CIVIL RULES

(a)  These rules govern the procedure in New Hampshire superior court in all suits of a civil nature whether considered cases at law or in equity with the exception of those actions subject to specific procedures established by statute. In all cases that involve a statutory reference to a “return day,” the Answer and Appearance deadline shall be considered the “return day.”

(b)  The rules shall be construed and administered to secure the just, speedy, and cost-effective determination of every action.

(c)  Upon the violation of any of these rules, the court may take such action as justice requires, which action may include, without limitation, the imposition of monetary sanctions against either counsel or a party, fines to be paid to the court, and reasonable attorney’s fees and costs to be paid to the opposing party.

(d)  As good cause appears and as justice may require, the court may waive the application of any rule.

(e)  A plain error that affects substantial rights may be considered and corrected by the court of its own initiative or on the motion of any party.

(f)  The clerk may refuse to accept, by notification in writing, any filing that the clerk determines does not comply with these rules.  In the event an objection is made to such determination, a written motion may be made to the court to rule on such determination. The written notification shall state: (1) all the reasons why the filing is not being accepted; and (2) that in the event the filing party objects to such determination, a written motion shall be made to the court to rule on such determination within 15 days of the date of the notification.

Comment

(a)   A court may deviate from or modify a rule as justice requires.

(b)  The language in Rule 1(e) is taken from former Superior Court Rule 102-A which reads as follows:  “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”

In computing any period of time prescribed or allowed by these rules, by order of court, or by applicable law, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall extend until the end of the next day that is not a Saturday, Sunday, or a legal holiday as specified in RSA ch. 288, as amended.

(a)  Copies of all pleadings filed and communications addressed to the court shall be furnished forthwith to all other counsel and any self-represented party.  All such pleadings and communications shall contain a statement of compliance herewith.

(b) In any case when all parties are represented by lawyers and the case is not electronically filed, all parties' counsel may agree that pleadings filed and communications addressed to the court may be furnished to all other counsel by email. An agreement may be filed with the court by stipulation. Such agreement shall list the email address(es) at which counsel agrees to be served. The email header shall include the caption of the case and its docket number. Pleadings and communications furnished in accordance with this rule shall be attached to the email in .PDF file format. Documents shall be considered signed if the signature use complies with the Supplemental Rules of the Superior Court of New Hampshire for Electronic Filing.

(c)  When an attorney has filed a limited appearance under Rule 17(c) on behalf of an opposing party, copies of pleadings filed and communications addressed to the court shall be furnished both to the opposing party who is receiving the limited representation and to the limited representation attorney.  After the limited representation attorney files that attorney’s “withdrawal of limited appearance” form, as provided in Rule 17(f), no further service need be made upon that attorney. 

(d)  A no contact order in a domestic violence, stalking, or similar matter shall not be deemed to prevent either party from filing appearances, motions, objections and other appropriate filings through the court.  At the request of the filing party, the court shall forward a copy of the document to the party or counsel on the other side of the case.  Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel, when both parties are represented.

(a)  There shall be one form of action to be known as a “civil action.”

(b)  To initiate a civil action, including an action authorized by law to be initiated by writ or petition, the plaintiff files with the court: (i) the Complaint; (ii) an Appearance (indicating the plaintiff’s representative by name, address, email address, telephone number, and New Hampshire Bar Association identification number); and (iii) either the filing fee or a motion to waive the filing fee.  See Rule 201.  For purposes of complying with the statute of limitations or analogous time limit, an action shall be deemed commenced on the date the Complaint is filed.

(c)  Upon receipt of the Complaint and, if the filing fee is not waived, the filing fee, the court will process the action and provide plaintiff with the completed Summons for service.  The Summons will identify: (i) the date the Complaint is filed; (ii) the court-ordered deadline for service; and (iii) a hearing date, if appropriate.  Plaintiff will cause the Summons together with a copy of the Complaint to be served on defendant no later than the court-ordered deadline for service, service to be made as specified in RSA 510, or as otherwise allowed by law.  Proof of service shall be filed with the court within 21 days of the court-ordered deadline for service.  If a defendant is not served within the court-ordered deadline for service, the court shall dismiss the action with or without prejudice, as justice may require.

(d)  In all cases of notice by publication where the time may be fixed by the court, the order shall be for publication in some newspaper or newspapers named by the court in general or special orders, once a week for 3 successive weeks.  The last publication shall not be later than the time fixed by the court.

(e)  Appearances and Answers are due within 30 days of the date the defendant is served with the Summons and Complaint.  

(a)  Within 20 days of the Answer date counsel, or parties if unrepresented, shall confer to discuss the claims, defenses and counterclaims and to attempt to reach agreement on the following matters: (1) a statement as to whether or not a jury trial, if previously demanded, is waived; (2) a proposed date for trial and the estimated length of trial; (3) dates for the disclosure of expert reports; (4) status of waiver of RSA 516:29-b requirements; (5) deadlines for the parties to propound interrogatories; (6) deadlines for the completion of all depositions; (7) deadlines for the completion of all discovery; (8) deadline for filing all dispositive motions, which shall not be less than 120 days prior to the trial date; (9) deadlines for filing all other pre-trial motions, which shall be filed not later than 14 days prior to trial; (10) the type of alternative dispute resolution (ADR) procedures that shall be utilized and the deadline for completion of ADR; and (11) deadline for filing witness and exhibit lists, which shall not be later than the trial management conference.

(b)  If the parties reach agreement as to all information required by Rule 5(a) above, they shall file a completed written stipulation setting forth their agreement on all of the required matters within the said 20 days.  Upon review by the court, if those stipulations are deemed acceptable, they shall become the case structuring order of the court.

(c)  If the parties are unable to reach agreement as to any of the matters set forth in Rule 5(a), or if the court rejects their proffered stipulations, the matter shall be scheduled for a telephonic case structuring conference between the court and counsel, or parties if unrepresented.  The case structuring conference shall be held no later than 75 days after the Answer is filed.  The court may order the parties to appear in court for the hearing if the court deems this necessary for the efficient progression of the case.  Should counsel, or parties if unrepresented, be unable to reach an acceptable agreement as to any of the required matters, the court shall issue such orders as it deems appropriate.  The fact that a structuring conference has not yet been held or a case structuring order has not yet been issued does not preclude any party from pursuing discovery and does not constitute grounds for any party to fail to comply with its discovery obligations.

(d)  Following the case structuring conference (if one is necessary), the court will issue a case structuring order.

 

Comment  

 This rule is similar to former Superior Court Rule 62, but does contain several provisions to improve former Rule 62.  First, like former Superior Court Rule 62 it contains a “meet and confer” requirement that mandates that, within 20 days after the Answer date, the parties must confer and attempt to reach agreement on all important issues regarding scheduling, discovery and the management of the litigation through the time of the trial.  However, unlike former Rule 62, Rule 5 provides that if the parties are able to reach agreement and execute a stipulation regarding all such matters, this stipulation shall presumptively become the case structuring conference order, thus eliminating the need for a case structuring conference.  This change is designed to remedy the frequently-heard complaint that the practice of routinely holding structuring conferences requiring the personal appearance of counsel, or parties if unrepresented, in every case is expensive and unproductive.  In addition, Rule 5 also provides that even where the parties are unable to reach agreement on all issues or where the court finds the agreement unacceptable, the structuring conference will be held telephonically unless the court specifically orders that counsel and/or the parties appear in court for the conference.  This aspect of the new rule reverses the practice under which structuring conferences are held at the courthouse unless a party or counsel files a motion requesting that he or she appear telephonically.  Again, the purpose of the change is to reduce costs and increase efficiency.

 

Section (c) of this rule also changes former Rule 62 in two other significant ways.  First, it changes the date for holding the structuring conference from 45 days after the return date, as provided in former Rule 62.  Under Rule 5, the structuring conference must be held within 75 days after the Answer is filed.  Given the automatic disclosure requirements established by Rule 22, 75 days after the Answer will give the parties time to digest the disclosures made pursuant to Rule 22 and to formulate reasoned positions in cases where they have been unable to reach agreement on all pretrial management issues.  This time limit also is realistic in light of superior court resource limitations.  The second significant change accomplished by section (c) of Rule 5 is the provision stating that discovery can be initiated before the structuring conference is held and before a structuring conference order has been issued and that a responding party is required to comply with its discovery obligations notwithstanding the fact that a structuring order has not yet been issued.  This provision is intended to address the complaint often heard from lawyers that court scheduling issues which result in delay in holding a structuring conference are used as an excuse to delay responding to entirely legitimate discovery requests.

(a)  The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses.  There shall be allowed a Complaint and an Answer; an Answer to a counterclaim denominated as such; an Answer to a cross-claim, if the Answer contains a cross-claim; a Third-Party Complaint, if a person who was not an original party is summoned to appear in an action; a Third-Party Answer, if a Third-Party Complaint is served; and a Reply, if an affirmative defense is set forth in an Answer and the pleader wishes to allege any matter constituting an avoidance of the defense.  No other pleading shall be allowed as of right.

(b)  Demurrers, Pleas, and Exceptions for insufficiency of a pleading shall not be used.

Comment
Rule 6(a) is part of the restructuring of the civil rules intended to eliminate the distinction between law and equity.  

        Pleadings which notify the opposing party and the court of the factual and legal bases of the pleader’s claims or defenses better define the issues of fact and law to be adjudicated.  This definition should give the opposing party and the court sufficient information to determine whether the claim or defense is sufficient in law to merit continued litigation.  Pleadings should assist in setting practical limits on the scope of discovery and trial and should give the court sufficient information to control and supervise the progress of the case.

(a) Every Complaint shall contain in the caption, or in the body of the Complaint, the names and addresses of all parties to the proceedings.

(b)  No filing which is contained in a letter, will be accepted by the clerk, as such, or acted on by the court.  All pleadings, motions, objections and forms filed shall be in the format of 8 1/2 x 11 inch documents either typewritten or printed double spaced, on one side of the paper, so they are clearly legible.

(c)  All pleadings, motions and objections shall set forth the factual allegations in numbered paragraphs.

(d)   All pleadings, motions, objections and the Appearance and Withdrawal of counsel shall be signed by the attorney of record, authorized non-attorney representative, or by a self-represented party.  Names, street addresses, mailing addresses, New Hampshire Bar Association member identification numbers, and telephone numbers shall be typed or stamped beneath all signatures or papers to be filed or served.  No attorney, non-attorney representative, or self-represented party will be heard until his or her Appearance is so entered.

(e)  The signature of an attorney, non-attorney representative, or self-represented party to a pleading, motion, or objection constitutes a certificate by him or her that he or she has read the filing; that to the best of his or her knowledge, information and belief there is a good ground to support it; and that it is not interposed for delay.  If a filing is not signed, or is signed with an intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though it had not been filed.

(f)  No attorney, non-attorney representative or party to litigation shall directly address himself or herself by pleading, motion, or objection to any judge but shall file such pleading, motion, or objection with the clerk.

(g) All motions must contain the word "motion" in the title. Filers shall not combine multiple motions seeking separate and distinct relief into a single filing. Separate motions must be filed. Objections to pending motions and affirmative motions for relief shall not be combined in one filing.

(h)  The court may in all cases order either party to plead and also to file a statement in sufficient detail to give to the adverse party and to the Court reasonable knowledge of the nature and grounds of the action or defense.

(i)  Documents shall not be withdrawn from the court files except by leave of court and upon the filing of a receipt therefor.

(a)  Except as may be more specifically provided by these rules in respect of specific actions, a pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain a statement of the material facts known to the pleading party on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement;  provided, however, that in any personal action a pleading shall not allege the amount of damages claimed, but shall state only that the damages claimed are within the jurisdictional limits of the court.  Relief in the alternative or of several different types may be demanded.

(b)  An amendment to a pleading relates back to the date of the original pleading when:

(1)  a statute that provides the applicable statute of limitations allows relation back;

(2)  the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out – or attempted to be set out – in the original pleading; or

(3) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 8(b)(2) is satisfied and if, within the period provided for serving the summons and complaint, the party to be brought in by amendment:

(A) received such notice of the action that it will not be prejudiced in defending on the merits; and

(B) knew or should have known that the action would have been brought against it, but for a mistake or lack of information concerning the proper party’s identity.

