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Rule 25 – Discovery of Electronically Stored Information (ESI)

May 14, 2021 | Civil Procedure, New Hampshire

(a) Promptly after litigation is commenced, the parties must meet and confer about preservation of any electronically stored information (ESI). In the absence of an agreement, any party may move for an order governing preservation of ESI. Because the parties require a prompt response, the court must make an order governing preservation of ESI as soon as possible.
(b) The parties have a duty to preserve all potentially relevant ESI once the party is aware that the information may be relevant to a potential claim. Counsel for the parties have a duty to notify their clients to place a “litigation hold” on all potentially relevant ESI.
(c) Requests for ESI shall be made in proportion to the significance of the issues in dispute. If the request for ESI is considered to be out of proportion to the issues in the dispute, at the request of the responding party, the court may determine the responsibility for the reasonable costs of producing such ESI.
(d) A party may serve on another party a request for designated ESI, including documents, email messages and other electronically recorded messages and communications, photographs, sound recordings, drawings, charts, graphs and other data or data compilations, including back-up and archived copies of ESI – stored in any medium from which information could be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.
(e) The request must describe with reasonable particularity each item or category of items to be produced. The request must also state the form or forms in which ESI is to be produced.
(f) The responding party must respond to each item or category of items or state an objection to the request including the basis of the objection, within 30 days of the receipt of the request.
(g) The responding party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.
(h) The responding party need not produce the same ESI in more than one form.
(i) The responding party does not waive privileged information by its inadvertent disclosure under this rule.
(j) Inadvertently disclosed privileged ESI is subject to “claw-back” at the request of the responding party. If agreement is not reached by opposing counsel or the litigants concerning any “claw-back” requests, the court may decide any disputes.
(k) A party may also serve on another party a request to permit the requesting party and or its representatives to inspect, copy, test or sample the ESI in the responding party’s possession or control.

N.H. R. Super. Ct. 25

Comment

This rule codifies electronic discovery in New Hampshire. The discovery of electronically stored information (ESI) stands on equal footing with the discovery of paper documents. It is likely that the growth of ESI and the systems for the creating and storing of such information will continue to be dynamic as technology continues to advance. For that reason, this Rule does not seek to precisely define ESI.

Self-represented persons are also subject to the duty to preserve such ESI.

For a resource to both litigants and judges dealing with the issues of electronically stored information, reference is made to “Navigating the Hazards of E-discovery” published by the Institute of the Advancement of the American Legal System.

This Rule is similar to Fed. R. Civ. P. 34 but with some changes.