By NANCY WEST, InDepthNH.org
A lawyer for NHPR, two of its reporters and an editor have asked the judge in the defamation case against them to lift or modify his order requiring them to turn over interviews and other documents for a story from last year about Eric Spofford for the judge’s review because of new developments in the case .
Attorney Sigmund Schutz referred to the June 16 indictment of three men in connection with the vandalism of homes linked to the story’s lead reporter Lauren Kuliyan and editor Dan Barrick. The vandalism occurred after New Hampshire Public Radio published a story on March 22, 2022 accusing Spofford, the founder and former owner of Granite Recovery Centers, of sexual misconduct.
Spofford is well known for speaking openly about his own long-term recovery from heroin addiction and business success. He reportedly sold GRC for $115 million, bought a $20 million mansion in Miami, and still dabbles in real estate, business coaching and chartering his $6 million yacht.
Tucker Cockerline, 32, of Salem, NH, Michael Waselchuk, 35, of Seabrook, NH and Keenan Saniathan, 36, of Nashua, NH, were charged last week with conspiracy to commit interstate stalking in connection with the vandalism.
The affidavit in support of the criminal complaint indicates that “there is probable cause to believe that the three defendants who have been charged conspired with each other and with at least one other person identified . . as “Subject 2” to harass and intimidate two [NHPR] employees. . . in retaliation for a story NHPR published in March 2022 detailing allegations of sexual misconduct by a former New Hampshire businessman and close personal associate of Subject 2,” Schutz wrote last week in his latest motion.
In the affidavit, a close, personal associate of Subject 2, who is identified only as Subject 1, appears to be Spofford, Schutz wrote. Spofford has not been charged with the vandalism and denied being part of it.
“Following the vandalism in April (2022) and continuing until at least May 20, 2022, Subject 1’s legal representatives continued to threaten NHPR with a defamation lawsuit unless NHPR retracted or substantially amended the article regarding Subject 1.
“These efforts culminated in a meeting between representatives of Subject 1 and NHPR on May 20, 2022, during which NHPR again refused to retract the article or remove it from its website. The following day, on May 21, 2022, two homes associated with Victim 1 (Chooljian) were vandalized with bricks and red paint,” the affidavit said.
Spofford’s attorney, Michael Strauss, declined to comment on NHPR’s request.
The original NHPR story alleged that Spofford sexually harassed a former client and sexually assaulted two employees when he was CEO of GRC. Spofford denied the allegations, and no related charges were filed against him.
Chooljian, Barrick and reporter Jason Moon are named in the defamation suit along with NHPR.
Schutz also asked for expedited consideration of the proposal because of the ongoing costs associated with Rockingham Superior Court Judge Dan St. Hilaire’s ruling that NHPR must turn over documents to NHPR to review in camera.
St. Hilaire dismissed Spofford’s lawsuit before the April 17 trial, saying it did not show actual malice. The dismissal order deemed Spofford a public figure, despite his objection that only a jury could make that decision.
St. Hiller gave Spofford 30 days to amend his complaint to include examples of actual malice, after which Spofford’s attorney Strauss filed a motion for limited disclosure, arguing that only NHPR had access to interviews that could show actual malice. malice.
St. Hilaire granted most of Spofford’s request for limited discovery to determine whether there was information that could show actual malice on the part of NHPR.
“The NHPR Defendants do not believe there is a basis in law for a discovery order after the court dismissed Spofford’s complaint for failure to state a claim. But they decided not to appeal because making the records available to the court for in camera review seemed the surest and shortest path to ending this litigation,” Schutz wrote.
Schutz said a lot of time and money is now being spent identifying, collecting, editing and reviewing the materials requested by the court.
“The criminal complaint calls into question key allegations made in Spofford’s complaint against NHPR. Spofford’s complaint alleges that “[t]The NHPR Defendants knowingly exploited a conspiratorial connection between Eric and the alleged vandalism, and that “[t]here was no evidence linking Eric to the alleged vandalism. . . .
“But federal investigators have already determined that a close personal associate of Spofford’s — with whom Spofford communicated regularly, including around the time of the vandalism — was part of a conspiracy to criminally harass and intimidate NHPR journalists for their reporting on Spofford,” Schutz wrote .
“Because this is in stark contrast to the central allegation in Spofford’s complaint, the NHPR Defendants ask the court to consider whether Spofford acted in good faith by continuing to pursue this case and whether the unusual procedure it ordered is still justified and appropriate ,” Schutz wrote.
NHPR believes the lawsuit was filed in harassment and retaliation against a news organization for its journalism, Schutz wrote.
“Given that Spofford is involved in criminal activity designed to punish NHPR personnel for exercising their First Amendment rights, the NHPR defendants argue that the time to give him the benefit of the doubt has expired,” Schutz wrote. “At this point, the balance between the NHPR Defendants’ First Amendment interests and all competing interests has decisively shifted in NHPR’s favor.”
If St. Hilaire doesn’t lift its discovery order, the criminal charges at least justify expanding the cost-shifting scope, Schutz wrote.
St. Hilaire has already ordered Spofford to pay to have taped interviews transcribed for the judge’s in-camera review.
If St. Hilaire finds what he calls actual malice, the documents could be turned over to the litigants after they have been given an opportunity to object.
St. Hilaire defined actual malice earlier as requiring a “‘reckless disregard for the truth’ or a ‘subjective awareness of probable falsity’ shown by ‘sufficient evidence to support the conclusion that the defendants did in fact entertain serious doubts as to the truth of (their) publication.’ “
NHPR respondents must potentially review over 120,000 documents. The estimated cost is expected to be about $15,000, and possibly significantly more, to be paid to an e-discovery provider and about $20,000 in attorney’s time, Schutz wrote.
That’s in addition to costs of about $10,000 or more to transcribe many hours of interviews, which the court ordered Spofford to pay.
“If the court does not vacate its discovery order, Spofford should be ordered to pay the full costs of this exercise, including attorneys’ fees,” Schutz wrote.
He also suggested as an alternative that the judge could narrow his order to only require production for an in camera review of the voluminous interview transcripts.
“If Spofford’s theory of the case were true, the court would likely see evidence of it in the interviews that would not match what NHPR reported or would not be credible in obvious ways.”
“Limiting this limited discovery process to a review of the in camera interview tapes would at least reduce the intrusion on protected First Amendment interests, including the NHPR’s deliberative and editorial processes, and the associated costs,” Schutz wrote.
Because the criminal complaint and supporting affidavit raise serious questions about Spofford’s good faith in continuing to prosecute the case, the court must either vacate its discovery order; or require Spofford to agree to additional cost-shifting and to narrow the scope of the limited discovery he ordered to providing only anonymized transcripts, Schutz wrote.
NHPR recently released a seven-part podcast by Chooljian that expands on the story of Spofford and addiction treatment facilities called “The 13th step.