(c)  A plaintiff entitled to a trial by jury and desiring a trial by jury shall so indicate upon the first page of the Complaint at the time of filing, or, if there is a counterclaim, at the time plaintiff files an Answer to such counterclaim.  Failure to request a jury trial in accordance with this rule shall constitute a waiver by the plaintiff thereof.

Comment

        Pleadings which notify the opposing party and the court of the factual and legal bases of the pleader’s claims or defenses better define the issues of fact and law to be adjudicated.  This definition should give the opposing party and the court sufficient information to determine whether the claim or defense is sufficient in law to merit continued litigation.  Pleadings should assist in setting practical limits on the scope of discovery and trial and should give the court sufficient information to control and supervise the progress of the case.

        The language following the proviso in section (a) of the rule is intended to conform to the requirements of RSA 508:4-c.

(a)  An Answer or other responsive pleading shall be filed with the court within 30 days after the person filing said pleading has been served with the pleading to which the Answer or response is made.  It shall state in short and plain terms the pleader's defenses to each claim asserted and shall admit or deny the allegations upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an allegation, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. A pleader who intends in good faith to deny only a part or a qualification of an allegation shall specify so much of it as is true and material and deny only the remainder. The pleader may not generally deny all the allegations but shall make the denials as specific denials of designated allegations or paragraphs. An Answer, to the effect that an allegation is neither admitted nor denied, will be deemed an admission. All facts well alleged in the Complaint and not denied or explained in the Answer, will be held to be admitted.

In addition, within the same 30 days, the person filing an Answer or other responsive pleading shall also file an appearance in accordance with Rule 17.  No attorney, non-attorney representative or self-represented party will be heard until his or her Appearance is so entered.

(b)  Instead of an Answer, a person responding to a pleading to which a response is required may, within 30 days after the person has been served with the pleading to which the Answer or response is required file a Motion to Dismiss.  If a Motion to Dismiss is submitted and denied, an Answer must be filed within 30 days after the date on the Notice of the Decision finally denying the motion; provided, however, that if a Motion to Dismiss which challenges the court’s personal jurisdiction, the sufficiency of process and/or the sufficiency of service of process is filed, an Answer must be filed within the time specified in section (e) of this rule.

(c)  To preserve the right to a jury trial, a defendant entitled to a trial by jury must indicate his or her request for a jury trial upon the first page of the Answer at the time of filing.  Failure to request a jury trial in accordance with this rule shall constitute a waiver by the defendant thereof.

(d)  Failure to plead as affirmative defenses or file a Motion to Dismiss based on affirmative defenses, including the statute of limitations, within the time allowed in section (b) of this rule will constitute waiver of such defenses.

Affirmative defenses include the following:

(1) accord and satisfaction;

(2) arbitration and award;

(3) assumption of risk;

(4) contributory negligence;

(5) duress;

(6) estoppel;

(7) failure of consideration;

(8) fraud;

(9) illegality;

(10) injury by fellow servant;

(11) laches;

(12) license;

(13) payment;

(14) release;

(15) res judicata;

(16) statute of frauds;

(17) statute of limitations; and

(18) waiver.

(e)  A party does not waive the right to file a Motion to Dismiss challenging the court's personal jurisdiction, sufficiency of process and/or sufficiency of service of process by filing an Answer or other pleadings or motions addressing other issues. However, a party who wishes to challenge the court's personal jurisdiction, sufficiency of process, and/or sufficiency of service of process must do so in a Motion to Dismiss filed within 30 days after he or she is served. If a party fails to do so within this time period, he or she will be deemed to have waived the challenge. If the trial court denies the Motion to Dismiss:

(1)  The party will be deemed to have waived the challenge if the party does not seek review of the denial by the supreme court within 30 days of the clerk's final written notice of the trial court's decision. If the party does not seek review of the denial by the supreme court, the party must file an Answer within 30 days of the clerk's final written notice of the trial court's decision.

(2)  If the party appeals the denial, and the supreme court declines the appeal, the party must file an Answer within 30 days after the date of the supreme court's final written notice declining the appeal. The supreme court's declining to accept the appeal does not preclude a party who has complied with this section from challenging the trial court's ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court.

(3)  If the supreme court accepts the appeal and rejects the party's challenge, the party must file an Answer within 30 days after the date of the supreme court's final decision rejecting the challenge.

 

Comment

Pleadings which notify the opposing party and the court of the factual and legal basis of the pleader’s claims or defenses better define the issues of fact and law to be adjudicated.  This definition should give the opposing party and the court sufficient information to determine whether the claim or defense is sufficient in law to merit continued litigation.  Pleadings should assist in setting practical limits on the scope of discovery and trial and should give the court sufficient information to control and supervise the progress of the case.

Answers are to comply with statutory requirements that pertain to brief statements of defense.  See RSA 515:3, 524:2, 565:7, and 547-C:10.

This rule changes current practice in that it requires a defendant to file an Answer within 30 days after the defendant is served with the Complaint.  The practice under prior law whereby, in actions at law, the defendant’s entry of an appearance operated as a general denial of all allegations of the plaintiff’s writ has been eliminated.  Section (b) of the rule extends the time for filing an Answer if the defendant moves to dismiss the Complaint.  If a motion to dismiss is filed, the Answer is not due until 30 days after the clerk’s notice of the court’s decision finally denying the motion.  Except for challenges to personal jurisdiction, to the sufficiency of process or to the sufficiency of service of process, any defense that can be raised by motion also can alternatively be raised in an Answer. 

Section (d) of the rule makes clear that affirmative defenses are deemed waived if they are not raised in an Answer or a motion to dismiss filed within 30 days after the defendant is served with the Complaint.

Section (e) requires that motions to dismiss based on a challenge to the court’s personal jurisdiction, the sufficiency of process, or the sufficiency of service of process must be raised by motion to dismiss filed within 30 days after service of the Complaint.  This subsection is intended to modify long standing New Hampshire practice concerning the manner in which a litigant who desires to challenge the court’s personal jurisdiction or the adequacy of process or service of process must proceed.  Under prior law, a litigant desiring to make such challenges was required to enter a special appearance and to file a motion to dismiss within 30 days after being served.  If the litigant failed to follow this course, or if the litigant filed an Answer or pleading that raised any other issues, the litigant would be deemed to have submitted to the court’s jurisdiction and thus waived his or her challenge to personal jurisdiction or the adequacy of process or service of process. 

Under the new rule, a litigant desiring to challenge personal jurisdiction or the sufficiency of process or the service of process must still do so by filing a motion to dismiss within 30 days after being served.  However the litigant is not required to enter a “special appearance,” nor will the litigant be deemed to have waived such challenges and submitted to the court’s jurisdiction by filing an Answer or other pleadings or motions that raise issues aside from personal jurisdiction, sufficiency of process or sufficiency of service of process.  In accordance with Mosier v. Kinley, 142 N.H. 415, 423-24 (1997), the new rule preserves the requirement that a litigant whose motion to dismiss on these grounds is denied by the trial court must seek an immediate appeal of the trial court’s ruling, or be deemed to have waived these challenges.

(a)  Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

(b) Permissive Counterclaims.  A pleading may state as a counterclaim against an opposing party any claim that is not compulsory so long as a right of action existed thereon at the time of the filing of the complaint.

(c)  A pleading may state as a cross-claim any claim by one party against a co-party which arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim therein.

(d)  Unless otherwise provided by law, whenever a third party may be liable to a defendant in any pending action for any of the plaintiff’s claim against said defendant, or if said defendant may have a claim against a third party depending upon the determination of an issue or issues in said pending action, said defendant may bring an action against said third party and, unless otherwise ordered on motion of any party, such action will be consolidated for trial with the pending action or, if justice requires, said third party may be made a party to the pending action, for the purpose of being bound by the determination of any common issues.  However, except for good cause shown to prevent injustice and upon such terms as the court may order, no such action will be consolidated with or said third party joined in said pending action, unless suit is brought against said third party within 30 days following filing of the defendant’s Answer in said pending action.

(e)  A third party against whom an action is brought in accordance with this rule and a plaintiff against whom a counterclaim has been filed may, under the same circumstances prescribed by this rule, use the same procedure with respect to another person and the same time limitation shall apply, except that as to a plaintiff the 30 days will begin to run on the date the counterclaim is filed.

(f)  This rule shall not be construed to limit or abridge in any way the existing common law practice of joining parties in pending actions whenever justice and convenience require, or the giving of notice to third parties to come in and defend any pending action or be bound by the outcome thereof.

(g)  This rule does not apply to a defendant who contends that a third party is solely liable to the plaintiff or to a defendant in a tort action as to a possible joint tortfeasor against whom said defendant has no right to contribution or reimbursement.

(h)  For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims or third-party claims.

(a)  A request for court order must be made by motion which must (1) be in writing unless made during a hearing or trial, (2) state with particularity the grounds for seeking the order, and (3) state the relief sought.

(b)  The court will not hear any motion grounded upon facts, unless such facts are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties, their attorneys, or non-attorney representatives; and the same rule will be applied as to all facts relied on in opposing any motion.

(c)  Any party filing a motion shall certify to the court that the party or counsel has made a good faith attempt to obtain concurrence in the relief sought, except in the case of dispositive motions, motions for contempt or sanctions, or comparable motions where it can be reasonably assumed that the party or counsel will be unable to obtain concurrence.

(d)  The court may assess reasonable costs, including reasonable counsel fees, against any party whose frivolous or unreasonable conduct makes necessary the filing of or hearing on any motion.

(a) Motions to Amend.

    (1)  No plaintiff shall have leave to amend a pleading, unless in matters of form, after a default until the defendant has been provided with notice and an opportunity to be heard, to show cause why the amendment should not be allowed.

    (2)  Amendments in matters of form will be allowed or ordered, as of course, on motion; but, if the defect or want of form be shown by the adverse party, the order to amend will be made on such terms as justice may require.

    (3)  Amendments in matters of substance may be made on such terms as justice may require.

    (4)  Amendments may be made to the Complaint or Answer upon the order of the court, at any time and on such terms as may be imposed.

(b)  Motions to Consolidate . Whenever a Motion is filed in any county requesting the transfer of an action there pending to another county for trial with an action there pending, arising out of the same transaction or event or involving common issues of law, and/or fact, the court may, after notice to all parties in all such pending actions and hearing, make such order for consolidation in any one of such counties in which such actions are pending, as justice and convenience require.

(c)  Motions to Continue.

    (1)  Continuances may be granted upon such terms as the court shall order.

    (2)  All motions for continuance or postponement shall be signed and dated by the attorney, non-attorney representative, or self-represented party filing such motion.  Any other party wishing to join in any such motion shall also do so in writing.  Each such motion shall contain a certificate by the attorney, non-attorney representative, or self-represented party filing such motion that the party so filing the motion has been notified of the reasons for the continuance or postponement, has assented thereto either orally or in writing, and has been forwarded a copy of the motion.

    (3)  Where a trial has been scheduled in one case prior to the scheduling of another matter in another court, or elsewhere, where an attorney, non-attorney representative or self-represented party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and date except as follows:

        (a)  A subsequently scheduled case involving trial by jury in a Superior, or Federal District Court, or argument before the Supreme Court.

        (b)  Unusual circumstances causing the respective courts to agree that an order of precedence other than the above shall take place.

(d)  Motions to Dismiss.  Upon request of a party, hearings on motions to dismiss shall be scheduled as soon as practicable, but no later than 30 days prior to the date set for trial on the merits, unless the court shall otherwise order in the exercise of discretion.  All parties shall be prepared, at any such hearing, to present all necessary arguments.

(e)  Motions to Reconsider.  A party intending to file a motion for reconsideration or to request other post-decision relief shall do so within 10 days of the date on the written Notice of the order or decision, which shall be mailed or electronically delivered by the clerk on the date of the Notice.  The Motion shall state, with particular clarity, points of law or fact that the court has overlooked or misapprehended and shall contain such argument in support of the Motion as the movant desires to present; but the motion shall not exceed 10 pages. To preserve issues for an appeal to the Supreme Court, an appellant must have given the court the opportunity to consider such issues; thus, to the extent that the court, in its decision, addresses matters not previously raised in the case, a party must identify any alleged errors concerning those matters in a motion under this rule to preserve such issues for appeal. A hearing on the motion shall not be permitted except by order of the court.

    (1)  No Answer or Objection to a Motion for Reconsideration or other post-decision relief shall be required unless ordered by the court.

