UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

v. Civil No. 05-cv-365-JD

Town of Madison, et al.

O R D E R

Samuel J. Bourne, proceeding pro se, moves for imposition of

sanctions against the defendants, whom he accuses of concealing

and destroying evidence in this case. His motion appears to be

prompted by an issue addressed at a Board of Selectmen’s meeting

on December 15, 2009, concerning shredding sensitive documents

that were then in cold storage. The defendants object to the

motion. Bourne seeks leave to file a reply, which is granted.

In support of his motion, Bourne reviews what he considers

to be multiple instances of discovery abuse in this case and in

the related state court litigation and concludes that the

defendants have concealed and destroyed evidence that should have

been disclosed in this case. His suspicions were aroused by a

reference in the minutes of selectmen’s meeting to shredding

sensitive documents. Bourne concludes that the defendants have

concealed and destroyed evidence that should have been disclosed

in this case. As a remedy, he asks the court to impose money

sanctions against the defendants, to preclude the defendants from

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using all of the evidence the defendants intend to use in this

case, to grant a directed verdict or default against the

defendants, to order criminal sanctions against them, to order

the United States Marshal Service to investigate and prosecute

the defendants, to order the defendants to produce concealed

emails or to pay for every subpoena and deposition of the email

addressees of concealed emails, and to instruct the jury that a

presumption against the defendants arises from the destruction of

evidence.

The defendants point out that the minutes of the selectmen’s

meeting show that the town was merely considering shredding old

documents, not that documents pertinent to this case have been

destroyed. They submit the affidavit of Marcia Shackford, the

Town Clerk of Madison, who states that no documents have been

shredded, that the purpose of the requisition for a shredder

mentioned in the minutes was a low cost means of disposing of old

documents that contain private information. Shackford represents

that none of the documents scheduled for shredding pertain to

this litigation, Bourne, or Class VI roads. 

Bourne distrusts Shackford, along with the other town

officials, and reiterates his belief that the defendants have

intentionally withheld and concealed documents responsive to his

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discovery requests. Bourne’s suspicions and conjecture, however,

are insufficient to support his motion.

The defendants also note that the emails and documents

Bourne claims were concealed are not responsive to his discovery

requests in this case. Most of the discovery requests and

responses that Bourne relies on to show discovery abuse are from

the state litigation. The letter responses by Robert King do not

show discovery abuses in this case, and to the extent the court’s

intervention in discovery was needed, that was addressed by

Bourne’s counsel. Bourne has not shown that the defendants have

engaged in discovery abuses in this case.

Conclusion

For the foregoing reasons, the plaintiff’s motion for leave

to file a reply (document no. 185) is granted, and the reply was

considered in support of the plaintiff’s motion for sanctions

(document no. 174), which is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

February 23, 2010

cc: Samuel J. Bourne, pro se

Brian J.S. Cullen, Esquire

Richard D. Sager, Esquire

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