclosed to a third party and that
certain attorney-client communications were not privileged because they fell
within the “crime-fraud exception” to the privilege. See N.H. R. Ev. 502(d)(1).

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In October 2020, after the two cases against the physician defendants had
been consolidated, the trial court issued an order in which it found that it
“need not reach a determination” as to whether the common interest doctrine
applied because Atlantic/NAPA-NH had made a sufficient showing that the
crime-fraud exception applied. In doing so, it determined that although this
court had not yet ruled on the issue, the exception applied to types of conduct
other than strict crimes or frauds, and that a breach of fiduciary duty was
sufficient to trigger the exception. The court concluded that Atlantic/NAPA-NH
had established a sufficient threshold showing to justify in camera review of
the contested communications, and ordered the physician defendants to
submit to the court for review “copies of all communications they seek to
protect.”

¶10 In November 2022, after all cases had been consolidated,
Atlantic/NAPA-NH filed motions to: (1) strike privilege assertions made by WDH
and compel the production of withheld materials; (2) strike privilege assertions
made by the physician defendants; (3) resume the depositions of Caille and
Walker to obtain answers to questions that the deponents had refused to
answer on privilege grounds; and (4) compel the depositions of Attorneys Best
and Mulholland. WDH and the physician defendants each filed objections.

¶11 In an April 18, 2023 order, the trial court ruled that the physician
defendants and WDH could not rely on the common interest doctrine to shield
communications between themselves and/or between their respective counsel
prior to June 27, 2019, when Atlantic/NAPA-NH provided written notice to
WDH that it intended to enforce the physicians’ restrictive covenants, because
until that date there was no protectable common interest. The court also ruled
that certain communications between the physician defendants and WDH
and/or their counsel that occurred after June 27, 2019, and until November 4,
2019, when the last Atlantic/NAPA-NH provider signed a contract with WDH,
were subject to disclosure pursuant to the crime-fraud exception because
Atlantic/NAPA-NH had made a sufficient showing that: (1) the physician
defendants had breached their fiduciary duties to Atlantic/NAPA-NH; (2) WDH
had tortiously interfered with Atlantic/NAPA-NH’s contractual relations; and (3)
the physician defendants and WDH had used the services of Attorneys Best
and Mulholland to perpetrate the breach of fiduciary duty and tortious
interference.

¶12 The trial court concluded, however, that the crime-fraud exception
did not extend to all communications made in the course of the attorney-client
relationship, but was limited to communications and documents connected to
the physician defendants’ alleged breaches of fiduciary duties and WDH’s
alleged tortious interference with Atlantic/NAPA-NH’s contractual relations
with its providers. Based on the record, the trial court ruled that
communications between the physician defendants and WDH and/or between
their counsel prior to November 4, 2019 were subject to disclosure, but that

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communications between the physician defendants and Attorney Best and
between WDH and Attorney Mulholland were not subject to disclosure. The
trial court also ruled that communications that did not include attorneys were
not privileged, unless it could be shown that the communications were made
for the purpose of obtaining legal advice or otherwise communicating with an
attorney. In addition, the trial court ordered Attorneys Best and Mulholland to
sit for depositions as to conversations that they had with each other not in the
presence of other witnesses who had been or will be deposed and that relate to
the alleged breach of fiduciary duties and tortious interference up until
November 4, 2019.

¶13 The physician defendants and Atlantic/NAPA-NH each filed a
motion to clarify and/or reconsider the April 18, 2023 order. The trial court
denied the physician defendants’ motion and granted Atlantic/NAPA-NH’s
motion in part. In its motion to reconsider and for clarification, Atlantic/NAPA-
NH requested that the court find language from certain emails not privileged.
In an order issued July 21, 2023, the trial court ruled that certain statements
made in six emails between Attorney Best and at least one of the physician
defendants were not privileged because Atlantic/NAPA-NH had demonstrated
that it had a “compelling need” for certain facts included in the emails.
Thereafter, the physician defendants and WDH brought this interlocutory
appeal.