    (2)  If a Motion for Reconsideration or other post-decision relief is granted, the court may revise its order or take other appropriate action without rehearing or may schedule a further hearing.

    (3)  The filing of a motion for reconsideration or other post-decision relief shall not stay any order of the court unless, upon specific written request, the court has ordered such a stay.

Commentary:

  The third sentence of the first paragraph in Rule 12(e) derives from N.H. Dep't of Corrections v. Butland , 147 N.H. 676, 679 (2002), and is not intended to preclude a party from raising an issue on appeal under the plain error rule set forth in Supreme Court Rule 16-A.

 

(f)  Motions to Recuse . All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written motion for recusal and filed promptly with the court.  Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the court. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the court shall make a record of the request, the court’s findings, and its order.  The court's ruling on the motion shall issue promptly.  If the motion is denied, the court’s ruling shall be supported by findings of fact with respect to the allegations contained in the motion.

(g)  Motions for Summary Judgment .

(1) Motion for Summary Judgment.  Motions for summary judgment shall be filed, defended and disposed of in accordance with the provisions of RSA 491:8-a as amended. Such motions, objections thereto and supporting memoranda to such motions and objections shall provide specific page, paragraph, and line references to any pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents filed with the court in support of or in opposition to the Motion for Summary Judgment. Only such materials as are essential and specifically cited and referenced in the motion, objection, and supporting memoranda shall be filed with the court. In addition, except by permission of the court received in advance no motion and supporting memorandum if filed, together shall exceed 25 double-spaced pages and similarly no objection and supporting memorandum, if filed, together shall exceed 25 double-spaced pages. The purpose of this rule is to avoid unnecessary and duplicative filing of materials with the court.   Excerpts of documents and discovery materials shall be used whenever possible.

(2)  Moving Party's Statement of Material Facts.

(a) Content.  Every motion for summary judgment or its supporting memorandum shall be accompanied by a separate statement of the material facts as to which the moving party contends there is no genuine issue to be tried, set forth in consecutively numbered paragraphs, with page, paragraph and line references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents. Failure to include the foregoing statement shall constitute grounds for denial of the motion.

(b) Additional Service of Electronic Form of Statement of Material Facts to other Parties.  At the time the motion and separate statement of material facts are filed with the court, the statement of material undisputed facts shall also be contemporaneously sent in electronic form by email to all parties against whom summary judgment is sought to facilitate the requirements of the following paragraph. The statement of material facts in electronic form shall be sent as an attachment to an email and shall be in a Microsoft Word document (or a document convertible to Word) unless the parties agree to use another word processing format. The requirement to separately email the statement of material facts to the opposing party does not alter the date or method of service for filing motions, memoranda or statements of material undisputed facts with the court.

(3) The Nonmoving Party.

(a) Response to the Motion and the Statement of Material Facts.  The nonmoving party shall have 30 days after the filing of the motion for summary judgment to object, unless another deadline is established by order of the court.  An objection to a motion for summary judgment shall be accompanied by a response to the moving party's statement of material undisputed facts identifying which, if any, of the purported undisputed facts identified in the moving party's statement the nonmoving party contends are in dispute. The form of the nonmoving party’s response shall be consistent with the requirements of Paragraph (g)(3)(b).  For purposes of summary judgment, any fact set forth in the moving party's statement of material facts shall be deemed to have been admitted unless controverted as set forth in this paragraph.

(b) Filing a Consolidated Statement of Material Facts.  To permit the court to have in hand a single document containing the parties' positions as to material facts in easily comprehensible form, the nonmoving party shall save the moving party's statement of material facts as a new document and shall set forth a response to each directly below the appropriate numbered paragraph, including, if the response relies on opposing evidence, page, paragraph and line references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents. Where the obligation to send the statement of material facts in electronic form has been excused, the response to the statement of material facts may be in a separate document.

(c) Statement of Additional Material Facts.  Along with its response to the moving party's statement of facts, the nonmoving party may assert an additional statement of material facts with respect to the claims on which the moving party seeks summary judgment, each to be supported with page, paragraph and line references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents.

(d) The Moving Party's Reply to Additional Material Facts. The moving party shall reply to the nonmoving party's additional statement of material facts within 20 days of filing and in the manner required by Paragraph (g)(3). For purposes of summary judgment, any fact set forth in the nonmoving party's additional statement of material facts shall be deemed to have been admitted unless controverted as set forth in this paragraph.

(e) Filing a Consolidated Statement with Additional Material Facts.  Such an additional statement and reply shall be a continuation of the nonmoving party's response described in Paragraph (g)(3)(a)-(b), with an appropriate heading, and shall not be a separate document. Where the nonmoving party includes such an additional statement in its response, the response, including the additional statement, also shall be sent in electronic form by email to the moving party, unless excused as provided in Paragraph (g)(4).

(4) Exemption for Submission of a Consolidated Statement of Material Facts. The requirement for transmission by email and filing of a consolidated statement of material facts shall automatically be excused if (i) the moving or any nonmoving party is self-represented, (ii) the moving or any nonmoving party is incarcerated, (iii) the attorney for any party certifies in an affidavit that he or she does not have access to email, or (iv) the attorney for the moving party certifies in an affidavit that an opposing party's attorney has no email address or has not disclosed his or her email address. In addition, prior to the obligation to electronically transmit and file a consolidated statement of material facts, any party may file a motion to excuse the obligation to submit a consolidated statement of facts setting forth any circumstances establishing good cause to relieve the parties' obligations to comply with Paragraph (g)(3)(b) and (e). Good cause to excuse the requirement for a consolidated statement includes, without limitation: (1) that the process outlined herein will be unworkable due to the involvement of multiple parties in the summary judgment process; (2) that the process outlined herein will be unnecessary or unduly burdensome, as certified by the parties; (3) that the issues to be determined on summary judgment are solely issues of law and not fact; or (4) that the costs of compliance with this rule do not warrant its enforcement, as certified by the parties.

(5)  Page Limits.  Neither the statement of material facts as to which there is no genuine issue to be tried nor the response thereto shall be subject to the 25-page limitation in Paragraph (g)(1) of this rule.

(6)  Cross-Motions.  Cross-motions for summary judgment and oppositions thereto shall comply with the requirements of this rule, with the result that there shall be a single consolidated document for both the original motion for summary judgment and the cross-motion containing the respective statements of material facts and responses thereto, unless excused as provided in Paragraph (g)(4).

(7)  Partial Summary Judgment.  Where a plaintiff successfully moves for summary judgment on the issue of liability or a defendant concedes liability and the case proceeds to trial by jury, the parties must provide the trial judge with a statement of agreed facts sufficient to explain the case to the jury and place it in a proper context so that the jurors might more readily understand what they will be hearing in the remaining portion of the trial.  The court shall present the jury with the agreed statement of facts.  Absent such an agreement on facts, the court shall provide such a statement.

(8) Sanctions for Noncompliance. The court need not consider any motion or opposition that fails to comply with the requirements of this rule and may deny or grant a motion for summary judgment based on the failure of the moving party or the nonmoving party to comply with this rule.

   

Comment
This is not an exclusive list of the motions that can be filed in New Hampshire courts, but instead represents a sampling of the motions most commonly filed and opposed in the course of traditional New Hampshire litigation.

(a)  A non-moving party may object or otherwise respond to a motion within 10 days after filing thereof unless: (1) the party is responding to a Motion for Summary Judgment, see RSA 491:8-a; or (2) another deadline is established by court order.

(b)  Unless a party requests oral argument or an evidentiary hearing on any motion filed by the party, or on any objection thereto by another party, setting forth by memorandum, brief statement or written offer of proof the reasons why the oral argument or evidentiary hearing will further assist the court in determining the pending issue(s), no oral argument or evidentiary hearing will be scheduled and the court may act on the motion on the basis of the pleadings and record before it. Except with respect to motions that fall within Rules 13(a)(1) and (2) above, such memorandum, brief statement or written offer of proof shall be filed within 10 days after the filing of the motion.  With respect to motions that fall within Rule 13(a)(1), such memorandum, brief statement or written offer of proof shall be filed within 30 days after the filing of the motion.  With respect to motions that fall within Rule 13(a)(2), such memorandum, brief statement or written offer of proof shall be filed within the deadline established by court order. Failure to object shall not, in and of itself, be grounds for granting the motion.

 

Any party may file a reply within ten (10) days of the filing of an objection to a motion.  A party who intends to file a reply to an objection shall advise the clerk within three (3) days of the Court’s receipt of the objection.  Surreplies may only be filed with permission of the Court.

(a)  A non-moving party may object or otherwise respond to a motion within 10 days after filing thereof unless: (1) the party is responding to a Motion for Summary Judgment, see RSA 491:8-a; or (2) another deadline is established by court order.

(b)  Unless a party requests oral argument or an evidentiary hearing on any motion filed by the party, or on any objection thereto by another party, setting forth by memorandum, brief statement or written offer of proof the reasons why the oral argument or evidentiary hearing will further assist the court in determining the pending issue(s), no oral argument or evidentiary hearing will be scheduled and the court may act on the motion on the basis of the pleadings and record before it. Except with respect to motions that fall within Rules 13(a)(1) and (2) above, such memorandum, brief statement or written offer of proof shall be filed within 10 days after the filing of the motion.  With respect to motions that fall within Rule 13(a)(1), such memorandum, brief statement or written offer of proof shall be filed within 30 days after the filing of the motion.  With respect to motions that fall within Rule 13(a)(2), such memorandum, brief statement or written offer of proof shall be filed within the deadline establis(a) Access to Documents.

(1)  General Rule.  Except as otherwise provided by statute or court rule, all pleadings, attachment to pleadings, exhibits submitted at hearings or trials, and other docket entries (hereinafter referred to collectively as “documents”) shall be available for public inspection.  This rule shall not apply to confidential or privileged documents submitted to the court for in camera review as required by court rule, statute or case law. 

(2)  Burden of Proof.  The burden of proving that a document or a portion of a document should be confidential rests with the party or person seeking confidentiality.

(3)  The following provisions govern a party’s obligations when filing a “confidential document” or documents containing “confidential information” as defined in this rule.

(b) Filing a Document Which Is Confidential In Its Entirety.

(1)  The following provisions govern a party’s obligations when filing a “confidential document” as defined in this rule.  A “confidential document” means a document that is confidential in its entirety because it contains confidential information and there is no practicable means of filing a redacted version of the document.

(2)  A confidential document shall not be included in a pleading if it is neither required for filing nor material to the proceeding.  If the confidential document is required or is material to the proceeding, the party must file the confidential document in the manner prescribed by this rule.

(3)  A party filing a confidential document must also file a separate motion to seal pursuant to section (d) of this rule.

(4)  A party filing a confidential document shall identify the document in the caption of the pleading so as not to jeopardize the confidentiality of the document but in sufficient detail to allow a party seeking access to the confidential document to file a motion to unseal pursuant to section (e) of this rule.

(c) Documents Containing Confidential Information.

(1)  The following provisions govern a party’s obligations when filing a document containing “confidential information” as defined in this rule.  If a document is confidential in its entirety, as defined in section (b) of this rule, the party must follow the procedures for filing a confidential document set forth in section (b).

(2) “Confidential Information” means:

(A) Information that is not public pursuant to state or federal statute, administrative or court rule, a prior court order placing the information under seal, or case law; or
(B) Information which, if publicly disclosed, would substantially impair:

(i)  the privacy interests of an individual; or
(ii) the business, financial, or commercial interests of an individual or entity; or
(iii) the right to a fair adjudication of the case; or

(C) Information for which a party can establish a specific and substantial interest in maintaining confidentiality that outweighs the strong presumption in favor of public access to court records.

(3)  The following is a non-exhaustive list of the type of information that should ordinarily be treated as “confidential information” under this rule:

(A) information that would compromise the confidentiality of juvenile delinquency, children in need of services, or abuse/neglect, termination of parental rights proceedings, adoption, mental health, grand jury or other court or administrative proceedings that are not open to the public; or
(B) financial information that provides identifying account numbers on specific assets, liabilities, accounts, credit card numbers or Personal Identification Numbers (PINs) of individuals including  parties and non-parties; or
(C) personal identifying information of any person, including but not limited to social security number, date of birth, mother’s maiden name, a driver’s license number, a fingerprint number, the number of other government-issued identification documents or a health insurance identification number.

(4)  Filing Documents Containing Confidential Information.

(A)  When a party files a document the party shall omit or redact confidential information from the filing when the information is not required to be included for filing and is not material to the proceeding.  If none of the confidential information is required or material to the proceeding, the party should file only the version of the document from which the omissions or redactions have been made.  At the time the document is submitted to the court the party must clearly indicate on the document that the document has been redacted or information has been omitted pursuant to Rule 13B(c)(4)(A).
(B)  It is the responsibility of the filing party to ensure that confidential information is omitted or redacted from a document before the document is filed.  It is not the responsibility of the clerk or court staff to review documents filed by a party to determine whether appropriate omissions or redactions have been made.
(C)  If confidential information is required for filing and/or is material to the proceeding and therefore must be included in the document, the filer shall file:

(i)  a motion to seal as provided in section (d) of this rule;
(ii)  for inclusion in the public file, the document with the confidential information redacted by blocking out the text or using some other method to clearly delineate the redactions; and
(iii) an unredacted version of the document clearly marked as confidential.

(d) Motions to Seal.

(1) No confidential document or document containing confidential information shall be filed under seal unless accompanied by a separate motion to seal consistent with this rule.  In other words, labeling a document as “confidential” or “under seal” or requesting the court to seal a pleading in the prayers for relief without a separate motion to seal filed pursuant to this rule will result in the document being filed as part of the public record in the case.

(2)  A motion to seal a confidential document or a document containing confidential information shall state the authority for the confidentiality, i.e., the statute, case law, administrative order or court rule providing for confidentiality, or the privacy interest or circumstance that requires confidentiality.  An agreement of the parties that a document is confidential or contains confidential information is not a sufficient basis alone to seal the record.

(3)  The motion to seal shall specifically set forth the duration the party requests that the document remain under seal.

(4) Upon filing of the motion to seal with a confidential document or the unredacted version of a document, the confidential document or unredacted document shall be kept confidential pending a ruling on the motion.

(5)  The motion to seal shall itself automatically be placed under seal without separate motion in order to facilitate specific arguments about why the party is seeking to maintain the confidentiality of the document or confidential information.

(6)  The court shall review the motion to seal and any objection to the motion to seal that may have been filed and determine whether the unredacted version of the document shall be confidential.  An order will be issued setting forth the court’s ruling on the motion to seal.  The order shall include the duration that the confidential document or document containing confidential information shall remain under seal.

(7)  A party or person with standing may move to seal or redact confidential documents or confidential information that is contained or disclosed in the party’s own filing or the filing of any other party and may request an immediate order to seal the document pending the court’s ruling on the motion.

(8)  If the court determines that the document is not confidential, any party or person with standing shall have 10 days from the date of the clerk’s notice of the decision to file a motion to reconsider or a motion for interlocutory appeal to the supreme court.  The document shall remain under seal pending ruling on a timely motion.  The court may issue additional orders as necessary to preserve the confidentiality of a document pending a final ruling or appeal of an order to unseal.

(e) Procedure for Seeking Access to a Document or Information Contained in a Document that has been Determined to be Confidential

(1)  Any person who seeks access to a document or portion of a document that has been determined to be confidential shall file a motion with the court requesting access to the document in question.  There shall be no filing fee for such a motion.

(2)  The person filing a motion to unseal shall have the burden to establish that notice of the motion to unseal was provided to all parties and other persons with standing in the case.  If the person filing the motion to unseal cannot provide actual notice of the motion to all interested parties and persons, then the moving person shall demonstrate that he or she exhausted reasonable efforts to provide such notice.  Failure to effect actual notice shall not alone be grounds to deny a motion to unseal where the moving party has exhausted reasonable efforts to provide notice.

(3)  The Court shall examine the document in question together with the motion to unseal and any objections thereto to determine whether there is a basis for nondisclosure and, if necessary, hold a hearing thereon.

(4)  An order shall be issued setting forth the court’s ruling on the motion, which shall be made public.  In the event that the court determines that the document or information contained in the document is confidential, the order shall include findings of fact and rulings of law that support the decision of nondisclosure.

(5)  If the court determines that the document or information contained in the document is not confidential, the court shall not make the record public for 10 days from the date of the clerk’s notice of the decision in order to give any party or person with standing aggrieved by the decision time to file a motion to reconsider or appeal to the supreme court.

(f) Sanctions for Disclosure of Confidential Information.

If a party knowingly publicly files documents that contain or disclose confidential information in violation of these rules, the court may, upon its own motion or that of any other party or affected person, impose sanctions against the fiing party.

Comment

These provisions are intended to ensure that confidential documents and information contained within documents are accessible, upon filing, only to the court and its staff, to the parties and their attorneys or the parties’ authorized representatives, and to others authorized to perform service of process.  Any person or entity not otherwise entitled to access may file a motion or petition to gain access to any sealed or confidential court record.  See, e.g., Associated Press v. State of N.H., 153 N.H. 120 (2005); Petition of Keene Sentinel, 136 N.H. 121 (1992).hed by court order. Failure to object shall not, in and of itself, be grounds for granting the motion.

In addition to the participation of plaintiffs and defendants, a civil action may also involve third parties whenever third parties may be liable to a defendant in any pending action for all or part of the plaintiff’s claim against said defendant or if said defendant may have a claim against third parties, depending upon the determination of an issue or issues in said pending action.

Comment
For pleadings related to third parties, see Rule 10.

Any person shown to be interested may become a party to any civil action upon filing and service of an Appearance and pleading briefly setting forth his or her relation to the cause; or, upon motion of any party, such person may be made a party by order of court notifying him or her to appear therein. If a party, so notified, neglects to file an Answer or other responsive pleading on or before the date established by the court, that party shall be defaulted.  No such default shall be set aside, except by agreement or by order of the court upon such terms as justice may require.

(a)  Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all if:

    (1)  The class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

    (2)  There are questions of law or fact common to the class which predominate over any questions affecting only individual members;

    (3)  The claims or defenses of the representative parties are typical of the claims or defenses of the class;

    (4)  The representative parties will fairly and adequately protect the interests of the class;

    (5)  A class action is superior to other available methods for the fair and efficient adjudication of the controversy; and

    (6)  The attorney or non-attorney representative for the representative parties will adequately represent the interests of the class.

(b)  Order Allowing Class Action. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional and may be altered or amended before the decision on the merits on the court’s own motion or on motion of the parties. The action may be maintained as a class action only if the court finds that the prerequisites under section (a) of this rule have been satisfied.

(c)  Satisfaction of Jurisdictional Damages Limit. For purposes of satisfying the jurisdictional damages limit of the court, the claims of the members of the class shall be aggregated.

(d)  Description of Class. The order permitting a class action shall describe the class. When appropriate the court may limit the class to those members who do not request exclusion from the class within the specified time after notice.

(e)  Notice of Class Action. Following the court’s order maintaining the class action, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.  The notice shall advise each member that (1) the court will exclude that party from the class if that party so requests by a specified date; (2) the judgment, whether favorable or not, will include all members who do not request exclusion; (3) any member who does not request exclusion may, if that party desires, enter an Appearance through that party’s counsel; and contain such other information that the court deems appropriate. Unless the court orders otherwise, the representatives of the class shall bear the expense of notification and be responsible for the giving of the notice to members of the class.

(f)  Exclusion. Any member of the plaintiff class who files an election to be excluded in the manner and in the time specified in the notice, is excluded from and not bound by the judgment in the class action. A member of a defendant class may not elect to be excluded.

(g)  Judgment. The judgment in an action maintained as a class action, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class.

(h)  Methods of Payment of Damages. If the court renders judgment in favor of a plaintiff class, the court may, in its discretion, order the defendant to pay damages into the court and require each member of the class to file a claim with the court, or order payment of damages in any other manner it deems appropriate.

(i)  Actions Conducted Partially as Class Actions. When appropriate, an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class. The provisions of this subdivision shall then be construed and applied accordingly.

(j)  Orders in Conduct of Class Actions. In the conduct of class actions the court may make and alter appropriate orders:

    (1)  Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

    (2)  Requiring, for the protection of the members of the class, or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, or to appear and present claims or defenses, or otherwise to come into the action; or

    (3)  Dealing with similar procedural matters.

(k)  Dismissal, Discontinuance or Settlement.  A class action shall not be dismissed, discontinued or settled without the approval of the court. Notice of the proposed dismissal, discontinuance or settlement shall be given to all members of the class in such manner as the court directs.

(a)  An Appearance in an action shall be made by filing a typed or handwritten Appearance form containing the name, street address, mailing address, email address, New Hampshire Bar Association member identification number, and telephone number of the person entering the Appearance, and the complete name, street address, and telephone number of the party on whose behalf the Appearance is filed. If counsel includes all of the foregoing information in a complaint, answer or motion to dismiss, that pleading will be considered his or her appearance, and a separate appearance need not be filed.

(b) A party who chooses to represent himself or herself must file an Appearance and shall state in the Appearance that the party is choosing to represent himself or herself.  The failure of a self-represented party to file an Appearance in conformity with this rule shall result in a conditional default or other order as justice requires. The clerk shall be notified of any changes of address of any of the parties. 

(c) A separate Appearance is to be filed by counsel, non-attorney representative, or self-represented party with respect to each case in which said counsel, non-attorney representative or self-represented party appears, whether or not such cases are consolidated for trial or other purposes.

(d)  The Appearance and Withdrawal of counsel, non-attorney representative, or self-represented party shall be signed by that person.  Names, street addresses, mailing addresses, New Hampshire Bar Association member identification numbers, and telephone numbers shall be typed or stamped beneath all signatures or papers to be filed or served.  No attorney, non-attorney representative, or self-represented party will be heard until his or her Appearance is so entered.

(e)  Limited Appearance of Attorneys.  To the extent permitted by Rule 1.2 of the New Hampshire Rules of Professional Conduct, an attorney providing limited representation to an otherwise unrepresented litigant may file a Limited Appearance in a non-criminal case on behalf of such unrepresented party.  The Limited Appearance shall state precisely the scope of the limited representation, and the attorney’s involvement in the matter shall be limited only to what is specifically stated.  The requirements of Rule 7(c) and (d) of these Rules shall apply to every pleading and motion signed by the limited representation attorney.  An attorney who has filed a Limited Appearance, and who later signs a motion or other filing outside the scope of the limited representation, shall be deemed to have amended the Limited Appearance to extend to such filing.  An attorney who signs a pleading (see Rule 6) or any amendment thereto that is filed with the court will be considered to have filed a General Appearance and, for the remainder of that attorney’s involvement in the case, shall not be considered as a limited representation attorney under these rules; provided, however, if such attorney properly withdraws from the case and the withdrawal is allowed by the court, the attorney could later file a Limited Appearance in the same matter.

(f)  An attorney or non-attorney representative may withdraw from an action by serving a Notice of Withdrawal on the client and all other parties and by filing the notice, provided that: (1) there are no motions pending before the court; (2) a Trial Management Conference has not been held; and (3) no trial date has been set.  Unless these conditions are met, an attorney or non-attorney representative may withdraw from an action only by leave of court.  Whenever an attorney or non-attorney representative withdraws from an action, and no other Appearance is entered, the court shall notify the party by mail of such withdrawal.  If the party fails to appear by himself, herself, attorney or non-attorney representative by a date fixed by the court, the court may take such action as justice may require.

(g)  Other than limited representation by attorneys as allowed by Rule 17(c) and Professional Conduct Rule 1.2(f), no attorney or non-attorney representative shall be permitted to withdraw his or her Appearance in a case after the case has been assigned for trial or hearing, except upon motion to permit such withdrawal granted by the court for good cause shown, and on such terms as the court may order.  Any motion to withdraw filed by counsel or non-attorney representative shall set forth the reason therefore but shall be effective only upon approval by the court.  A factor which may be considered by the court in determining whether good cause for withdrawal has been shown is the client’s failure to meet his or her financial obligations to pay for the attorney’s services.

(h)  Automatic Termination of Limited Representation.  Any Limited Representation Appearance filed by an attorney, as authorized under Rule 17(c) and Professional Conduct Rule 1.2(f), shall automatically terminate upon completion of the agreed representation, without the necessity of leave of court, provided that the attorney shall provide the court a “withdrawal of limited appearance” form giving notice to the court and all parties of the completion of the limited representation and termination of the limited appearance.  Any attorney having filed a Limited Appearance who seeks to withdraw prior to the completion of the limited representation stated in the Limited Appearance, however, must comply with Rule 17(d).

(i)  Filing Prepared for Unrepresented Party.  When an attorney provides limited representation to an otherwise unrepresented party, by drafting a document to be filed by such party with the court in a proceeding in which (1) the attorney is not entering any appearance, or (2) the attorney has entered a Limited Appearance which does not include representation regarding such document, the attorney is not required to disclose the attorney’s name on such filing to be used by that party; any filing drafted by such limited representation attorney, however, must conspicuously contain the statement “This filing was prepared with the assistance of a New Hampshire attorney.”  The unrepresented party must comply with this required disclosure.  Notwithstanding that the identity of the drafting attorney need not be required to be disclosed under this rule, by drafting a filing to be used in court by an otherwise unrepresented party, the limited representation attorney shall be deemed to have made those same certifications as set forth in Rule 7(d) despite the fact the filing need not be signed by the attorney.

(a)  When either party shall change attorneys or non-attorney representatives during the pendency of the action, the new attorney or non-attorney representative shall file an Appearance.  See Rule 17. 

(b)  No attorney or non-attorney representative will be permitted to take part in a jury trial after he or she has testified for his or her client therein unless his or her acting as an advocate would be permitted by Rule 3.7 of the Rules of Professional Conduct.

(c)  No attorney may be surety or guarantor of any bond or undertaking in any proceeding. 

(a)  An attorney, who is not a member of the Bar of this State (a “Nonmember Attorney”), shall not be allowed to engage in the trial or hearing in any case, except on application to appear pro hac vice, which will not ordinarily be granted unless a member of the Bar of this State (the "In-State Attorney") is associated with him or her and present at the trial or hearing.

(b)  A Nonmember Attorney seeking to appear pro hac vice shall file a verified application with the court, which shall contain the following information:

    (1)  the applicant's residence and business address;

    (2)  the name, address and phone number of each client sought to be represented;

    (3)  the courts before which the applicant has been admitted to practice and the respective period(s) of admission;

    (4)  whether the applicant: (i) has been denied admission pro hac vice in this State; (ii) had admission pro hac vice revoked in this State; or (iii) has otherwise formally been disciplined or sanctioned by any court in this State.  If so, the applicant shall specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings;

    (5)  whether any formal, written disciplinary proceeding has ever been brought against the applicant by any disciplinary authority in any other jurisdiction within the last five years and, as to each such proceeding: the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated and finally concluded; the style of the proceedings; and the findings made and actions taken in connection with those proceedings;

    (6)  whether the applicant has been formally held in contempt or otherwise sanctioned by any court in a written order in the last five years for disobedience to its rules or orders, and, if so: the nature of the allegations; the name of the court before which such proceedings were conducted; the date of the contempt order or sanction, the caption of the proceedings, and the substance of the court's rulings (a copy of the written order or transcript of the oral rulings shall be attached to the application); and

    (7)  the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this State within the preceding two years; the date of each application; and the outcome of the application.

    (8)  In addition, unless this requirement is waived by the superior court, the verified application shall contain the name, address, telephone number and bar number of an active member in good standing of the Bar of this State who will be associated with the applicant and present at any trial or hearing. 

(c)  The court has discretion as to whether to grant applications for admission pro hac vice.  An application ordinarily should be granted unless the court finds reason to believe that:

    (1)  such admission may be detrimental to the prompt, fair and efficient administration of justice;

    (2)  such admission may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent;

    (3)  one or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk; or

    (4)  the applicant has engaged in such frequent appearances as to constitute common practice in this State. 

(d)  When a Nonmember Attorney appears for a client in a proceeding pending in this state, either in the role of co-counsel of record with the In-State Attorney, or in an advisory or consultative role, the In-State Attorney who is co-counsel or counsel of record for that client in the proceeding remains responsible to the client and responsible for the conduct of the proceeding before the court or agency.  It is the duty of the In-State Attorney to advise the client of the In-State Attorney’s independent judgment on contemplated actions in the proceeding if that judgment differs from that of the Nonmember Attorney.

(e)  An applicant for permission to appear pro hac vice shall pay a non-refundable fee as set forth in Superior Court Rule 201; provided that not more than one application fee may be required per Nonmember Attorney for consolidated or related matters regardless of how many applications are made in the consolidated or related proceedings by the Nonmember Attorney; and further provided that the requirement of an application fee may be waived to permit pro bono representation of an indigent client or clients, in the discretion of the court.

(a)  No person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, unless of good character and until there is on file with the court:

    (1)  a power of attorney signed by the party for whom said person seeks to appear, witnessed and acknowledged before a Justice of the Peace or Notary Public, constituting said person his or her attorney to appear in the particular action;

    (2)  an affidavit under oath in which said person discloses (i) all of said person’s misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute); (ii) all instances in which said person has been found by any court to have violated a court order or any provision of the rules of professional conduct applicable to nonlawyer representatives; (iii) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court; (iv) all prior proceedings in which said person has not been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court; and (v) all prior proceedings in which said person’s permission to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court has been revoked.

(b)  Any person who is not a lawyer who is permitted to represent any other person before any court of this State must comply with the Rules of Professional Conduct as set forth in Professional Conduct Rule 8.5, and shall be subject to the jurisdiction of the committee on professional conduct.

(c)  A party who chooses to represent himself or herself shall so state in the Appearance. 

(a) Discovery Methods.  Parties may obtain discovery by one or more of the following methods:  depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical or mental examinations; and requests for admission.

(b) Scope of Discovery.  Unless otherwise limited by order of the court in accordance with these rules, parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(c) Privilege Log.  When a party withholds materials or information otherwise discoverable under this rule by claiming that the same is privileged, the party shall promptly and expressly notify the opposing party of the privilege claim and, without revealing the contents or substance of the materials or information at issue, shall describe its general character with sufficient specificity as to enable other parties to assess the applicability of the privilege claim.  Failure to comply with this requirement shall be deemed a waiver of any and all privileges.

(d) Discovery Abuse; Sanction. 

    (1)  The court may impose appropriate sanctions against a party or counsel for engaging in discovery abuse.  Upon a finding that discovery abuse has occurred, the court should normally impose sanctions unless the offending party or counsel can demonstrate substantial justification for the conduct at issue or other circumstances that would make the imposition of sanctions unfair.  Discovery abuse includes, but is not limited to, the following:

        (A)  employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or undue burden or expense;

        (B) employing discovery methods otherwise available which result in legal expense disproportionate to the matters at issue;

        (C)  making, without substantial good faith justification, an unmeritorious objection to discovery;

        (D)  responding to discovery in a manner which the responding party knew or should have known was misleading or evasive;

        (E)  producing documents or other materials in a disorganized manner or in a manner other than the form in which they are regularly kept;

        (F)  failing to confer with an opposing party or attorney in a good faith effort to resolve informally a dispute concerning discovery;

    (2)  The sanctions which may be imposed for discovery abuse include, but are not limited to, the following:

        (A)  a monetary sanction in an amount equal to the unnecessary expenses incurred, including reasonable attorney’s fees, as the result of the abusive conduct;

        (B)  an issue sanction that orders that designated facts be taken as established by the party who has been adversely affected by the abuse;

        (C)  an evidence sanction that prohibits the offending party from introducing certain matters into evidence;

        (D)  a terminating sanction that strikes all or parts of the claims or defenses, enters full or partial judgment in favor of the plaintiff or defendant, or stays the proceeding until ordered discovery has been provided.

(e)  Trial Preparation.

    (1)  A party may obtain discovery of documents, electronically stored information and tangible things otherwise discoverable and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his or her attorney, non-attorney representative, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means.  In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

    (2)  A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party.  Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person.  If the request is refused, the person may move for a court order.  For purposes of this paragraph, a statement previously made is (i) a written statement signed or otherwise adopted or approved by the person making it, or (ii) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(f)  Sequence and Timing of 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.

(g)  Supplementation of Responses.  A party, who has responded to a request for discovery with a response that was complete when made, is under no duty to supplement his or her response to include information thereafter acquired, except as follows:

    (1)  A party is under a duty seasonably to supplement his or her 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, the subject matter on which he or she is expected to testify, and the substance of his or her testimony.

    (2)  A party is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which (a) he or she knows that the response was incorrect when made, or (b) he or she knows that the response, though correct when made, is no longer true.

    (3)  A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

(a)  Materials that Must Be Disclosed.  Except as may be otherwise ordered by the court for good cause shown, a party must without awaiting a discovery request, provide to the other parties:

    (1) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support his or her claims or defenses, unless the use would be solely for impeachment, and, unless such information is contained in a document provided pursuant to Rule 22 (a)(2), a summary of the information believed by the disclosing party to be possessed by each such person;

    (2) a copy of all documents, electronically stored information, and tangible things that the disclosing party has in his or her possession, custody or control and may use to support his or her claims or defenses, unless the use would be solely for impeachment;

    (3)  a computation of each category of damages claimed by the disclosing party together with all documents or other evidentiary materials on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

    (4) for inspection and copying, any insurance agreement or policy under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(b)  Time for Disclosure.  Unless the court orders otherwise, the disclosures required by Rule 22(a) shall be made as follows:

    (1) by the plaintiff, not later than 30 days after the defendant to whom the disclosure is being made has filed his or her Answer to the Complaint; and

    (2) by the defendant, not later than 60 days after the defendant making the disclosure has filed his or her Answer to the Complaint.

(c)  Duty to Supplement.  Each party has a duty to supplement that party’s initial disclosures promptly upon becoming aware of the supplemental information.

(d)  Sanctions for Failure to Comply.  A party who fails to timely make the disclosures required by this rule may be sanctioned as provided in Rule 21.

 

Comment  

This rule, formerly PAD Rule 3, accomplishes a major change from prior New Hampshire practice in that it requires both the plaintiff and the defendant to make automatic initial disclosures of certain information without the need for a discovery request from the opposing party.  Although there was a similar but not identical requirement in the so-called “fast-track” section of former Superior Court Rule 62(II), the rule was used very little and therefore does not provide a significant base of experience for this rule.  Nonetheless, such a base of experience can be found in federal court practice, where an automatic disclosure regimen in some form has been in existence since 1993, and appears to have worked reasonably well.  Requiring parties to make prompt and automatic disclosures of information concerning the witnesses and evidence they will use to prove their claims or defenses at trial will help reduce “gamesmanship” in the conduct of litigation, reduce the time spent by lawyers and courts in resolving discovery issues and disputes, and promote the prompt and just resolution of cases.

Section (a) of Rule 22 is taken largely from Rule 26(a)(1) of the Federal Rules of Civil Procedure.  It differs from the federal rule, however, in that, unlike the federal rule, this rule does not permit the disclosing party to merely provide “the subjects” of the discoverable information known to individuals likely to have such information, Fed. R. Civ. P. 26(a)(1)(A)(i), and “a description by category and location” of the discoverable materials in the possession, custody or control of the disclosing party, Fed. R. Civ. P. 26(a)(1)(A)(ii).  Rather, the rule requires that the disclosing party actually turn over to the opposing party a copy of all such discoverable materials, Rule 22(a)(2), and also requires that the disclosing party provide a summary of the information known to each individual identified under Rule 22(a)(1) unless that information is contained in the materials disclosed under Rule 22(a)(2).  This more comprehensive discovery obligation does not impose an undue burden on either plaintiffs or defendants and will help to insure that information and witnesses that will be used by each party to support its case will be disclosed to opposing parties shortly after the issues have been joined.

Subsection (a)(3) of the rule also differs somewhat from the language of comparable Fed. R. Civ. P. 26(a)(1)(A)(iii), in that the rule eliminates reference to “privileged or protected from disclosure” information as being excepted from the disclosure obligation imposed by the subsection.  By so doing, the intention is not to eliminate the ability of a party to object on privilege or other proper grounds to the disclosures relating to the computation of damages or the information on which such computations are based.  However, genuine claims of privilege as a basis for avoiding disclosure of information pertinent to the computation of damages will be rare and, to the extent such claims do exist, the ability to assert the privilege is preserved elsewhere in the rules.  Therefore, there is no need to make a specific reference to privileged or otherwise protected materials in this rule.

