Evidence – Discovery – New Hampshire
Note: This summary is not intended to be an all inclusive summary of discovery law in New Hampshire, but does include basic and other information.
Discovery: A procedure designed to allow disclosure of information between Plaintiffs and Defendants. Written questions, oral questioning, document production and admissions requests are generally allowed. Discovery was designed to to prevent trial by ambush.
Interrogatories: Written questions from Plaintiff to Defendant, or from Defendant to Plaintiff. The questions are mailed to the Plaintiff, Defendant or the attorney for response in writing. The answers or responses are usually due between 20-30 days.
Deposition: A procedure where verbal questions are asked a Plaintiff or Defendant for immediate response. Depositions are usually recorded by a court reporter, who swears the person to tell the truth before questioning begins.
Production of Documents: The method of obtaining documents from the other party relevant to the case such as all documents a party intends to introduce at trial.
Requests for Admissions: Written questions where you request the other party to admit or deny some relevant fact.
Objections: Objections may be made to all discovery questions if the questions are not relevant, or likely to lead to the discovery of relevant evidence.
Civil Procedure Rules: Virtually all states have adopted a version of civil procedure rules which include rules dealing with discovery.
New Hampshire Court Rules
New Hampshire has adopted the New Hampshire Court Rules Annotated for the Superior Court. The court rules contain provisions for discovery in domestic actions. Therefore, the rules also apply in divorce proceedings.
Discovery Methods: Parties may obtain discovery by one or more of the following methods: depositions upon oral examinations or written questions, written interrogatories, production of documents or things or permission to enter upon land or other property, physical and mental examinations, and requests for admission. Rule 35(a)
Scope of Discovery: Parties may gain discovery regarding any matter, not privileged, which is relevant to the subject matter in the pending action. Rule 35(b)
Experts: A party may through interrogatories require another party to identify each person whom the other party expects to call as an expert witness at trial. Rule 35(b)(3)
Sequence of Timing and Discovery: Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery. Rule 35(d)
Supplementation of Responses: A party who has responded to written interrogatories with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters and (B) the identity of each person expected to be called as an expert witness at trial and the general nature of the subject matter on which the expert is expected to testify.
(2) A party is under a duty to amend a prior response seasonably if the party obtains information upon the basis of which the party knows that the response (A) was incorrect when made or (B) though correct when made is no longer true. Rule 35(e)
When objections are made to interrogatories or request or admissions, before there is any court hearing, the attorneys for the parties shall attempt to settle the objections by agreement. Rule 36-A
No notice to the adverse party of the taking of depositions shall be deemed reasonable unless served at least three days before the day on which they are to be taken. Rule 38
Every notice of a deposition to be taken within the state must contain the name of the stenographer that will record the testimony. Rule 39
In civil actions, the signature of a person outside the state, acting as an officer empowered to take depositions or affidavits, with his fixed seal, to the certificate of an oath administered by him in the taking of affidavits or depositions, will be prima facie evidence of his authority so to act. Rule 42
If any deponent refuses to answer any question during a deposition, or refuses to answer any written interrogatory, the party propounding he question may apply by motion to the court for an order compelling an answer. Rule 44
Domestic Actions Discovery Notes
If you require extra time to respond to discovery, you should ask the other side for an extension in writing. It may also be necessary to enter an order granting the extension to protect your rights.
Discovery questions are limited in number so select the most important questions to ask the other side. Don’t waste your requests writing questions that you already know the answer to.