II. Analysis

¶14 The trial court transferred the following questions:

1. Does the New Hampshire crime-fraud exception to the attorney-client
privilege under N.H. R. Evid. 502(d)(1) and/or the common interest
privilege apply to tort claims for breach of fiduciary duty or tortious
interference?

2. Does the party seeking to show that the crime-fraud exception
applies, have the burden to demonstrate that there was a reasonable
basis to apply the exception?

3. Did the Superior Court err in concluding that there was a reasonable
basis to apply the crime-fraud exception based on the facts described
in its Order?

4. Does the common interest [doctrine] apply to communications in the
absence of pending litigation?

5. Is the deposition of trial counsel permitted when notice is not
provided as required by N.H. Superior Court Rule § 36(d)(5)(i)?

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 6. Did the Trial Court err when it required the disclosure of the
Physician Defendants’ otherwise protected attorney-client
communications under a theory of “necessity”?

¶15 For the reasons that follow, we decline to answer the transferred
questions as framed, but (1) affirm the trial court’s ruling that the common
interest doctrine did not apply until June 27, 2019; (2) reverse the trial court’s
ruling that the crime-fraud exception to the attorney-client privilege applies to
the claims of breach of fiduciary duty and tortious interference with
contractual relations at issue here; and (3) vacate the trial court’s ruling that
counsel can be deposed and its ruling requiring the disclosure of certain facts
contained in the email communications between Attorney Best and the
physician defendants.

A. The Attorney-Client Privilege

¶16 All but question 5 of the transferred questions require us to
interpret New Hampshire Rule of Evidence 502, which essentially codifies the
common law attorney-client privilege. See Petition of Stompor, 165 N.H. 735,
738 (2013). We review the trial court’s interpretation of rules of evidence de
novo. See State v. Paul, 176 N.H. 262, 265 (2023). “When interpreting a rule
of evidence or a statute, we will first look to the plain meaning of the words
used and ascribe to them their plain and ordinary meaning where possible. We
will not add words to the plain language of a rule.” Id. (citation omitted).

¶17 Rule 502(b) states, in relevant part, that:

A client has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications made
for the purpose of facilitating the rendition of professional legal
services . . . (3) by the client or the client’s representative or the
client’s lawyer or a representative of the lawyer to a lawyer or a
representative of a lawyer representing another party in a pending
action and concerning a matter of common interest therein . . . .

N.H. R. Ev. 502(b). Rule 502(d), however, sets forth five categories of
communications that are not privileged. One exception provides that there is
no privilege under the rule “[i]f the services of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to commit in the future
what the client knew or reasonably should have known to be a crime or fraud.”
N.H. R. Ev. 502(d)(1).

¶18 The burden of establishing the existence of the attorney-client
privilege rests with the party asserting it. See 2 Paul R. Rice, Attorney-Client
Privilege in the United States § 11.10, at 923 (2011); McCabe v. Arcidy,138
N.H. 20, 25 (1993). Once information is determined to fall within the scope of

7
the attorney-client privilege, the burden is on the party seeking the information
to show that an exception applies. See F.D.I.C. v. Ogden Corp., 202 F.3d 454,
460 (1st Cir. 2000).

1. The Common Interest Doctrine (Question 4)

¶19 In its April 18, 2023 order, the trial court rejected the argument
that because WDH and the physician defendants had a “shared legal interest”
and sought legal assistance to “meet legal requirements and plan accordingly,”
certain communications about, and the content of, the May 6 and May 20,
2019 meetings were protected by the attorney-client privilege. The trial court
ruled that although the communications at issue pertained to a common
interest, the common interest doctrine did not apply to communications made
between the physician defendants and WDH and their lawyers prior to the date
litigation was “pending,” which the trial court determined was June 27, 2019,
“because at this point the threat of litigation was very real.” On appeal, the
physician defendants and WDH argue that the trial court erred in so ruling,
because the common interest doctrine can apply in the absence of pending
litigation. We disagree.