The time limits established in section (b) of the rule are reasonable and will promote the orderly and expeditious progress of litigation.  The proposed rule differs from the initial disclosure proposal embodied in the Pilot Project Rules of the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System (IAALS), in that, unlike ACTL/IAALS Rule 5.2, the rule does not require the plaintiff to make its initial disclosures before the time when the defendant is required to file its Answer.  The plaintiff should have the benefit of the defendant’s Answer before making its initial disclosure since the Answer will in all likelihood inform what facts are in dispute and therefore will need to be proved by the plaintiff.

Section (c) of the rule is taken directly from ACTL/IAALS Pilot Project Rule 5.4 and its substance is generally consistent with Federal Rule 26(e) and Rule 21(g).  It should be noted, however, that this rule differs from Rule 21(g). Rule 21(g) sets forth the general rule governing discovery and contains introductory language stating that there is no duty to supplement responses and then sets forth very broad categories of exceptions from this general rule. Section (c) of this rule, relating only to materials that must be disclosed pursuant to the automatic disclosure requirements of Rule 22, is worded in positive terms to require supplementation of responses whenever the producing party becomes aware of supplemental information covered by the rule’s initial disclosure requirements.

Section (d) of the rule references Rule 21 and permits the court to impose any of the sanctions specified in that rule if a party fails to make the disclosures required of it by this rule in a timely fashion.

(a) Any party may serve, by mail or delivery by hand, upon any other party written interrogatories relating to any matters which may be inquired into under Rule 21.

(b) A party may propound more than one set of interrogatories to an adverse party, but the total number of interrogatories shall not exceed 25, unless the court otherwise orders for good cause shown after the proposed additional interrogatories have been filed with the court.  In determining what constitutes an interrogatory for the purpose of applying this limitation in number, it is intended that each question be counted separately, whether or not it is subsidiary or incidental to or dependent upon or included in another question, and however the questions may be grouped, combined or arranged.

(c) Any party propounding interrogatories shall provide the opponent with notice, substantially as set forth in the following form, of the obligation to answer said interrogatories within thirty days.  The notice shall be at the top of the first page and printed in capital, typewritten letters or in ten-point, bold-face print.  The form of the notice in substance shall be as follows:

THESE INTERROGATORIES ARE PROPOUNDED IN ACCORDANCE WITH RULE 23 OF THE RULES OF THE SUPERIOR COURT OF THE STATE OF NEW HAMPSHIRE APPLICABLE IN CIVIL ACTIONS.  YOU MUST ANSWER EACH QUESTION SEPARATELY AND FULLY IN WRITING AND UNDER OATH.  YOU MUST RETURN THE ORIGINAL AND ONE COPY OF YOUR ANSWERS WITHIN THIRTY (30) DAYS OF THE DATE YOU RECEIVED THEM TO THE PARTY OR COUNSEL WHO SERVED THEM UPON YOU.  IF YOU OBJECT TO ANY QUESTION, YOU MUST NOTE YOUR OBJECTION AND STATE THE REASON THEREFORE.  IF YOU FAIL TO RETURN YOUR ANSWERS WITHIN THIRTY (30) DAYS, THE PARTY WHO SERVED THEM UPON YOU MAY INFORM THE COURT, AND THE COURT SHALL MAKE SUCH ORDERS AS JUSTICE REQUIRES, INCLUDING THE ENTRY OF A CONDITIONAL DEFAULT AGAINST YOU.

(d) Interrogatories may be served at any time after service of the action.

(e) The party serving the interrogatories shall furnish the answering party with an original and two copies of the interrogatories.  The interrogatories shall be so arranged that after each separate question shall appear a blank space reasonably calculated to enable the answering party to have his or her answer typed in.  The parties may agree to transmit interrogatories electronically or by computer disk, enabling the answering party to provide answers directly after each separate question using the party’s available word processing technology.  In the event of such an agreement, the requirement of providing space between each question sufficient to manually insert answers is obviated.

(f) Interrogatories shall be answered in writing under oath by the party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, by an officer or agent who shall furnish all information available to the party.

(g) Each question shall be answered separately, fully and responsively in such manner that the final document shall have each interrogatory immediately succeeded by the separate answer.

(h) If, in any interrogatory, copies of papers, documents or electronically stored information are requested, such interrogatory shall be deemed to be a request for production pursuant to Rule 24. 

(i)  The party, who is served with interrogatories, shall serve his or her answers thereto, by mail or delivery in hand, upon the party propounding them within 30 days after service of such interrogatories.  The parties may extend such time by written agreement.

(j)  The answers shall be served, together with the original and one copy of the interrogatories, upon the propounding party.  If copies of papers are annexed to answers, they need be annexed to only one set.

(k)    (1) If a party, upon whom interrogatories are served, objects to any questions propounded therein, he or she may answer the question by objecting and stating the grounds.  The party shall make timely answer, however, to all questions to which he or she does not object.  The propounder of a question to which another party objects may move to compel an answer to the question, and, if the motion is granted, the question shall be answered within such time as the court directs.

        (2) When objections are made to interrogatories or requests for admissions, before there is any court hearing regarding said objections, counsel for the parties shall attempt in good faith to settle the objections by agreement.  It shall be the responsibility of counsel for the objecting party to initiate such attempt and to notify the clerk if the objections are settled by agreement.

        (3) If, following such conference, counsel are unable to settle objections, counsel for the objecting party shall notify the clerk and request a hearing on such objections as remain unsettled.

        (4) Where an objection to an interrogatory has been withdrawn by agreement of counsel or has been overruled by the court, the answer to such interrogatory shall be served within 10 days thereafter.

(l)  The adverse party shall have the same privileges in answering written interrogatories as the deponent in the taking of a deposition.

(m)  If a party, who has furnished answers to interrogatories, thereafter obtains information which renders such answers incomplete or inaccurate, amended answers shall be served in accordance with Rule 21(g).

(n)  Interrogatories and answers may be used at the trial to the same extent as depositions.  If less than all of the interrogatories and answers thereto are introduced or read into evidence by a party, an adverse party may introduce or read into evidence any other of the interrogatories and answers or parts thereof necessary for a fair understanding of the parts read or otherwise introduced into evidence.

(o)  Neither the interrogatories nor the answers need be filed with the court unless the court otherwise directs.

Comment

 Rule 23(b) represents a further restriction on the use of interrogatories than had been imposed under former Superior Court Rule 36.  This new limitation is warranted by the adoption of the Automatic Disclosure requirements of Rule 22, which itself tracks in part the provision of Fed. R. Civ. P. 26(a)(1).

(a)  Scope.  Any party may serve on any other party a request: (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent into reasonably usable form, or to inspect and copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 21(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 21(b).

(b)  Procedure.

            (1)  The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity.  The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

            (2)  The party upon whom the request is served shall serve a written response within 30 days after the service of the request.  A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties.  The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated.  If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts.

            (3)  A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

(a) Promptly after litigation is commenced, the parties must meet and confer about preservation of any electronically stored information (ESI).  In the absence of an agreement, any party may move for an order governing preservation of ESI.  Because the parties require a prompt response, the court must make an order governing preservation of ESI as soon as possible.

(b) The parties have a duty to preserve all potentially relevant ESI once the party is aware that the information may be relevant to a potential claim.  Counsel for the parties have a duty to notify their clients to place a “litigation hold” on all potentially relevant ESI.

        (c) Requests for ESI shall be made in proportion to the significance of the issues in dispute.  If the request for ESI is considered to be out of proportion to the issues in the dispute, at the request of the responding party, the court may determine the responsibility for the reasonable costs of producing such ESI.

        (d)  A party may serve on another party a request for designated ESI, including documents, email messages and other electronically recorded messages and communications, photographs, sound recordings, drawings, charts, graphs and other data or data compilations, including back-up and archived copies of ESI – stored in any medium from which information could be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.

        (e)  The request must describe with reasonable particularity each item or category of items to be produced.  The request must also state the form or forms in which ESI is to be produced.

        (f)  The responding party must respond to each item or category of items or state an objection to the request including the basis of the objection, within 30 days of the receipt of the request.

        (g)  The responding party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.

        (h)  The responding party need not produce the same ESI in more than one form.

        (i)  The responding party does not waive privileged information by its inadvertent disclosure under this rule.

        (j)   Inadvertently disclosed privileged ESI is subject to “claw-back” at the request of the responding party.  If agreement is not reached by opposing counsel or the litigants concerning any “claw-back” requests, the court may decide any disputes.

        (k)   A party may also serve on another party a request to permit the requesting party and or its representatives to inspect, copy, test or sample the ESI in the responding party’s possession or control.

Comment

This rule codifies electronic discovery in New Hampshire.  The discovery of electronically stored information (ESI) stands on equal footing with the discovery of paper documents.  It is likely that the growth of ESI and the systems for the creating and storing of such information will continue to be dynamic as technology continues to advance.  For that reason, this Rule does not seek to precisely define ESI.

        Self-represented persons are also subject to the duty to preserve such ESI.

        For a resource to both litigants and judges dealing with the issues of electronically stored information, reference is made to “Navigating the Hazards of E-discovery” published by the Institute of the Advancement of the American Legal System.

        This Rule is similar to Fed. R. Civ. P. 34 but with some changes. 

(a)  A party may take as many depositions as necessary to adequately prepare a case for trial so long as the combined total of deposition hours does not exceed 20 unless otherwise stipulated by counsel or ordered by the court for good cause shown.

(b)  No notice to the adverse party of the taking of depositions shall be deemed reasonable unless served at least 3 days, exclusive of the day of service and the day of caption, before the day on which they are to be taken. Provided, however, that 20 days’ notice shall be deemed reasonable in all cases, unless otherwise ordered by the court.  No deposition shall be taken within 30 days after service of the Complaint, except by agreement or by leave of court for good cause shown.

(c)  Every notice of a deposition to be taken within the State shall contain the name of the stenographer proposed to record the testimony.

(d)  When a statute requires notice of the taking of depositions to be given to the adverse party, it may be given to such party or the party’s representative of record.  In cases where the action is in the name of a nominal party and the Complaint or docket discloses the real party in interest, notice shall be given either to the party in interest or that party’s attorney of record.  Notices given pursuant to this rule may be given by mail or by service in hand.  If a subpoena duces tecum is to be served on the deponent, the notice to the adverse party must be served before service of the subpoena, and the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment.

(e)  The interrogatories shall be put by the attorneys or non-attorney representatives and the interrogatories and answers shall be taken in shorthand or other form of verbatim reporting approved by the court and transcribed by a competent stenographer agreed upon by the parties or their attorneys present at the deposition.  In the absence of such agreements, the stenographer shall be designated by the court.  Failure to object in writing to a stenographer in advance of the taking of a deposition shall be deemed agreement to the stenographer recording the testimony.

(f)  No deposition, as transcribed, shall be changed or altered, but any alleged errors may be set forth in a separate document attached to the original and copies.

(g)  The stenographer shall cause to be noted any objection to any interrogatory or answer without deciding its competency.  If complaint is made of interference with any witness, the stenographer shall cause such complaint to be noted and shall certify the correctness or incorrectness thereof in the caption.

(h)  Upon motion, the court may order the filing of depositions, and, upon failure to comply with such order, the court may take such action as justice may require.

(i)  The signature of a person outside the State, acting as an officer legally empowered to take depositions or affidavits, with his or her seal affixed, where one is required, to the certificate of an oath administered by him or her in the taking of affidavits or depositions, will be prima facie evidence of his or her authority so to act.

(j)  The deponent, on deposition or on written interrogatory, shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

(k)  If any deponent refuses to answer any question propounded on deposition, or any party fails or refuses to answer any written interrogatory authorized by these rules, or fails to comply within 30 days after written request to comply, the party propounding the question may, upon notice to all persons affected thereby, apply by motion to the court for an order compelling an answer. If the motion is granted, and if the court finds that the refusal was without substantial justification or was frivolous or unreasonable, the court may, and ordinarily will, require the deponent or the party, attorney, or non-attorney representative advising the refusal, or both of them, to pay the examining or requesting party the reasonable expenses incurred in obtaining the order, including reasonable counsel fees.

        If the motion is denied and if the court finds that the motion was made without substantial justification or was frivolous or unreasonable, the court may, and ordinarily will, require the examining party or the attorney advising the motion, or both of them, to pay to the witness the reasonable expenses incurred in opposing the motion, including reasonable counsel fees.

(l) Videotape Depositions.

