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Rule 1.25 – Discovery

May 14, 2021 | Family Law, New Hampshire

A. General. Unless specified in another section of these rules, these discovery rules apply in all family division case types. The Court, in its discretion, may limit or expand the scope of discovery in any case as justice requires.
B. Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things; permission to enter upon land or other property for inspection and other purposes; physical or mental examinations; and requests for admission. Unless the Court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.
C. Scope of Discovery. Unless otherwise ordered, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
D. Expert Witnesses.

(1) Within thirty (30) days of a request by the opposing party, or in accordance with an order of the Court, a party shall be required to supply a Disclosure of Expert Witness(es) as defined under Rule 702 of the Rules of Evidence, which document shall:

(a) identify each person, including any party, whom the party expects to call as an expert witness at trial;
(b) provide a brief summary of the expert’s education and experience relevant to the expert’s area of expertise;
(c) state the subject matter on which the expert is expected to testify; and
(d) state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

The party shall attach to the disclosure a copy of any expert report relating to such expert.

(2) A party may discover facts known or opinions held by an expert, who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(3) Unless manifest injustice would result, (i) the Court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions 1.25 D (1) and 1.25 D (2) of this rule, and (ii) with respect and with respect to discovery obtained under subdivision 1.25 (D) (2), the Court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
E. Written Interrogatories.

(1) General. Any party may serve written interrogatories upon any other party, by mail or delivery by hand.

The parties may agree to transmit interrogatories electronically or by computer disk, enabling the answering party to provide answers directly after each separate question using the party’s available word processing technology.

Interrogatories may include any topic not subject to privilege. Furthermore, it is not grounds for refusal to answer a question that the testimony would be inadmissible at the hearing, if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

(2) Notice. The party requesting the interrogatories shall provide the other party with notice of the obligation to answer the interrogatories within thirty (30) days. The notice shall be at the top of the first page and printed in capital, typewritten letters or in ten-point, bold-face print. The form of the notice shall be as follows:

Notice: These interrogatories are propounded in accordance with Family Division Rule 1.25. You must answer each question separately and fully in writing and under oath. You must return the original and one copy of your answers within thirty (30) days of the date you received them to the party or attorney who served them upon you. If you object to any question, you must note your objection and state the reason for your objection. If you fail to return your answers within thirty (30) days, the party who served them upon you may inform the court, and the Court shall make such orders as justice requires, including the entry of a conditional default against you.

Interrogatories may be served at any time after service of the action.

(3) Copies. The party serving the interrogatories shall furnish the answering party with an original and two copies. The interrogatories shall be arranged so that after each separate question space will be provided to enable the answering party to respond.
(4) Answers. Interrogatories shall be answered in writing under oath by the party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, by an officer or agent who shall furnish all information available to the party.

Each question shall be answered separately, fully and responsively, such that the final document shall have each interrogatory immediately followed by its answer.

The party served with interrogatories shall provide the original and one copy of the answers, by mail or delivery in hand, to the party requesting them within thirty (30) days of receipt of the interrogatories. If, in any interrogatory, a copy of a paper or document is requested, only one copy need be included with the answers. If the copy is a report of an expert witness or a treating physician, it shall be the exact copy of the entire report or reports rendered by him, and the answering party shall certify that the existence of other reports of that expert, either written or oral, are unknown to the answering party and, if such become later known or available, the answering party shall serve them promptly on the requesting party.

(5) Extension of Deadlines. The parties may extend interrogatory deadlines by written agreement, provided any such extension is not inconsistent with discovery orders of the Court.
(6) Objections, Motions to Compel, Motions to Strike. If a party objects to any questions, that party may either answer the question by stating it is improper or may, within twenty (20) days after the service of interrogatories, move to strike any question, setting out the specific grounds of objection. The answering party shall make timely answer, however, to all questions to which that party does not object. All other interrogatories shall nonetheless be answered within the thirty days allowed, or within such time as the Court directs.

The party requesting the interrogatories who receives a response that one or more questions are improper, may within twenty (20) days, move to compel answer(s) to the question(s), and, if the motion is granted, the question(s) shall be answered within such time as the Court directs.