¶20 As a general matter, no privilege attaches to a communication
between a client and an attorney that is made in the presence of a third party
because it is not deemed confidential. See 8 J. Wigmore, Evidence § 2311
(McNaughton rev. 1961). The common interest doctrine is an exception to this
rule, providing that “when two or more clients consult or retain an attorney on
particular matters of common interest . . . the communications between each
of them and the attorney are privileged as against third parties.” Cavallaro v.
United States, 284 F.3d 236, 249 (1st Cir. 2002) (quotations, citations, and
brackets omitted). The doctrine is codified in New Hampshire Rule of Evidence
502(b)(3), which provides that the privilege extends to communications “by the
client or the client’s representative or the client’s lawyer or a representative of
the lawyer to a lawyer or a representative of a lawyer representing another
party in a pending action and concerning a matter of common interest therein.”
N.H. R. Ev. 502(b)(3). The language of the rule unambiguously provides that it
applies when: (1) there was an action pending at the time the communications
were made; and (2) the communications pertained to a matter of common
interest. Id.

¶21 No party challenges the trial court’s conclusion that litigation was
“pending” as of June 27, 2019, the date Atlantic/NAPA-NH provided written
notice to WDH that it intended to enforce the physicians’ restrictive covenants.
We therefore assume, without deciding, that litigation was pending as of that
date. Arguing that the common interest doctrine protected earlier
communications, the physician defendants ask us to rule that the pendency of
litigation is not a requirement for the common interest doctrine to apply. They
acknowledge that the applicable rule “frames the common interest [doctrine] as

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applying in the context of pending litigation,” but they argue that the “common
interest privilege should not be confined to pending litigation or even
communications in anticipation of litigation.” The physician defendants and
WDH rely on federal and state case law to support their argument that the
common interest doctrine should apply whenever a communication is made to
facilitate the provision of legal services to each of the clients involved, whether
or not litigation is pending. See, e.g., United States v. BDO Seidman, LLP, 492
F.3d 806, 816 (7th Cir. 2007); Hanover Ins. v. Rapo & Jepsen Ins. Services,
870 N.E.2d 1105, 1109-12 (Mass. 2007). Because we interpret Rule 502(b)(3)
by its plain language, the reasoning of these cases is inapplicable here.

¶22 WDH also argues that “[l]imiting the common interest privilege to
situations where litigation is anticipated or pending would upset the reliance
on the privilege by parties with common interests in many other common
scenarios.” The physician defendants assert that even if “pending or
reasonably anticipated litigation is necessary for the common interest privilege
to attach, the trial court erred when it concluded that litigation was not
reasonably anticipated” until June 27, 2019. (Capitalization and bolding
omitted.) They argue that because the physicians and WDH shared an intent
for the providers to become WDH employees, “despite the potential obstacles
from [Atlantic/NAPA-NH’s] contractual relationships with both,” litigation could
be “reasonably anticipated” as of May 2, 2019, when the physician defendants
and WDH entered into the common interest agreement. (Quotations omitted).
Given the plain language of the rule that requires litigation to be “pending,” we
are unpersuaded by these arguments. See Paul, 176 N.H. at 265. We disagree
that the common interest privilege should be interpreted broadly, and affirm
the trial court’s decision limiting the application of the common interest
doctrine.

2. The Crime-Fraud Exception (Questions 1, 2, 3)

¶23 The crime-fraud exception to the attorney-client privilege, set forth
in New Hampshire Rule of Evidence 502(d)(1), states that there is no privilege
under the rule “[i]f the services of the lawyer were sought or obtained to enable
or aid anyone to commit or plan to commit in the future what the client knew
or reasonably should have known to be a crime or fraud.” N.H. R. Ev.
502(d)(1). The party invoking the crime-fraud exception must “present
evidence: (1) that the client was engaged in (or was planning) criminal or
fraudulent activity when the attorney-client communications took place; and
(2) that the communications were intended by the client to facilitate or conceal
the criminal or fraudulent activity.” In re Grand Jury Proceedings, 417 F.3d
18, 22 (1st Cir. 2005) (quotation, brackets, and emphasis omitted).

