New Hampshire’s Proportional and Automatic Discovery Rules (the “NH PAD Rules”) went into effect for civil and equity cases on March 1, 2013. The NH PAD Rules have been in effect as a pilot program in Carroll and Strafford counties since October 1, 2010, and in Hillsborough County since October 1, 2012.
The following summarizes the most significant changes to New Hampshire civil procedure from these new rules. If you are involved in litigation in New Hampshire, you and your attorney should be aware of these rules and the strict requirements they impose.
All New Hampshire Superior Court rules that do not directly contradict the NH PAD rules will remain in effect. The Superior Court rules that do contradict the NH PAD rules will eventually be amended.
Some are exempt from the NH PAD rules, including notice of bond claims, petitions for the return of property, petitions to confirm an arbitration award, zoning board appeals, and planning board appeals. Exempt cases will continue to follow the traditional Superior Court Rules. A full list of exempt cases may be found here.
The NH PAD Rules – The Biggest Changes
The following is a list of the biggest changes imposed by the NH PAD Rules.
1) A Complaint, Not a Writ of Summons (NH PAD Rule 1)
The NH PAD rules abolish the Writ of Summons and replace it with a complaint and answer consistent with the federal pleadings system. The complaint must set forth a “claim for relief,” including a statement of the material facts, a showing of entitlement to relief, and a demand for judgment for the type or types of relief requested. This format must be used when introducing any new claim of relief regardless whether it is a cross-claim, third-party claim, counter-claim, or original claim. This new pleading format better notifies the opposing party and the court of the issues of fact and law to be adjudicated.
2) An Answer Must Be Filed (NH PAD Rule 1)
Under the NH PAD rules, an answer must be filed within 30 days of service of the complaint or other claim for relief. Like the federal format, the answer must specifically admit or deny each allegation from the other side. A general denial of all allegations in the complaint is insufficient. The answering party must expressly state when it does or does not have knowledge or information sufficient to form a belief as to the truth of the allegation. That statement will have the effect of a denial.
3) Parties Must File a Proposed Case Structuring Order Within 20 Days of the Answer Date (NH PAD Rule 2)
Within 20 days of the filing of the answer, the parties must confer regarding a schedule for the case. By the end of the 20-day period, the parties must file a written stipulation setting forth the parties’ agreement as to all of the deadlines in the case, and whether a jury trial or the statutory expert disclosure requirements will be waived. This requirement is substantially similar to Superior Court Rule 62. However, unlike the present rule, under the NH PAD rules, the parties’ stipulation presumptively becomes the structuring conference order. As a result, the need for a pretrial structuring conference will generally be eliminated. If the parties are unable to reach an agreement, a structuring conference will be held telephonically.
4) Parties Must Make Automatic Disclosures (NH PAD Rule 3)
Without waiting for a discovery request, parties must disclose the contact information of any person who may have discoverable information and a summary of the information those persons may possess. In addition, parties must produce copies of all documents, electronically-stored information, and tangible things that they will use to support their claims or defenses unless the document would be used solely for impeachment; provide a computation of their damages (if applicable); and disclose any insurance agreements (if applicable).
Although similar to the Federal Rule, the NH PAD rule requires a more detailed disclosure. The NH PAD rule requires parties to actually produce copies of documents without a discovery request, whereas the federal rule only requires a description of those documents. In addition, the federal rule only requires parties to list the “subjects” about which a witness would testify, while the NH PAD rule requires a specific disclosure of the facts and information that person possesses.
If a party fails to comply with this requirement or fails to provide automatic disclosures in a “timely” manner, he or she may be sanctioned for discovery abuse.
5) Limits on Interrogatories and Depositions (NH PAD Rule 4)
The NH PAD rules introduce new limits on interrogatories and depositions. Although parties may still take as many depositions as they believe necessary, the total number of cumulative deposition hours may not exceed 20 hours. The parties may agree to a greater number of hours, or move for a court order to extend the number of hours. In addition, the NH PAD rules further reduce the number of interrogatories that may be propounded from the 50 permitted under current Superior Court Rule 36 to just 25 interrogatories.
6) Electronic Discovery (NH PAD Rule 5)
New Hampshire did not previously have a rule codifying electronic discovery. NH PAD Rule 5 creates a procedure for the preservation and production of electronically-stored information (“ESI”). Parties have a duty to preserve all potential relevant ESI once the party is aware that the information is relevant to a claim and to “meet and confer” about the preservation of ESI promptly after litigation is commenced (ideally when the parties meet for purposes of the structuring conference order). This Rule makes “legal hold” or “litigation hold” letters critical.
All requests for ESI must be proportional to the significance of the issue in the dispute and describe with reasonable particularity each item or category of items as well as the format in which they should be produced. Any inadvertently-disclosed information will be subject to “claw-back” at the request of the responding. If privileged information is inadvertently disclosed, the privilege will not be waived.
7) New Forms Under the NH PAD Rules
As a result of the NH PAD rules, some Superior Court forms have changed, including the forms for structuring orders, petitions to attach with notice, and petitions for ex parte attachment. These new forms can be found here.
The NH PAD Rules may seem strict, but they merely attempt to bring New Hampshire civil procedure into conformity with the federal rules and other states’ practices across the country. They will likely result in increased efficiency and the conservation of judicial resources early on in litigation.