            (1)  A party may, at such party's expense, record a videotape deposition, provided the party indicates the intent to record the videotape deposition in the notice of deposition. At the commencement of the videotape deposition, counsel representing the deponent should state whose deposition it is, what case it is being taken for, where it is being taken, who the lawyers are that will be asking the questions, and the date and the time of the deposition.  Care should be taken to have the witnesses speak slowly and distinctly and that papers be readily available for reference without undue delay and unnecessary noise.  Counsel and witnesses shall comport themselves at all times as if they were actually in the courtroom.

            (2)  If any problem arises as to the admissibility or inadmissibility of evidence, this should be handled in the same manner as written depositions.

            (3)  A party objecting to a question asked of, or an answer given by, a witness whose testimony is being taken by videotape shall provide the court at the Trial Management Conference with a transcript of the videotape proceedings that is sufficient to enable the court to act upon the objection before the trial of the case, or the objection shall be deemed waived.

(m)  Notice or Subpoena Directed to An Organization.  In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination.  The named organization must then designate one or more officers, directors or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.  A subpoena must advise a nonparty organization of its duty to make this designation.  The persons designated must testify about information known or reasonably available to the organization.  This paragraph (m) does not preclude a deposition by any other procedure allowed by these rules.

 

Comment

Rule 26(a) is a major change from current New Hampshire deposition practice.  This new limitation is warranted by the adoption of the Automatic Disclosure requirements of Rule 22, which itself tracks in part the provision of Fed. R. Civ. P. 26(a)(1).  While the typical case ordinarily does not consume 20 hours of depositions, the rule recognizes that there are others for which 20 hours may not be adequate.

The jurisprudence used by the federal courts interpreting cognate Federal Rule of Civil Procedure 30(b)(6) should be used as a guide in the interpretation of Rule 26(m).

(a)  Within 30 days of a request by the opposing party, or in accordance with any order of the court issued pursuant to Rule 5, a party shall make a disclosure of expert witnesses (as defined in Evidence Rule 702), whom he or she expects to testify at trial.

(b)  Said disclosure shall conform with RSA 516:29-b, unless waived by agreement of the parties.

(a)(i)  Any party, desiring to obtain admission of the signature on or the genuineness of any relevant document or of any relevant facts which he or she believes not to be in dispute, may, after 30 days after the date the defendant is served with the Summons and Complaint, without leave of court, serve an original request therefor, accompanied by any documents involved, to the adverse party or his or her representative. Each of the matters of which an admission is requested shall be deemed admitted unless within 30 days after such service the party requested serves a copy thereof to the party requesting such admission, or his or her attorney or non-attorney representative, either a sworn denial thereof or a written objection on the ground of privilege or that it is otherwise improper.

(ii) Notwithstanding (i) above, signatures and endorsements of all written instruments declared on will be considered as admitted unless the party disputing the signature or endorsement shall serve notice on the opposing party that they are disputed within 30 days after the date the defendant files an Answer. See Rule 37(c)

(b)  If objection is made to part of a request, the remainder shall be answered within the time limit, and when good faith requires that a party qualify his or her answer or deny only part of a matter, he or she shall specify so much of it as is true and qualify or deny the remainder.

(c)  Any party, who without good reason or in bad faith, denies under this rule any signature or fact which has been requested and which is thereafter proved, or who without good reason or in bad faith requests such admission under this rule and thereafter fails to prove it, may, on motion of the other party, be ordered to pay the reasonable expense, including counsel fees, incurred by such other party in proving the signature or fact or in denying the request, as the case may be.

(a) Medical Examinations. In actions to recover damages for personal injuries, the defendant shall have the right to a medical examination of the plaintiff prior to trial. The defendant shall seek and obtain the medical examination of the plaintiff within the expert disclosure deadlines set forth by statute, rule, or in the structuring order issued by the court.  The court may order a medical examination of the plaintiff to take place outside of the expert disclosure deadlines, including during trial, only for good cause shown.

(b) Medical Reports. Copies of all medical reports relating to the litigation, in the possession of the parties, will be furnished to opposing counsel on receipt of the same.

(c) Medical Records. Any party shall have the right to procure from opposing counsel an authorization to examine and obtain copies of hospital records and X-rays involved in the litigation.

(d) Special Damages. Any party claiming damages shall furnish to opposing counsel, within 6 months after entry of the action, a list specifying in detail all special damages claimed; copies of bills incurred thereafter shall be furnished on receipt. Any party claiming loss of income shall furnish opposing counsel, within six months after the entry of the action, as soon as each is available, copies of the party's Federal Income Tax Returns for the year of the incident giving rise to the loss of income, and for two years before, and one year after, that year, or, in the alternative, written authorization to procure such copies from the Internal Revenue Service.

(a)  Protective Orders.  Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:  (a) that the discovery not be had; (b) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (c) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (d) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (e) that discovery be conducted with no one present except persons designated by the court; (f) that a deposition after being sealed be opened only by order of the court; (g) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (h) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

(b)  Motions for a protective order relating to trade secrets, confidential research, development or commercial information, or other private or confidential information sought through discovery shall be filed within the time set by these rules to respond to the discovery request or within 30 days of the date of automatic disclosure required by Rule 22, including any extensions agreed to by the parties or ordered by the court, or within ten days of an order of production of records.  All protective orders, whether assented to or not, must be approved by the court.

(c)  If a motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.

(d)  Conditional Default.  If the party upon whom interrogatories or requests for production have been served, shall fail to answer said interrogatories or requests for production within 30 days, or any enlarged period, unless written objection to the answering of said interrogatories or requests is filed within that period, said failure will result in a conditional default being entered by the clerk upon motion being filed indicating such failure to answer.  The party failing to answer shall receive notice of the conditional default.  The conditional default shall be vacated if the defaulted party answers the interrogatories or requests within 10 days of receiving notice thereof and moves to strike the conditional default.  If the defaulted party fails to move to strike the conditional default within 10 days of receiving notice thereof, the adverse party may move to have a default judgment entered and damages assessed in connection therewith.  If, upon review of an affidavit of damages, the court determines that it does not provide a sufficient basis for determining damages, the court may, in its discretion, order a hearing thereon.

(e)  Motion to Compel.  Before any Motion to Compel discovery may be filed, counsel for the parties shall attempt in good faith to settle the dispute by agreement.  If a Motion to Compel regarding requested discovery is filed, the moving party shall be deemed to have certified to the court that the moving party has made a good faith effort to obtain concurrence in the relief sought.

(f)  Where a discovery dispute has been resolved by court order in favor of the party requesting discovery by court order, the requested discovery shall be provided within 10 days thereafter or within such time as the court may direct.

(g)  Motions for protective order or to compel responses to discovery requests shall include a statement summarizing the nature of the action and shall include the text of the requests and responses at issue.

(h)  If the court finds that a motion, which is made pursuant to this rule, was made frivolously or for the purpose of delay or was necessitated by action of the adverse party that was frivolous or taken for the purpose of delay, the court may order the offending party to pay the amount of reasonable expenses, including attorney’s fees, incurred by the other party in making or resisting the motion.

(a) The court may order the parties in any civil action to participate in mediation.

(b)  If the parties agree, they may elect a form of alternative dispute resolution other than mediation (e.g. neutral evaluation, non-binding arbitration or binding arbitration).

(c)  The parties may agree to engage in private mediation instead of or in addition to the court-ordered mediation.

(d)  The parties may also request that the presiding judge assign a complex case for intensive mediation to be conducted by another judge.

(e)  Unless the parties agree otherwise, proceedings under this rule are nonbinding and shall not impair the litigants’ trial rights.

(a)  Cases for Summary Jury Trial Proceedings.  The parties may request, and the court may order that a summary jury trial be held in any case, provided the following conditions are satisfied:

     (1)  The case is not one in which the credibility of a witness is likely to be determinative of the outcome of the case.

     (2)  The decision in the case will not set a precedent but simply requires the application of existing law.

     (3)  The case shall be in trial readiness when called for summary jury trial and all discovery shall have been completed.

(b)  Objections To Order for Summary Jury Trial. Specific objections to an order placing a case on the summary jury trial list shall be raised by motion filed within 10 days of the mailing of notice of such order and shall be heard by the presiding judge.

(c)  Summary Jury Trial; When and Where Held; Notice.

    (1)  Summary jury trials shall be held at the time and place designated by the presiding judge. The court shall notify counsel in writing, at least 15 days before the trial, of the time and place of trial.

    (2)  Unless excused by order of court, clients or client representatives shall be in attendance at the summary jury trial.

(d)  Jury Panel. The case shall be heard before a jury of six members or such lesser number as the parties may stipulate, drawn in accordance with usual procedures. Once a juror has served on a summary jury, he or she shall not serve on any regular jury during the same term.

(e)  Jury Instructions. Unless excused by order of court, counsel shall submit proposed jury instructions to the court and opposing counsel no later than 5 days before the date set for hearing.

(f)  Presentation of Evidence.  All evidence shall be presented through the attorneys, non-attorney representatives or parties (if self-represented), who may incorporate arguments on such evidence in their presentations.  Each representative shall be given one hour to describe to the jury that party’s view of the circumstances of the case.  Counsel may reserve a portion of the hour for a statement in rebuttal.  Only evidence that would be admissible at trial upon the merits may be presented.  Counsel may only present factual representations supportable by reference to discovery materials, to a signed statement of a witness, to a stipulation, or to a document or by a professional representation that counsel personally spoke with the witness and is repeating what the witness stated.  Statements, reports and depositions may be read from, but not at undue length.  Physical exhibits, including documents, may be exhibited during a presentation and submitted for the jury’s consideration.

(g)  Exhibits.  Prior to the summary jury trial, counsel shall mark and exchange copies of all proposed exhibits they plan to offer at said trial and inform the court whether they object to any proposed exhibit, setting forth reasons in support thereof. Failure to exchange a proposed exhibit shall constitute valid grounds for objection to admission. Failure to file an objection to any exchanged proposed exhibit shall constitute a waiver of any objection thereto.

(h)  Objections.  Objections will be received if in the course of a presentation counsel goes beyond the limits of propriety in presenting statements as to evidence or argument thereon.

(i)  The Court’s Charge. After presentations, the jury will be given an abbreviated charge by the presiding judge on the applicable law.

(j)  Verdict.  The jury may return either a consensus verdict or a special verdict consisting of an anonymous statement of each juror’s findings on liability and/or damages (each known as the jury’s advisory opinion). The jury will be encouraged to return a consensus verdict.

(k)  Transcript.  No record of the proceedings shall be permitted except in extraordinary circumstances, as determined by the court.

(l)  Effect of Verdict.  Counsel may stipulate that a consensus verdict by the jury will be deemed a final determination on the merits and that judgment be entered thereon by the court, or may stipulate to any other use of the verdict that will aid in the resolution of the case.

(m)  Restoration to Active List; Inadmissibility of Summary Jury Trial Proceedings.  The parties shall notify the court within 15 days after entry of the summary jury trial verdict whether settlement in the case has been reached. If a settlement agreement or stipulations for docket markings are not filed, the case shall be forthwith restored to the trial docket. In the event that no settlement is reached following the summary jury trial, and the case is restored to the trial docket, no person shall be called as a witness to testify what took place in the summary jury proceeding. In such event, the documents relating to that proceeding and the evidence presented therein shall be sealed and shall not be admissible, except for such evidence as is otherwise admissible at trial under the rules of evidence. The judge who presided at the summary jury proceeding shall not be the trial judge.

(a) Cases for Alternative Dispute Resolution.

        (1) All civil cases shall be assigned to ADR, with the exception of those exempted in paragraph (2).

        (2) The following categories of civil actions are exempt from the requirements of this rule.

            (a) Actions where the parties represent by joint motion that they have engaged in formal ADR before a neutral third party prior to suit being filed.

            (b) Actions exempted by the court on motion and for good cause, but only when said motion is filed within 180 days of the court ordered service date.

    (b) Order of Alternative Dispute Resolution Procedure.

        (1) The order referring the case to ADR will be contained in the case structuring order issued by the court at least thirty days in advance of the assignment date.  ADR proceedings shall not stay, alter, suspend, or delay pre-trial discovery, motions, hearings, or conferences nor the requirements and time deadlines of New Hampshire Superior Court Rules.  ADR proceedings may occur at the courthouse at the request of a party with approval of the court, or at the court’s direction.

