Inc. v. Consolidated Communications of Northern New England, LLC

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

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$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.)

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 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.

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 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.

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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

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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

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