By NANCY WEST, InDepthNH.org
The lawyer for NHPR, two of its reporters and an editor has asked the judge in the defamation lawsuit against them to vacate or modify his order requiring they turn over interviews and other documents for a story 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 charges against three men in connection with the vandalism of homes associated with the story’s lead reporter Lauren Chooljian and editor Dan Barrick. The vandalism occurred after New Hampshire Public Radio posted the story March 22, 2022 accusing Spofford, the founder and former owner of Granite Recovery Centers, of sexual misconduct.
Spofford is well known for speaking out 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 is still in business dealing with real estate, business coaching and chartering his $6 million yacht.
Tucker Cockerline, 32, of Salem, N.H., Michael Waselchuck, 35, of Seabrook, N.H. and Keenan Saniatan, 36, of Nashua, N.H. were each charged last week with conspiring to commit stalking through interstate travel in connection with the vandalism.
The affidavit in support of the criminal complaint indicates “there is probable cause to believe the three defendants who were 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 news story that NHPR published in March 2022 detailing allegations of sexual misconduct by a former New Hampshire businessperson and close, personal associate of Subject 2,” Schutz wrote last week in his latest motion.
In the affidavit, the close, personal associate of Subject 2 who is identified only as Subject 1, appears to be Spofford, Schutz wrote. Spofford is not charged with the vandalism and has denied being part of it.
“After the April (2022) vandalisms 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 materially altered the Article regarding Subject 1.
“Those efforts culminated in a meeting between representatives of Subject 1 and NHPR on May 20, 2022, during which NHPR once again declined 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 spray paint,” the affidavit states.
Spofford’s attorney Michael Strauss declined comment on NHPR’s motion.
The original NHPR story alleged Spofford sexually harassed a former client and sexually assaulted two employees when he was CEO of GRC. Spofford denied the allegations and no related criminal charges were filed against him.
Chooljian, Barrick and reporter Jason Moon are named in the defamation suit along with NHPR.
Schutz also requested expedited consideration of the motion because of the continuing costs associated with Rockingham Superior Court Judge Dan St. Hilaire ruling that NHPR must turn over NHPR documents for him to review in camera.
St. Hilaire dismissed Spofford’s lawsuit before trial on April 17 saying it didn’t show actual malice. The dismissal order deemed Spofford to be a public figure over his objection that only a jury can make that determination.
St. Hilaire gave Spofford 30 days to amend his complaint to include examples of actual malice, after which Spofford’s attorney Strauss filed a motion seeking limited discovery claiming only NHPR had access to interviews that could show actual malice.
St. Hilaire granted most of Spofford’s motion for limited discovery to determine whether there is information that could show actual malice by NHPR.
“The NHPR defendants do not believe there is a basis in law for ordering discovery after the court dismissed Spofford’s complaint for failure to state a claim. But they decided not to pursue an appeal, as submission of records to the court for in camera review appeared to be the surest and shortest path to ending this litigation,” Schutz wrote.
Schutz said a great deal of time and money are now being spent to identify, collect, redact, and review the materials the court requested.
“The criminal complaint calls into question key claims made in Spofford’s complaint against NHPR. Spofford’s complaint asserts that ‘[t]he NHPR Defendants knowingly weaponized a conspiratorial connection between Eric and the alleged vandalism,’ and that ‘[t]here was not a scintilla of evidence connecting Eric to the alleged vandalism . . . .
“But federal investigators have now 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 about Spofford,” Schutz wrote.
“Because this is squarely at odds with a major contention in Spofford’s complaint, the NHPR defendants request that the court consider whether Spofford is acting in good faith in continuing to pursue this lawsuit and whether the unusual procedure it has ordered is still warranted and appropriate,” Schutz wrote.
NHPR believes the lawsuit was filed to harass and retaliate against a news organization for its journalism, Schutz wrote.
“Given that Spofford has been linked to criminal activity designed to punish NHPR personnel for exercising their First Amendment rights, the NHPR defendants submit that the time for giving him the benefit of the doubt has passed,” Schutz wrote. “At this point, the balance between the NHPR Defendants’ First Amendment interests and any competing interests has shifted decidedly in favor of NHPR.”
If St. Hilaire does not vacate his discovery order, the criminal charges at least justify expanding the scope of cost-shifting, Schutz wrote.
St. Hilaire has already ordered Spofford to pay to have recorded interviews transcribed for the judge’s in camera inspection.
If St. Hilaire finds what he calls actual malice, the documents could be turned over to the parties in the case, after they are given a chance to object.
St. Hilaire defined actual malice previously as requiring “’a reckless disregard for the truth,’ or a ‘subjective awareness of probable falsity’ shown through ‘sufficient evidence to permit the conclusion that the defendants in fact entertained serious doubts as to the truth of (their) publication.’”
NHPR defendants have to 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 vendor and about $20,000 in attorney time, Schutz wrote.
That is on top of the approximately $10,000 or greater cost of transcribing the many hours of interviews that the court has ordered Spofford to pay.
“If the Court does not vacate its discovery order, Spofford should be required to pay the full cost of this exercise, including attorney’s fees,” Schutz wrote.
He also suggested on alternative that the judge could narrow his order to require only the submission for in camera review of the voluminous interview transcripts.
“If Spofford’s theory of the case were correct, the court would presumably see evidence of that in the interviews, which would not match what NHPR reported, or would be not credible in obvious ways.
“Confining this limited discovery process to in camera review of the interview transcripts would at least reduce the intrusion into protected First Amendment interests, including NHPR’s deliberative and editorial processes, and the associated cost,” Schutz wrote.
Because the criminal complaint and supporting affidavit raise serious questions about Spofford’s good faith in continuing to pursue the lawsuit, the court should either vacate its discovery order; or require that Spofford agree to additional cost-shifting and narrow the scope of the limited discovery it has ordered to the submission of anonymized transcripts only, Schutz wrote.
NHPR recently released a seven-part podcast by Chooljian that expands on the Spofford story and addiction treatment facilities called “The 13th Step.”