¶24 The crime-fraud exception provides that the attorney-client
privilege does not apply to communications made “in aid of the commission or
planning of a crime or fraud,” and applies to communications “involving future

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wrong-doing, not to discussions or confessions of past misconduct.” N.H. R.
Ev. 502 Reporter’s Notes. That is, the privilege does not apply when a client
“seeks advice to aid him in carrying out an illegal or fraudulent scheme.” 1 R.
Mosteller et al., McCormick on Evidence § 95, at 668-69 (8th ed. 2020). The
United States Supreme Court has explained the rationale for the exception as
follows:

The attorney-client privilege must necessarily protect the
confidences of wrongdoers, but the reason for that protection—the
centrality of open client and attorney communication to the proper
functioning of our adversary system of justice—ceases to operate at
a certain point, namely, where the desired advice refers not to prior
wrongdoing, but to future wrongdoing. It is the purpose of the
crime-fraud exception to the attorney-client privilege to assure that
the seal of secrecy between lawyer and client does not extend to
communications made for the purpose of getting advice for the
commission of a fraud or crime.

United States v. Zolin, 491 U.S. 554, 562-63 (1989) (quotations, brackets,
emphases, and citations omitted).

¶25 The trial court observed in its October 2020 order that “[m]any
courts have taken a broad view of [the crime-fraud] exception,” and have
“applied it to types of conduct other than strict crimes or frauds.” See, e.g.,
Central Const. Co. v. Home Indem. Co., 794 P.2d 595, 598 (Alaska 1990)
(declining to accept the “argument that ‘crime or fraud’ should be narrowly
defined,” and holding “that services sought by a client from an attorney in aid
of any crime or a bad faith breach of a duty are not protected by the attorney-
client privilege”). Other courts, however, have declined to expand the
exception. See 1 R. Mosteller et al., McCormick on Evidence § 95, at 674
(noting that while a few courts have expanded the exception to include
intentional torts, most have not).

¶26 One federal district court, discussing proposed Federal Rule of
Evidence 503(d)(1), which is materially identical to New Hampshire’s Rule
502(d)(1), noted that the drafters of the proposed rule had rejected the view
that other wrongs and torts in which some element of planning is involved
should be equated with fraud. See Milroy v. Hanson, 902 F. Supp. 1029, 1033
(D. Neb. 1995) (“[T]he exception in Standard 503(d)(1) is . . . narrower . . . in
limiting the exception to communications in aid of crime or fraud rather than
to communications in aid of crime or tort.” (quotation omitted)). The court’s
reasoning in Milroy is consistent with our approach to rule interpretation. See
Paul, 176 N.H. at 265 (noting that, when interpreting a rule of evidence, we
look to the plain meaning of the words used). We therefore conclude that the
term “fraud” in the rule should be given its ordinary legal meaning, and that
the crime-fraud exception does not extend to tortious conduct generally.

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 [¶27] The first transferred question asks whether the “crime-fraud
exception to the attorney-client privilege . . . appl[ies] to tort claims for breach
of fiduciary duty or tortious interference.” An affirmative answer to this
question would expand the exception beyond the plain meaning of the word
“fraud,” and, as the physician defendants argue, would “have a chilling effect
on the ability of clients to seek legal advice” and thereby undermine the rule of
professional conduct that provides that “a lawyer may discuss the legal
consequence of any proposed course of conduct with a client and may counsel
or assist a client to make a good faith effort to determine the validity, scope,
meaning or application of the law.” N.H. R. Prof. Conduct 1.2(d). Answering
the question in the negative, however, would preclude the application of the
exception in cases in which there is a reasonable basis to conclude that the
client used the attorney to perpetrate a fraud, simply because a claim of fraud
has not been included in the complaint. We therefore decline to answer the
transferred question as framed and hold that the critical question in
determining whether the crime-fraud exception justifies abrogating the
attorney-client privilege is whether the client’s aim was to use the attorney to
perpetrate a fraud, irrespective of whether the complaint includes an allegation
of fraud.

