Denied! Superior Court for the Northern District of Hillsborough denies dueling motions for summary judgment
In a recent decision out of the Superior Court for the Northern District of Hillsborough (the “Court”), dueling motions for summary judgments submitted by Vermont Telephone Company, Inc. (“Plaintiff”) and FirstLight Fiber, Inc. (“Defendant”) were denied.
The conflict between Plaintiff and Defendant goes all the way back to 2014, when the parties entered into a Dark Fiber Lease Agreement (the “Contract”). The Contract provided that Plaintiff would have access to certain dark fiber running along a fixed route between Lebanon, New Hampshire and Boston, Massachusetts. The center of the parties’ dispute lies in the Contract’s confidentiality clause, which provides in relevant part, that no confidential information of either party be “divulged” to any third parties.
In June 2019, an employee of Plaintiff’s escorted a reporter into facilities where Defendant’s equipment was being stored. During these visits, the reporter took photographs of Defendant’s equipment, and then subsequently published an article which included the photographs. Defendant soon thereafter sent notice to Plaintiff that it was terminating the Contract due to Plaintiff’s breach of the confidentiality clause, which led to the filing of this suit, with both parties alleging claims of breach of contract against the other and filing competing motions for summary judgment.
In its analysis of the case, the Court first summarized its standard of review on cross motions for summary judgment, stating that it will view “the evidence presented in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, the Court will determine whether the moving party is entitled to judgment as a matter of law.” Citing JMJ Properties, LLC v. Town of Auburn, 168 N.H. 127, 129-30 (2015).
The confidentiality clause states that neither party shall “divulge” the other’s confidential information to any third parties. Plaintiff argued that it did not breach the confidentiality clause because it never “divulged” Defendant’s confidential information. Plaintiff explained that the applicable definitions of the word “divulge” require some affirmative action, of which Plaintiff never partook. Plaintiff contended that it was the reporter’s act of taking and publishing the photographs of Defendant’s equipment that caused Defendant’s harm, rather than an act of the Plaintiff or its employees. Defendant countered, arguing that it was the Plaintiff’s act of giving the reporter access to the equipment that was the affirmative step in divulging its confidential information. Defendant explained that the facilities where its equipment was housed were heavily secured and that Plaintiff had to take the reporter through several locked gates and doors in order to access the equipment. Plaintiff acknowledged that it took the reporter into the facilities for the purpose of taking photographs, but that it was only for the purpose of taking photos of Plaintiff’s equipment, and Plaintiff was unaware that the reporter took photos of Defendant’s equipment.
The Court found that for Plaintiff to have “divulged” Defendant’s confidential information, there must have been some intent or knowledge of the reporter taking the photographs. The Court reasoned that there was a material question of fact regarding whether Plaintiff purposely invited the reporter to the facility with the intent of allowing him to take and publish photographs of Defendant’s equipment, and therefore, a grant of summary judgment on the issue was inappropriate.
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