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Bar News - October 6, 2006

Proposed Changes Affect Discovery, Structuring Conferences Rules


 Jennifer L. Parent
Jennifer L. Parent

         Following a public hearing in June, the New Hampshire Supreme Court Advisory Committee on Rules recommended for adoption several proposed rule changes to the Supreme Court. The Court is now seeking comments on these proposed rules on or before Oct. 12, 2006. Two of the proposed rules under consideration include Superior Court Rule 35, concerning discovery, and Superior Court Rule 62 that deals with pretrial procedures and pretrial settlement conferences.


Discovery Issues

        The proposed changes to Rule 35 on discovery relate to withholding information on the basis of privilege and discovery abuse and sanctions. Proposed Rule 35(b)(1) adds the requirement that a party withholding information on a privilege claim notify the opposing party of the privilege and describe the general character of the information withheld to enable the other party to assess the applicability of the privilege claim. It also warns that a party failing to comply with this requirement waives the privilege claim.

        The proposed rule also adds an entirely new section on discovery abuse and sanctions. Proposed Rule 35(g) provides examples of discovery abuses that include (but are not limited to): failing to confer with the opposing party in good faith to resolve a dispute; producing documents in a disorganized manner or a manner other than the form regularly kept; misleading or evasive responses; making unmeritorious objections; using methods resulting in expense disproportionate to the matters at issue; and causing unwarranted annoyance, embarrassment or undue burden or expense in the discovery process. The rule then lists examples of sanctions that the court may impose on a party for discovery abuse, including monetary sanctions, prohibiting evidence, and striking claims or defenses.


Structuring Conferences

        Proposed Rule 62 is intended to replace the current rule in its entirety. Following submission by the Advisory Committee on Rules, the Supreme Court added an additional change to Rule 62. Specifically, the Supreme Court added a provision requiring structuring conferences to be conducted via telephone conference call unless a written request to appear in court is received no later than 10 days before the conference date.

        The proposed rule notes that guidelines for participation in telephonic structuring conferences will be established by administrative order and will be available at the clerk’s office and on the Judicial Branch Web page.

        Another proposed change to Rule 62 includes a requirement that parties confer no later than 20 days before the structuring conference and attempt to reach a stipulation as to trial dates, discovery track, disclosures dates, scope of discovery, and ADR.

With regard to the scope of discovery, parties are to consider electronic discovery and the extent such information is to be produced, in what medium, who will bear the costs, the need for and extent of any electronics holds to prevent destruction, and the manner in which the parties propose to guard against a waiver of privilege claims with respect to such information being produced. If the parties cannot agree on all these items, each party will submit a separate proposed order as to those items upon which agreement could not be reached.


Fast-Track Discovery

        Another significant change to this rule is the creation of a fast-track discovery process. Under the proposal, parties would choose between standard-track discovery or fast-track discovery. The type of case will determine the track. Rule 62(B) sets forth the procedure for this new fast-track discovery. While the court may vary the requirements, discovery limitations under this fast track include: 30 interrogatories per side, with sub-parts being counted as an interrogatory, 25 requests for admissions, 10 production of document requests, and depositions of parties and their experts only with no deposition exceeding four hours.

        Finally, in non-jury cases, proposed Rule 62 requires findings of fact and rulings of law be submitted in writing at trial no later than the close of evidence. This change makes this rule consistent with Rule 72.

        If you have any comments regarding the proposed changes to Superior Court Rule 35 or 62, or any other of the proposed rule changes, please submit your comments on or before Oct. 12, 2006 to the clerk of the Supreme Court.

        View all of the rules changes submitted by the Rules Committee for approval by the Court at


Jennifer L. Parent, of the McLane, Graf, Raulerson & Middleton law firm in Manchester, is the NHBA representative on the NH Supreme Court Advisory Committee on Rules. Parent also is a member of the NHBA Board of Governors, representing the Hillsborough County Northern judicial district.


This article is not an official report and does not necessarily express the position of the Rules Advisory Committee or the NHBA Board of Governors.


Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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