If a party, who is served with interrogatories requesting copies of papers, objects to furnishing them, that party may either state with specificity the reasons for non-compliance or invite the party seeking the copies to inspect and copy the papers at a designated time and place. The party seeking a copy of a paper which is not provided may within twenty (20) days of receipt of the answers file a motion seeking compliance.

Motions to strike interrogatories or to compel more specific answers shall include a statement summarizing the nature of the action and shall include the text of the questions and answers, if any, objected to.

When objections are made to interrogatories or requests for admissions, before there is any hearing regarding the objections, counsel for the parties shall attempt in good faith to settle the objections. It shall be the responsibility of counsel for the objecting party to initiate such attempt and to notify the Clerk if the objections are settled. If, following such conference, counsel are unable to settle objections, counsel for the objecting party shall notify the Clerk and request a hearing.

Where an objection to an interrogatory has been withdrawn or has been overruled by the Court, the answer to the interrogatory shall be provided within ten (10) days.

(7) Frivolous Motions. If the Court finds that a motion, which is made pursuant to this rule, was made frivolously or for the purpose of delay or was necessitated by action of the adverse party that was frivolous or taken for the purpose of delay, the Court may order the offending party to pay the amount of reasonable expenses, including attorney’s fees, incurred by the other party in making or resisting the motion.
(8) Limitations on Number of Interrogatories. A party may file more than one set of interrogatories to an adverse party, but the total number of interrogatories shall not exceed fifty (50), unless the Court otherwise orders for good cause shown after the proposed additional interrogatories have been filed. In determining what constitutes an interrogatory for the purpose of applying this limitation in number, it is intended that each question be counted separately, whether it is subsidiary or incidental to or dependent upon or included in another question, and however the questions may be grouped, combined or arranged.

The other party shall have the same privileges in answering written interrogatories as the deponent in the taking of a deposition.

(9) Supplementation of Responses. If a party, who has furnished answers to interrogatories, thereafter obtains information which renders such answers incomplete or inaccurate, amended answers shall be served in accordance with Family Division Rule 1.25 J.
(10) Use of Interrogatories. Interrogatories and answers may be used at the hearing to the same extent as depositions. If less than all of the interrogatories and answers are marked or read into evidence by a party, an adverse party may read into evidence any other of the interrogatories and answers or parts necessary for a fair understanding of the parts read into evidence.

Neither the interrogatories nor the answers need be filed with the Clerk unless the Court so directs.

(11) Failure to Answer. If the party, upon whom interrogatories have been served, fails to answer the interrogatories within thirty (30) days, unless written objection to the answering of the interrogatories is filed within that period, such failure will result in a conditional default being entered by the Clerk upon motion being filed indicating such failure to answer. The party failing to answer shall receive notice of the conditional default. The conditional default shall be vacated if the defaulted party answers the interrogatories within ten (10) days of receiving notice and moves to strike the conditional default. If the defaulted party fails to move to strike the conditional default within ten (10) days of receiving notice, the adverse party may move to have a default judgment entered and damages assessed. If, upon review of an affidavit of damages, the Court determines that it does not provide a sufficient basis for determining damages, the Court may, upon its own motion, order a hearing.
F.Request for Admissions

(1) Any party may ask the other to admit certain facts or the genuineness of documents or signatures by submitting a request for admissions with the court. If the request for admissions seeks the admission of the genuineness of documents or signatures, the documents and/or signatures shall be attached to the request. Copies of the complete request as filed with the court shall be delivered by mail or in hand to the other party.
(2) Each of the matters of which an admission is requested shall be considered to be admitted unless within 30 days after delivery of the request to the other party, the other party files with the clerk and delivers a copy by mail or in hand to the party requesting such admission, or to that party’s attorney, either a sworn denial or a written objection on the ground of privilege or that the request is otherwise improper. If an objection is made to part of a request, the remainder shall be answered within the time limit. When good faith requires that a party qualify an answer, or deny only part of the matter, the party shall specify so much of the answer as is true, or qualify or deny the remainder.
G. Depositions.

