By NANCY WEST, InDepthNH.org
BRENTWOOD – Eric Spofford has filed a motion seeking the recorded interviews with some of the sources that New Hampshire Public Radio used in reporting the story that he claims defamed him.
The story – published March 22, 23, 2022 – claimed Spofford, the founder and former owner of Granite Recovery Centers, sexually assaulted two former employees and sexually harassed one former client, all of which Spofford adamantly denies.
Rockingham Superior Court Judge Daniel I. St. Hilaire dismissed the lawsuit nine days ago but allowed Spofford 30 days to amend his complaint to focus on allegations of actual malice.
Because St. Hilaire ruled Spofford a limited public figure in dismissing the suit, he said Spofford must show actual malice, reporting “with knowledge that the statement was false or with reckless disregard of whether it was false or not.”
If Spofford were considered a private citizen, he would only have to prove the reporting was reckless.
The lawsuit names senior reporters Lauren Chooljian and Jason Moon, and editor Dan Barrick along with three sources for the story.
NHPR’s lawyer Sigmund Schutz responded by email Wednesday night.
“NHPR will be opposing this latest motion filed by Mr. Spofford’s attorneys,” Schutz said.
Spofford’s attorneys Michael Strauss and Joseph Cacace are seeking limited discovery to cure the deficiencies St. Hilaire found in Spofford’s original complaint that led to the judge dismissing the case before trial.
They are seeking unredacted recordings of NHPR’s interviews of “Elizabeth”, “Employee A”, Nancy Bourque, Justin Downey, Piers Kaniuka, and Brian Stoesz, according to the motion filed Wednesday by Strauss and Cacace.
The lawyers are also seeking Lauren Chooljian’s notes concerning and communications with them, along with her notes with Lynsie Metivier, and recordings (if any) of their March 22, 2022, phone call; and Chooljian’s notes and communications with the mother of Spofford’s eldest son, Amy Cloutier (formerly Anagnost), and recordings (if any) of her interviews.
Metivier had previously been the human resources director at Granite Recovery Centers and called Chooljian soon after the story ran to say she never heard of any such allegations against Spofford, which wasn’t reported in the story.
Spofford’s lawyers also asked St. Hilaire to stay the deadline to file his amended complaint until after the judge rules on the motion for limited discovery, and if granted until 30 days after NHPR turns over the requested recordings and notes.
In his dismissal order April 17, St. Hilaire pointed to Spofford’s amended complaint and his former status as a leader in the substance abuse disorder community testifying before the U.S. Senate and co-authoring a book on recovery as well as describing connections to former Vice President Mike Pence and Gov. Chris Sununu arising from his recovery expertise.
“In the court’s view Spofford cannot simultaneously claim that he had a nationally prominent reputation based on his inspirational story of recovery while also arguing he is not a public figure in the controversy surrounding opioid addiction,” St. Hilaire wrote.
The motion filed Wednesday quotes St. Hilaire saying, “In the Court’s view, the primary issue relevant to actual malice in this case is the reliability of NHPR’s sources.”
And “Absent clearer indicia that the NHPR Defendants . . . were subjectively aware that the information by these sources was probably false, the [original complaint] fails to allege actual malice.”
The NHPR defendants are the only ones who have the information Spofford needs to detail actual malice, the motion states.
The New Hampshire Constitution entitles Spofford to his day in court to hold the NHPR defendants accountable for defaming him, and “he should be given a fair opportunity to sufficiently allege actual malice,” the motion states.
Spofford also pointed to the 1985 state Supreme Court case by then-Justice David Souter, Nash v. Keene Publishing Corp., “recognizing that because credibility assessments are ‘extremely difficult’ without a trial, ‘the issue of malice does not readily lend itself to summary disposition.”’
Spofford had also previously argued against dismissing the case saying Souter found only the jury can determine who is and who isn’t a public figure in New Hampshire. St. Hilaire relied on a more recent case saying that it is up to the judge to make that determination.
Spofford doesn’t concede that his original complaint failed to allege actual malice against each defendant. “Nothing in this Motion should be construed as a waiver of Eric’s right to amend the complaint or appeal the Court’s ruling on the motions to dismiss,” the motion states.
In his order, St. Hilaire ruled Spofford was a limited-purpose public figure who must allege actual malice to proceed with his defamation and false light claims and concluded he failed to do so.
“At the heart of that conclusion, according to the Court, was the ‘reliability of NHPR’s sources.’ Despite acknowledging that Eric had alleged each source was biased, motivated to harm Eric’s reputation, and inherently unreliable, the Court determined those allegations were not ‘fatal’ to each source’s credibility,” the motion states.
All told, the Court wrote, “[a]bsent clearer indicia that the NHPR Defendants acted in bad faith in relying on these sources, or were subjectively aware that the information provided by these sources was probably false, the [original complaint] fails to allege actual malice.”
St. Hilaire granted Spofford leave to “amend his complaint to remedy the deficiencies identified” and to “supplement his allegations with facts indicative of actual malice.”
“For Eric to have a meaningful opportunity to do so, however, the Court should permit him access to information that is exclusively in the NHPR defendants’ control,” his lawyers argued.
“Requiring the NHPR defendants to produce the complete recorded interviews would permit Eric a fair ability to assess—then allege in his amended complaint—the NHPR defendants’ subjective beliefs and the plausibility of the sources’ accounts. It also would be consistent with the doctrine of completeness.
“The same is true for Chooljian’s notes about and communications with sources. If this story, as the NHPR defendants have ardently claimed, was meticulously investigated and reported, then this discovery would only serve to enhance their defense. If, alternatively, the NHPR defendants knew or recklessly disregarded the falsity of their reporting, then this discovery would fairly enable Eric to allege, with the ‘clearer indicia’ desired by the Court, their actual malice.
“The discovery Eric requests here will give him, at the very least, a fair opportunity to exercise his constitutional right to ‘obtain right and justice’ for the injuries he has suffered. To rule otherwise would arbitrarily preclude a defamation plaintiff from his day in court,” the motion states.
