New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

Set Your Business Apart - Advertise with NH Bar News!

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - November 16, 2016


Opinion: A Review of Family Division Rule 1.25-A in Action

By:

NH Circuit Court Family Division Rule 1.25-A – a rule that is familiar to domestic relations practitioners, as it applies in most family-related cases – requires parties to automatically provide copies of certain documents to one another within 45 days of the beginning of an action (or 10 days before the initial substantive hearing).

The purpose of the rule is to ensure the provision of certain essential documents that parties would almost certainly seek out in the ordinary course, including tax returns, paystubs, and bank and credit card statements, quickly and efficiently, and without the need for extensive discovery-related litigation. The rule also contains potentially powerful remedies, so it’s helpful to review it from time to time, as new issues arise.

Rule 1.25-A is a step in the right direction, but there are issues related to the rule and its enforcement that merit discussion.

One issue concerns parties who fully or partially fail to comply with the rule. Though parties should not need to expend resources tracking down the other’s disclosures, given what is supposed to be their automatic nature, the unfortunate reality is that doing so is often necessary. Similarly, parties frequently ignore the 45-day “deadline,” treating it as a mere “suggestion” rather than an important obligation necessitating compliance. Where the apparent purpose of the 45-day deadline is to ensure parties are in possession of certain key documents in the earliest stages of the case, parties who provide disclosures one, three or as many as five months late are, at best, frustrating the rule’s intent, and at worst, materially prejudicing the other side.

Parties’ noncompliance with Rule 1.25-A is likely facilitated, at least in part, by a “culture of tolerance” that has evolved over time since the rule’s promulgation. In short, the rule is simply not regarded with the same sanctity as rules pertaining to pleadings and hearings. Moreover, as a consequence of an underfunded judiciary, motions to compel at times remain pending for months, meaning that so long as parties “eventually” comply with their mandatory disclosure obligations, i.e. before an order is issued, the issue is arguably “moot.” Coupled with courts’ general reluctance to award fees in connection with discovery disputes, the unfortunate reality tends to be that there is little an aggrieved party can do to effect the other’s timely Rule 1.25-A compliance.

Perhaps a more serious issue is parties who fail to provide their Rule 1.25-A mandatory disclosures before the first substantive hearing in a case, typically the temporary hearing. Courts are generally, though not always, reluctant to preclude a party from introducing financial evidence based on a “Draconian” enforcement of a party’s Rule 1.25-A obligations, even when said evidence includes documents that should have been, but were not, disclosed as part of his or her mandatory disclosures. This frequently results in the inequitable situation where a non-complying party is able to leverage a complying party’s Rule 1.25-A disclosures against him or her, while the complying party is deprived of such an opportunity due to the other’s noncompliance, in effect rewarding the non-complying party for his or her misconduct.

To improve the Rule 1.25-A landscape, practitioners should first consider regularly reviewing the rule, no matter how familiar they may already be with it. Notably, Rule 1.25-A specifically authorizes courts (in their discretion) to impose a host of sanctions in the event of a party’s noncompliance, including, e.g., prohibiting said party from introducing undisclosed documents as evidence; from testifying and/or making offers of proof about information likely contained in the undisclosed documents; and from filing their own discovery requests and discovery-related motions. The rule also authorizes courts to make reasonable estimates and assumptions about values in the event of nondisclosure and obligates parties to execute and return authorizations in the event documents are said to be “unavailable.” Consistent and liberal use of such remedies is likely the most reliable way to improve general awareness of them, and in turn, effect greater Rule 1.25-A compliance.

Second, courts should consider stricter enforcement of the rule, and admonish parties who fail to comply, or fail to timely comply, with their mandatory disclosure obligations. This is particularly reasonable where most, if not all, of the documents implicated by Rule 1.25-A are readily available online, e.g. via online banking; online portals; entity websites, etc. In other words, absent exigent circumstances, there is simply no reasonable basis for failing to comply with one’s Rule 1.25-A obligations in the digital age.

Third, the rule should mandate awarding costs and fees in cases of a party’s unjustified failure to comply with his or her Rule 1.25-A obligations. This would help incentivize parties to achieve compliance with the rule, and on time. Statutes to this effect already exist in the form of RSA 461-A:15 and RSA 458:51, both of which obligate courts to award costs and fees in the event of a party’s unjustified compliance with a court order. Adding similar language to Rule 1.25-A, a relatively simple endeavor, would invariably motivate parties to take seriously their mandatory disclosure obligations.

Fourth, though already within the court’s discretion, the rule should impose a “bright line” sanction mandating the absolute prohibition of introducing documents or other evidence at hearings, as well as related offers of proof and/or testimony, concerning Rule 1.25-A documents that were not properly disclosed. A party’s failure to provide the other side with such essential documents in advance of a substantive hearing defeats the intended purpose of the rule; prejudices (often materially) the other party; and is grossly unfair. Such a sanction would motivate parties to comply with their Rule 1.25-A obligations in full, and deter attempts to otherwise “hide the ball.”

Finally, parties and courts alike would benefit from continuing to refine the rule’s language to eliminate any potential ambiguities. For example, to make clear that parties are obligated to affirmatively seek out and obtain copies of their mandatory disclosure documents, even if they do not typically “retain hard copies in the ordinary course.” Or, to clarify that a party filing joint tax returns with his or her new spouse does not somehow render said party’s returns “confidential,” and therefore not subject to disclosure. Or, to spell out that a party may not redact documents other than as expressly permitted under the rule, even if he or she “does not feel the information is relevant to the instant case.” These are all examples of positions taken by parties that, while untenable in the view of most courts and practitioners, could be better preempted in the rule’s language.

Continuing to improve Rule 1.25-A would inure to the benefit of everyone: parties, courts, and attorneys alike. The remedies permitted under the current iteration of the rule are a great start, and should be used more often.

Further refining the rule would serve to reduce parties’ attorney’s fees; contribute to the efficient use of judicial resources; and ultimately allow attorneys and courts to focus on substantive issues. Where widespread Rule 1.25-A compliance would further facilitate settlement discussions early in the case, it stands to reason that striving to improve the rule should be considered an important priority.


Petar Leonard

Petar Leonard is an attorney at The Stein Law Firm in Concord, where he concentrates his practice on domestic relations matters.

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer