Bar News - December 13, 2013
Opinion: Superior Court Rule 22: Taking the Devil Out of Discovery
By: Michael Listner
Discovery has traditionally been the devil’s playground in New Hampshire civil actions. Discovery battles prompted by requests for production and motions to compel – with their subsequent hearings – require the expenditure of time for litigators and the court, which is borne financially through fees imposed on clients and expenses to the state.
The new civil rules implemented by the NH Superior Court on Oct. 1 bring a new dimension to civil practice in New Hampshire that promises to alter substantially the way civil matters are adjudicated. Superior Court Rule 22, in particular, has the potential to take the devil out of discovery and positively impact discovery practice under New Hampshire civil rules.
Rule 22 is derived from Superior Court Pilot Rule 3 and requires both plaintiffs and defendants to make certain automatic disclosures. The Comments to Rule 22 note that these automatic disclosures are intended to reduce the inherent “gamesmanship” found in traditional discovery and thereby reduce the time by spent resolving discovery issues. This in turn should reduce litigation costs, to the benefit of the client and the courts. Rule 22’s requirements are similar to FED. R. CIV. P. 26, with some notable differences, which will not be discussed at length here but can be found in the Comments.
Rule 22(a) mandates that each party disclose certain information without formal discovery requests. It also requires both parties to disclose certain information automatically, including the identity and contact information for each person who may play a role in the disclosing party’s efforts to support claims or defenses, a copy of all tangible and electronic records, and a computation of damages claimed, including any evidentiary materials supporting the computation and any insurance policy or agreement showing that an insurance company might be liable to satisfy a possible judgment in whole or part, or otherwise indemnify payments made to satisfy a potential judgment. Rule 22(d) requires disclosures to be supplemented if and when the disclosing party becomes aware of supplemental information required by Rule 22(a).
Automatic disclosures made under Rule 22(a)(1-2) are excepted, to the extent that the disclosed materials would solely be used for impeachment. Disclosures under Rule 22(a)(3) are not excepted, because they are privileged or protected from disclosure. Federal practitioners will note that this differs from the requirement under FED. R. CIV. P. 26(a)(1)(A)(iii). This is not to say that a party cannot object on grounds of privilege or other proper grounds to the disclosure of information made under Rule 22(a)(3). To be more precise, Rule 22(a)(3) presupposes that genuine claims of privilege for computation of damages should be rare or non-existent. If they are present, the party making the disclosure can assert the existence of a privilege through other sections of the Superior Court Rules.
Rule 22(b) stipulates reasonable timing for disclosures, to expedite the progress of the proceedings. Rule 22(b)(1) requires the plaintiff to make automatic disclosures within 30 days of the date the defendant files the answer to the complaint. This gives the plaintiff the benefit of having the defendant’s answer before making disclosures, so the plaintiff is informed as to what facts are in dispute and what proof to the contrary the plaintiff must disclose. Rule 22(b)(2) requires the defendant to make disclosures no later than 60 days after the answer has been filed. The timing in Rule 22(b) is not set in stone – the court has discretion to change the time limits stipulated – but practitioners are advised to abide by the limits as much as possible.
Rule 22 cannot purge the devil from discovery without a means to enforce its requirements. To that end, Rule 22(d) gives teeth to the disclosure requirements in Rule 22(a) and grants the court the discretion to apply sanctions (found in Superior Ct. R. 21(d)(2)) to the party or parties who fail to make timely disclosures.
The scope of sanctions ranges from monetary sanctions to a terminating sanction in full or partial judgment. Both the plaintiff and defendant should be cognizant that failure of the plaintiff to make timely disclosures under Rule 22 could give the defendant the opportunity to file a dispositive motion, seeking a terminating sanction under Rule 21(d)(2)(D), which could dismiss the case partially or in its entirety and on the merits. A plaintiff may well seek appellate review of a dismissal under Rule 21(d)(2)(D) or any other sanction, subject to Supreme Ct. R. 7 for abuse of discretion.
Rule 22’s previous incarnation as part of the Superior Court Pilot Rule (PAD Rules) program served as a proving ground for exorcising the devil from discovery. Whether its adoption throughout the New Hampshire court system will be effective at reshaping civil discovery practice throughout New Hampshire remains to be seen.
Michael Listner focuses his practice on providing legal services for attorneys, including litigation consulting, general and complex legal research, preparation and responding to motions, and drafting appellate briefs. You can contact him at 603-866-0346 or via email email@example.com.