¶28 The essence of fraud is a fraudulent misrepresentation. See Jay
Edwards, Inc. v. Baker, 130 N.H. 41, 46 (1987). To establish common law
fraud under New Hampshire law, “a plaintiff must prove that the defendant
made a representation with knowledge of its falsity or with conscious
indifference to its truth with the intention to cause another to rely upon it.”
Snierson v. Scruton, 145 N.H. 73, 77 (2000). In addition, the plaintiff must
prove that it justifiably relied upon the representation, to its detriment. Id.;
Ridlon v. N.H. Bureau of Sec. Regulation, 172 N.H. 417, 426 (2019).
Accordingly, the appropriate inquiry is not, as framed by the trial court,
whether there was a reasonable basis for believing that the physician
defendants breached their fiduciary duties and that WDH tortiously interfered
with Atlantic/NAPA-NH’s contractual relations and that each used the services
of Attorneys Best and Mullholland to accomplish the breach and the tortious
interference. Rather, the appropriate inquiry is whether there is a reasonable
basis to conclude that the physician defendants and WDH intended to use the
services of their attorneys to assist them in making a false representation to
Atlantic/NAPA-NH upon which they intended Atlantic/NAPA-NH to rely to its
detriment.

¶29 Atlantic/NAPA-NH has not alleged, nor does the record support,
that WDH intended to use Attorney Mulholland’s services to assist WDH in
making an intentional misrepresentation upon which it intended
Atlantic/NAPA-NH to rely. Accordingly, the crime-fraud exception does not
apply to the claim of tortious interference with contractual relations at issue
here.

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 [¶30] In finding that there was a reasonable basis to conclude that the
physician defendants used the attorneys’ services to perpetrate a breach of
fiduciary duties, the trial court found that the evidence supported the
determination that the physician defendants “were using the attorneys’ services
for what they understood or at least suspected were contrary to their
obligations to Atlantic/NAPA-NH.” Such a finding, however, is not sufficient to
establish that the physician defendants’ communications with their attorneys
were intended to assist them in making a representation, with knowledge of its
falsity or with conscious indifference to its truth, with the intention of having
Atlantic/NAPA-NH rely upon it. The trial court found that the May meetings
and communications surrounding the May meetings support the conclusion
that the physician defendants and WDH had engaged Attorneys Best and
Mulholland to facilitate discussions about legal questions of shared interest to
them. This finding is also insufficient to support the conclusion that the
physician defendants engaged counsel to assist them in perpetrating a fraud by
making an intentional misrepresentation, upon which they intended
Atlantic/NAPA-NH to rely to its detriment. Rather, it suggests that they
engaged legal counsel to navigate a complicated legal landscape. See Medical
Laboratory Management v. American Broad., 30 F. Supp. 2d 1182, 1207 (D.
Ariz. 1998) (crime-fraud exception did not apply where party sought the advice
of counsel to ensure conduct would “conform with the law”), aff’d, 306 F.3d
806 (9th Cir. 2002). As the physician defendants point out, non-compete
covenants in physician contracts have been deemed unenforceable since 2016,
see RSA 329:31-a (2017), and the lawfulness of the non-competition provisions
in the physicians’ contracts had not yet been considered by the trial court in
this case.