Notice shall be provided to any person whose deposition is requested. Twenty (20) days notice is considered reasonable in all cases, unless otherwise ordered by the Court.

Every notice of a deposition to be taken within the State shall contain the name of the stenographer/professional proposed to record the testimony.

When a statute requires formal notice of the taking of depositions to be given to the adverse party, it may be given to such party or the party’s attorney of record. Notices given pursuant to this rule may be given by mail or by service in hand. See RSA 517 et seq. If a subpoena duces tecum is to be served on the deponent, the notice to the adverse party must be served before service of the subpoena, and the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment.

The questions and answers shall be taken in shorthand or other form of verbatim reporting approved by the Court and transcribed by a competent stenographer/professional agreed upon by the parties or their attorneys. In the absence of such agreement, the stenographer/professional shall be designated by the Court. Failure to object in writing to a stenographer in advance of the taking of a deposition shall be deemed agreement to the stenographer/professional recording the testimony.

No deposition, as transcribed, shall be changed or altered, but any alleged errors may be set forth in a separate document attached to the original and copies.

Upon motion, the Court may order the filing of depositions, and, upon failure to comply with such order, the Court may take such action as justice may require.

The signature of a person outside the State, acting as an officer legally empowered to take depositions or affidavits, with an appropriate seal affixed, where one is required, to the certificate of an oath administered by him in the taking of affidavits or depositions, will be prima facie evidence of this person’s authority.

The person being deposed shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

If any person being deposed refuses to answer any question asked in the deposition, the party asking the question may request an order of the Court compelling an answer. If the motion is granted, and if the Court finds that the refusal was without substantial justification or was frivolous or unreasonable, the Court may, and ordinarily will, require the person deposed and the party or attorney advising the refusal, or either of them, to pay the examining or requesting party the reasonable expenses incurred in obtaining the order, including reasonable attorneys fees. If the motion is denied and if the Court finds that the motion was made without substantial justification or was frivolous or unreasonable, the Court may, and ordinarily will, require the examining party or the attorney advising the motion, or both of them, to pay to the witness the reasonable expenses incurred in opposing the motion, including reasonable attorneys fees.

H. Use of Videotape Depositions.

The Court, within its discretion, may allow the use of videotape depositions that have been taken by agreement; and provided further that, if the parties cannot reach such an agreement, the Court may, in its discretion, order the taking and/or use of such depositions. At the commencement of the videotape deposition, counsel representing the person deposed should state whose deposition it is, what case it is being taken for, where it is being taken, who the lawyers are that will be asking the questions, and the date and the time of the deposition. Care should be taken to have the witnesses speak slowly and distinctly and that papers be readily available for reference without undue delay and unnecessary noise. Counsel and witnesses shall comport themselves at all times as if they were actually in the courtroom.

If any problem arises as to the admissibility or inadmissibility of evidence, this should be handled in the same manner as written interrogatories.

A party objecting to a question asked of, or an answer given by, a witness whose testimony is being taken by videotape shall provide the court at the pretrial conference with a transcript of the videotape proceedings that is sufficient to enable the Court to act upon the objection before the hearing, or the objection shall be deemed waived.

I. Limits on Discovery. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the Court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the Court;
(6) that a deposition after being sealed be opened only by order of the Court;
(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and
(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court.

If the motion for a protective order is denied in whole or in part, the Court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.

J. Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under a continuing duty to supplement responses to include information thereafter acquired, as follows:

(1) A party is under a duty to supplement responses concerning any question regarding the identity:

(a) and location of persons having knowledge of discoverable matters; and
(b) of each person expected to be called as an expert witness, the subject matter on which the expert is expected to testify, and the substance of the testimony.
(2) A party is under a duty to amend a prior response if it is known that the response:

(a) was incorrect when made; or
(b) though correct when made, is no longer true.
K. Discovery Deadlines. The discovery dates established at a scheduling conference or other hearing are Court orders and may not be extended by the parties without written permission of the Court.
L. Abuse of Discovery. The Court, in its discretion, may sanction any party including through the use of fees and costs, for abusing the discovery process.

N.H. R. Cir. Ct. Fam. Div. 1.25