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Bar News - July 16, 2010


Are You Ready? New Discovery Rules in Carroll, Strafford Counties

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If you will be filing civil cases in Carroll and Strafford counties this fall, be warned: the presiding judges there are committed to seeing the new discovery rules put into practice.

The message rang clear at the June 16 NHBA•CLE program about new pilot rules on proportional discovery and automatic disclosure. The half-day program, to be replayed with judges Kenneth Brown and Stephen Houran as facilitators on August 25 (Dover) and September 1 (North Conway), addressed many questions from attorneys about the new process. But while there is a learning curve to be experienced by all when the pilot project rules start October 1, litigants will be expected to use the new rules from the start.

"Opting out of these rules will be very rarely granted," said Judge Brown, presiding justice for Strafford County.

Chief Justice Robert Lynn, who also sat on the panel and co-chaired the task force that drafted the rules, was asked if there would be a "warning shot" before sanctions are imposed on lawyers failing to comply. He said there would be, adding: "Our purpose is not to be draconian."

The rules, which apply to all civil cases filed after October 1 in Carroll and Strafford counties, are aimed at streamlining the discovery process.

At the request of NH Supreme Court Chief Justice John T. Broderick, Jr., Justice Lynn and Colebrook attorney Philip Waystack led a task force that drafted the rules that are modeled on a new approach to civil discovery backed by the American College of Trial Lawyers. Key to the new rules are the concepts of automatic disclosure and proportional discovery rules that proponents believe can make the civil litigation process simpler, cheaper, and faster. That’s a goal that becomes increasingly important as budget cuts shrink court resources.

Covering everything from initial disclosure of evidence and limited interrogatories to electronic discovery, the five broad rules have provoked anxiety from some attorneys who fear that the new rules will limit their ability to litigate effectively. Panelists at the CLE did their best to assuage those fears.

"We’re committed to working with you – attorneys and self-represented [litigants] alike," said Judge Houran. "We’re committed to making this work."

Tracking Results

As it is a pilot project, Chief Justice Lynn says that the court will actively track the effectiveness of the new rules.

Strafford County Court Clerk Julie Howard says evaluation of the pilot project will be assisted by the National Center for State Courts. More help, said Waystack, may come from the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System.

Perhaps most important, says Lynn, is that the courts’ new case-management system, Odyssey, has been implemented in both counties, which will help the court measure the time between filing and disposition.

Lynn cautioned, however, that since the Odyssey system is only now beginning to track cases, data from before the rules’ implementation will be scant. For that reason, he says, much of the feedback will be anecdotal, and will consist of appraisals of the process from judges, clerks and attorneys.

To better compile feedback from the Bar, Howard said that she is receptive to feedback via e-mail, but she stressed the importance of staying positive: "This is a new opportunity for people to work and get things done. A good attitude will make things better."

Judge Lynn, too, said he was open to comment from the Bar. "Please don’t hesitate to contact me," he said. "There are no stupid questions. I will get back to you. We want to make these even better than we hope they’ll be now."

Pro Se Issues

During the question-and-answer portion of the program, many attorneys asked how the rules would be applied to pro se litigants. Already, attorneys say, self-represented litigants often are treated too leniently when they miss deadlines or fail to follow court rules.

Judge Lynn acknowledged that the courts are having difficulty with this issue. "Where’s the line between being helpful to people and being unfair to the other side? The last word hasn’t been said on that," said Lynn. "It’s broader than this topic, but it’s an ongoing issue. Our desire is to be open and accessible."

Judge Lynn added that pro se litigants will be held accountable to the rules as much as possible and new sanctions will be enforced should they not comply.

"If there’s an unreasonable action that isn’t worthy of throwing out a case entirely for, we’ll impose a requirement of pro se parties to pay attorney’s fees incurred," said Lynn. Rather than waiting for payment until after a completion of the case, however, the fine might be imposed "within a set time, say 25-30 days. [The sanctions] are designed to get the person’s attention."

Editor’s Note: If you missed this NHBA•CLE program, you can catch a live video replay in Dover on Aug. 25 and Sept. 1 in North Conway. Judges Brown and Houran will both be in attendance at each replay to answer further questions about the new discovery rules.

You can find a copy of the new rules at the Judicial Branch website.

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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