¶31 Atlantic/NAPA-NH asserts that the physician defendants breached
their fiduciary duties and that the trial court found that the physician
defendants “engaged Attorney Best for the purpose of keeping Atlantic/NAPA-
NH in the dark.” We do not read the trial court order to make such a finding.
Rather, the trial court found that the physician defendants’ failure to inform
Atlantic/NAPA-NH that WDH was disinclined to renew the Agreement and that
the physician defendants were discussing leaving Atlantic/NAPA-NH’s
employment “would likely have impacted the negotiations,” that Lehrer’s failure
to disclose information adverse to Atlantic/NAPA-NH’s interests was “likely” a
breach of fiduciary duty, and that the attorneys were present at meetings in
which this allegedly tortious conduct was discussed. Even if we assume,
without deciding, that the physician defendants’ failure to disclose this
information to Atlantic/NAPA-NH was a misrepresentation by omission,
Atlantic/NAPA-NH does not argue, nor does the record support the conclusion,
that it was a misrepresentation upon which the physician defendants intended
Atlantic/NAPA-NH to rely to its detriment. Accordingly, we conclude that
Atlantic/NAPA-NH did not carry its burden to show that the crime-fraud
exception applies to the claims of breach of fiduciary duty and tortious

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interference with contractual relations at issue here. See F.D.I.C., 202 F.3d at
460.

3. Disclosure of physician defendants’ attorney-client
communications under a theory of necessity (Question 6)

¶32 In its April 18, 2023 order, the trial court ruled that certain
communications between the physician defendants and Attorney Best were
“presumably legitimate” and therefore not subject to disclosure pursuant to the
crime-fraud exception. Atlantic/NAPA-NH moved for reconsideration, arguing
that certain language from email communications between Attorney Best and
at least one of the physician defendants was not privileged. The email
communications relate facts about discussions between the physician
defendants, other Atlantic/NAPA-NH employees, and/or WDH relating to
Atlantic/NAPA-NH’s solicitation and breach of fiduciary duty claims.
Atlantic/NAPA-NH argued in its motion to reconsider that the quoted language
in the emails is the physician defendants’ best “contemporaneous recollection
of unprivileged facts,” and that the trial court had given the language “great
weight in determining that the crime-fraud exception applied.” Atlantic/NAPA-
NH also noted that the physician defendants had moved for summary
judgment on the basis that no evidence showed that they had solicited their
colleagues.

¶33 The trial court construed Atlantic/NAPA-NH’s argument that the
language in the emails at issue is the “best contemporaneous recitations of the
facts of which the clinicians showed they had little recollection” as an
argument that Atlantic/NAPA-NH had an “essential need” for disclosure. It
noted our statement that the attorney-client privilege “may not be absolute
when there is a compelling need for the information and no alternative source
is available.” McGranahan v. Dahar, 119 N.H. 758, 764 (1979). The trial court
then relied on case law that had developed in the psychotherapist-patient
privilege context, in which we held that the psychotherapist-patient privilege
may be pierced upon a finding of “essential need.” See Desclos v. S. N.H. Med.
Ctr., 153 N.H. 607, 615-19 (2006). Applying the Desclos analytical framework,
the trial court ruled that Atlantic/NAPA-NH had an “essential need” for certain
language set forth in the emails.

¶34 The trial court correctly observed that we stated in McGranahan
that the attorney-client privilege may not be absolute when there is a
“compelling need” for the information. McGranahan, 119 N.H. at 764.
However, we found no “compelling need” in McGranahan. Id. Nor have we
found a compelling need that justified piercing the attorney-client privilege in
any subsequent case. Here, the trial court applied case law that had developed
in the medical records context to determine that the information was material
and relevant and unavailable from another source, and that there was a

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compelling justification for the information’s disclosure. See Desclos, 153 N.H.
at 615-18. Regarding compelling justification, the trial court ruled that a
showing that a party in a civil case would be deprived of a fair trial were it
denied access to attorney-client privileged information presents a sufficiently
important public interest to qualify as a compelling justification to pierce the
privilege. Cf. id. at 618 (establishing standard to justify piercing
psychotherapist-patient privilege). In ruling as it did, the trial court decided
questions of first impression without the benefit of legal argument from the
parties. On appeal, the physician defendants argued in their opening brief that
the trial court erred as a procedural matter when it considered Atlantic/NAPA-
NH’s argument that portions of the emails should be disclosed, and that the
trial court erred when it ruled that Atlantic/NAPA-NH had met the “compelling
need test.” (Quotation omitted). It was not until they filed their reply brief that
the physician defendants argued that the Desclos test is “ill-suited to analyzing
an essential need for attorney-client communications.” (Quotation omitted).
Atlantic/NAPA-NH did not request permission to file a response to the
physician defendants’ reply brief. See Sup. Ct. R. 16(7).

