Justia New Hampshire Supreme Court Opinion Summaries

Several physicians who were employed by an anesthesia practice left their positions and became employees of a hospital with which their former practice had a service contract. The physicians had previously sold their ownership interests in the practice to another entity, and their employment contracts contained restrictive covenants, including non-compete and non-solicitation provisions. After the hospital indicated it might not renew its contract with the practice, the physicians and hospital administrators began discussing future employment arrangements, retaining legal counsel and entering into a common interest agreement. The hospital ultimately sent notice of nonrenewal, and the physicians resigned and signed employment contracts with the hospital. The anesthesia practice and its parent company sued the physicians and the hospital, alleging breach of contract, tortious interference, misappropriation of trade secrets, breach of fiduciary duty, and civil conspiracy. The hospital also sued the practice, seeking to bar enforcement of the restrictive covenants.The Hillsborough County Superior Court (Northern District) issued several orders during discovery, compelling the hospital and physician defendants to disclose certain communications they claimed were protected by attorney-client privilege and the common interest doctrine, and ordering their counsel to sit for depositions. The court found that the crime-fraud exception to privilege applied to alleged breaches of fiduciary duty and tortious interference, and limited the application of the common interest doctrine to communications after litigation was pending. It also ordered disclosure of some privileged communications under a theory of necessity.On interlocutory appeal, the Supreme Court of New Hampshire held that the crime-fraud exception to attorney-client privilege does not apply to claims of breach of fiduciary duty or tortious interference with contractual relations. The court affirmed the trial court’s ruling that the common interest doctrine did not apply until litigation was pending, but vacated the orders permitting depositions of counsel and requiring disclosure of privileged communications under a necessity theory, remanding those issues for further proceedings. The disposition was affirmed in part, reversed in part, vacated in part, and remanded. View "Atl. Anesthesia, P.A. v. Lehrer" on Justia Law