¶35 Because the legal issues have not been fully briefed in either the
trial court or this court, we decline to decide whether the trial court erred when
it ruled that certain quoted language in the emails would not remain shielded
by the attorney-client privilege. Instead, we vacate the trial court’s ruling and
remand so that these issues can be fully litigated, in the first instance, in the
trial court.

B. Attorney Depositions – Superior Court Rule 36(d)(5)(i)

¶36 In November 2022, Atlantic/NAPA-NH requested that the trial court
compel the depositions of Attorneys Best and Mulholland. Atlantic/NAPA-NH
asserted that the attorneys led the discussions during the May 6 and May 20,
2019 meetings between WDH and the Atlantic providers, and are important
fact witnesses regarding what occurred during the meetings and the
communications regarding the “terms of and process by which the Atlantic
providers would become employees of WDH.” The physician defendants
objected on the grounds that: (1) the request to depose Attorney Best was
untimely under the court’s rules; (2) Atlantic/NAPA-NH had failed to
demonstrate that no other means exist to obtain the information than to
depose opposing counsel; and (3) there had been no showing that the
information sought is not privileged. WDH objected to the motion on the same
grounds. In its April 18, 2023 order, the trial court granted the motion in part,
and ordered Attorneys Best and Mulholland to sit for depositions.

¶37 In ruling on Atlantic/NAPA-NH’s motion, the trial court applied the
test set forth in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th
Cir. 1986). Under that test, a party’s attorney should not be ordered to sit for a
deposition except when the party seeking the deposition “has shown that (1) no

14
other means exist to obtain the information than to depose opposing counsel;
(2) the information sought is relevant and nonprivileged; and (3) the
information is crucial to the preparation of the case.” Shelton, 805 F.2d at
1327 (citation omitted).

¶38 Applying the Shelton test, the trial court found that the information
sought was relevant and nonprivileged because the crime-fraud exception
vitiates the privilege up until November 4, 2019, that Atlantic/NAPA-NH’s
claims involved allegations that the physician defendants and WDH colluded in
order to get around the restrictive covenants, that information about what the
two attorneys discussed about WDH hiring the providers was very likely crucial
to Atlantic/NAPA-NH’s claims, and that Atlantic/NAPA-NH has no other means
to obtain the information discussed between the attorneys except by deposing
them. After so finding, the trial court ordered Attorneys Best and Mulholland
to sit for depositions, but limited the scope “to conversations they had with
each other not in the presence of other witnesses who have been or will be
deposed and that relate to the alleged breaches of fiduciary duties and tortious
interference.”

¶39 As we read the order, the trial court relied upon its ruling that the
crime-fraud exception applies when it concluded that the information
Atlantic/NAPA-NH seeks from Attorneys Best and Mulholland is not shielded
by attorney-client and/or work product privilege. In light of our holding today
that the crime-fraud exception does not apply, we vacate the trial court ruling
and remand the issue for further proceedings consistent with this opinion, and
therefore do not reach transferred question 5.

¶40 For the foregoing reasons, we hold that the common interest
doctrine did not apply until June 27, 2019 and that the crime-fraud exception
does not apply to the claims of breach of fiduciary duty and tortious
interference with contractual relations at issue here. We vacate the trial
court’s ruling that Atlantic/NAPA-NH may depose Attorneys Best and
Mulholland. We also vacate the trial court’s ruling that “compelling need”
requires the disclosure of certain language in the email communications
between Attorney Best and the physician defendants so that this issue can be
fully litigated in the trial court.

Affirmed in part; reversed in part;
vacated in part; and remanded.

DONOVAN, J., concurred; ABRAMSON, J., retired superior court justice,
specially assigned under RSA 490:3, II, concurred.

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