        (2) A copy of the ADR report (#NHJB-2488-S) must be filed by the plaintiff(s) or plaintiff(s)' counsel (unless otherwise agreed) within 30 days of the ADR session.  If the ADR report is not timely filed, the court may schedule a show-cause hearing to determine the status of the ADR process and to impose sanctions appropriate to the circumstances, if necessary.

        (3) In any action in which ADR does not result in a settlement, the action will proceed in accordance with any agreement reached in the ADR process, or in the absence of an agreement, as ordered by the court.

    (c) Neutrals.

        (1) All neutrals on the court approved roster shall be attorneys admitted to practice in New Hampshire who are in good standing. 

         (2) Selection of a Neutral.

            (a) Unless the context of the rule indicates otherwise, the term "neutral" shall include one of the following: 

                 i. an ADR professional who is available on a day indicated in the case structuring order, or

                ii. a neutral selected from the court's lists of approved neutrals and indicated in the case structuring order, or

                iii. any neutral who is not on the court's approved lists but who is agreed upon by the parties and indicated in the case structuring order.

            (b)  If the neutral is chosen at a structuring conference, within 10 days after the structuring conference, parties or counsel shall contact the neutral or the alternates, if necessary.  

    (c) Except for the date by which the ADR procedure must be completed, the case structuring order regarding ADR may thereafter be amended by agreement of the parties by filing an amended Stipulation with the court.  The court may permit an extension of the date by which the ADR procedure must be completed on the motion of any party for good cause shown.

        (3) Once the parties contact the neutral, the neutral shall disclose any circumstance likely to create a conflict of interest, the appearance of a conflict of interest, a reasonable inference of bias, or prevent the process from proceeding as scheduled.  If the neutral withdraws, has a conflict of interest, or is otherwise unavailable, another shall be appointed by the court upon motion, unless the parties agree to a qualified substitute neutral.

        (4) Specific Requirements:

            (a) All Rule 32 neutrals must have either:

                (1) training and demonstrated experience in civil mediation; or

                (2) service as a prior Superior Court mediator.

            (b)  All neutrals will be subject to an annual 8-hour refresher-training requirement. The 8-hour refresher training for any year must be completed by January 1, of the following year.  The refresher training requirement may be satisfied by way of court-sponsored training, which shall be provided to neutrals, or neutrals may provide to the Office of Mediation and Arbitration documentation of equivalent training, subject to its approval.

        (5) Application and Approval Process

            (a) In order to serve as a neutral, an attorney must apply and be approved by the Chief Justice of the Superior Court, in consultation with the Office of Mediation and Arbitration.  In approving neutrals, the Chief Justice of the Superior Court may consider the applicant’s alternative dispute resolution experience or other relevant factors, such as length of practice or trial experience.

            (b) Neutrals will be on the court-approved roster that will be posted on the New Hampshire Judicial Branch website.  The neutral may provide biographical information for inclusion on the list, as well as a description of those areas of the law in which the neutral has enhanced knowledge. 

            (c) Neutrals who would like to be included on the court’s roster shall submit their application, and three letters of reference as set forth in this rule to the Office of Mediation/Arbitration.  Inclusion on the court’s list of approved neutrals remains valid for a one year period from January 1 through December 31 of each year.  To request continued inclusion on the court’s list or lists, a neutral, prior to January 1 of each year, shall:

                i. File a statement that there have been no material changes in his or her initial application for inclusion, or if there have been material changes, list and explain them.

                ii. File documentation that the neutral has completed required refresher training in the field of alternative dispute resolution in accordance with section (c)(4)(b).

            (d) No rostering fee shall be required. 

        (6) Immunity for Superior Court Neutral.

         A Neutral selected to serve and serving under Superior Court Rules shall have immunity consistent with RSA 490-E:5.

    (d) Inadmissibility of Alternative Dispute Resolution Proceedings.

            (1) ADR proceedings and information relating to those proceedings shall be confidential unless otherwise agreed in writing by all parties and all counsel. Information, evidence, or the admission of any party or the valuation placed on the case by any neutral shall not be disclosed or used in any subsequent proceeding.  Statements made and documents prepared by a party, attorney, or other participant in aid of such proceeding shall be privileged and shall not be disclosed to any court or arbitrator or construed for any purpose as an admission against interest. All ADR proceedings are deemed settlement conferences consistent with the Superior Court Rules and Rules of Evidence.  In addition, the parties shall not introduce into evidence in any subsequent proceeding, the fact that there was an ADR proceeding or any other matter concerning the conduct of the ADR proceedings except as may otherwise be required by law.  Notwithstanding the foregoing, if the parties have reached a settlement agreement, that fact and the terms of any such agreement may be admissible in a further proceeding to enforce same.

            (2) There shall be no record made of any proceedings conducted pursuant to this rule.

            (3)  Evidence that would otherwise be admissible at trial shall not be rendered inadmissible as a result of its use in an ADR proceeding.

    (e) Sanctions.

If a party or a party's counsel fails without good cause to appear at an ADR session scheduled pursuant to this rule, or fails to comply with any order made hereunder, the court may, on its own or upon motion of a party, impose any sanction that is just under the circumstances.

    (f)  Surcharge.

In addition to the entry fee, the sum of $10.00 shall be collected for all civil cases filed in the Superior Court and shall be deposited in the mediation and arbitration fund established under RSA 490-E:4.

(a) Cases for Arbitration.  Subject to RSA 542, non-criminal disputes will be assigned to arbitration upon agreement of the parties or as mandated by a written contractual provision.

    (b) Submission of Dispute to Arbitration.

        (1)  Prior to the commencement of any lawsuit, if all parties to the arbitration consent, a written request for arbitration may be made to the Administrator of the Office of Mediation and Arbitration.  The administration of the Arbitration Hearing will be conducted pursuant to Superior Court Rule 33, unless the parties agree otherwise.  In all cases, the parties should utilize the Office of Mediation and Arbitration and the list of approved arbitrators.  The parties shall be subject to an administrative fee of $250.00 per party, which shall be paid to the Office of Mediation and Arbitration.  Parties who are indigent may petition the superior court for waiver of the administrative fee.

        In cases submitted under subsection (b)(1) of this rule in which administration of the Arbitration Hearing is conducted pursuant to Rule 33, all references in Rule 33(c) through 33(s) to the superior court shall be deemed to refer to the Office of Mediation and Arbitration.

        (2) After commencement of any lawsuit, a written request for arbitration shall be made to the Superior Court.  In the event that the dispute is pending in a New Hampshire Court, a copy of the written submission shall be sent to the clerk for the appropriate court; and all proceedings in that court will cease.  The administration of the Arbitration Hearing will be conducted pursuant to Superior Court Rule 33.

    (c) Qualifications of and Approval Process for Arbitrators.

   The provisions of Superior Court Rule 32(c) shall apply to arbitrators.

    (d) Immunity for Arbitrators.

   An arbitrator selected to serve and serving under New Hampshire Superior Court Rule 33 shall have immunity consistent with RSA 490-E.

    (e) Neutrality.

   All arbitrators, whether selected by a party, selected by all parties, selected by the court or the Office of Mediation and Arbitration, or selected by arbitrators, shall be neutral and shall serve with impartiality.

    (f) Communication with Arbitrator.

   No party and no one acting on behalf of any party shall communicate ex-parte with an arbitrator or a candidate for arbitrator concerning the arbitration.

    (g) Arbitrator’s Disclosure.

   Upon receipt of notice of appointment in a case, an arbitrator shall disclose any circumstances likely to create a conflict of interest, the appearance of a conflict of interest, a reasonable inference of bias, or prevent the process from proceeding as scheduled.

   In cases where arbitration is selected after suit is filed, if an arbitrator withdraws, has a conflict of interest and there is an unresolved issue concerning recusal or if the arbitrator is otherwise unavailable, another shall be agreed to by the parties or the issue shall be referred to the Court if the issue of recusal cannot be resolved by the parties and the arbitrator. 

   In cases where arbitration is selected pre-suit, if an arbitrator withdraws, has a conflict of interest and there is an unresolved issue concerning recusal or if the arbitrator is otherwise unavailable, another shall be agreed to by the parties or the issue shall be referred to the Office of Mediation and Arbitration if the issue of recusal cannot be resolved by the parties and the arbitrator.

    (h) Arbitration Panel.

   In all cases so assigned, the parties shall select arbitrator(s) from the court list of approved arbitrators.  The parties may choose either a single or three-person panel.  In the event the parties cannot agree upon the panel number, a three-person panel will be utilized for all cases involving claims or counterclaims exceeding $100,000 or cases involving three or more parties.  In the event the parties cannot agree upon the panel number, a single member panel will be utilized for all cases involving claims or counterclaims of $100,000 or less.

        (1) When the parties choose arbitrator(s) from the list of approved paid arbitrators, the parties shall notify the arbitrator(s) and request that the arbitrator(s) provide the parties with a schedule of fees and expenses.

        (2) Unless the court orders or the parties otherwise agree, arbitrators who are chosen from the list of approved paid arbitrators shall be compensated as follows.  In the event a single arbitrator is selected, the parties shall equally share the costs of the arbitrator. When there are two parties and they select a three-person panel, each party shall pay for the arbitrator selected by the party and share the fees of the third panel member. When there are three parties and they select a three-person panel, each party shall be responsible for the arbitrator selected by the party. In the event there are more than three parties, the parties shall pay a pro rata share of the entire arbitration panel's fees.

        (3) Parties may select arbitrator(s) who are not on the court’s list of approved arbitrators if the parties agree on the choice of the arbitrator(s).

        (4) In the event the parties cannot agree on an arbitrator for single-person panels, the court shall designate an arbitrator in the case structuring order.  For three-person panels, if the parties cannot unanimously agree upon the arbitrators and there are two parties, each will select an arbitrator and the two arbitrators will select the third.  In the event there are three parties, each will select an arbitrator.  The three selected arbitrators will serve as the panel.  In the event there are more than three parties and they cannot unanimously agree upon the panel, each party will submit one name to the court and the court shall select three individuals from the names submitted to serve as the arbitration panel.

    (i) Preliminary Hearing.

        (1) At the request of any party, the panel will schedule within 14 days of the request a preliminary hearing with counsel and/or the parties.  The preliminary hearing may be conducted by telephone at the panel’s discretion.

        (2) During the preliminary hearing, the parties and the panel shall discuss and establish a schedule for the hearings, any outstanding discovery issues, any outstanding procedural issues, and to the extent possible a clarification of the issues.

        (3) Ex parte communications between a party's counsel and arbitrator are prohibited.

    (j) Hearings: When and Where Held; Notice.

        (1) Hearings shall be held at a place designated by the panel.  The hearing date shall be established at the preliminary hearing or by the panel after consultation with counsel and/or the parties.  Counsel and/or the parties shall respond to requests for hearing dates within seven (7) days of the request.  Counsel or the parties shall be notified in writing at least thirty (30) days before the hearing of the time and place of the hearing.  No hearing shall be assigned for Saturdays, Sundays, legal holidays, or evenings unless by the unanimous agreement of all counsel or parties.

        (2) Unless excused by the panel, all parties shall be in attendance at the hearing, and each party shall have at least one person present who has authority to authorize settlement.

    (k) Postponement of Arbitration.

   In the event that counsel or any party for good cause shown is unable to proceed, the panel may reschedule the case in their discretion.  The postponement shall be for no more than 30 days absent extraordinary circumstances.

    (l) Default and Sanctions.

   Upon failure of a party to appear at a scheduled arbitration hearing or to participate in good faith in the proceedings, a default judgment may be entered and reasonable costs and attorneys fees may be assessed against the party.  Default judgments may be contested only by the filing of a Motion to Strike Default setting forth specific grounds therefor within ten (10) days of the mailing of the Notice of Default.  The panel shall have discretion as to appropriate sanction, including assessing costs, attorneys’ fees, or entering default.

    (m) Prehearing Submissions.

        (1) Unless otherwise agreed to at the preliminary hearing, the parties shall exchange a list of witnesses they intend to call, including experts, a short description of the anticipated testimony of each witness, an estimate of the length of direct testimony of each witness, and all exhibits at least thirty (30) calendar days before the arbitration hearing.   The parties shall attempt to resolve any disputes regarding the admissibility of exhibits.  The exhibits must be premarked and a list of the exhibits submitted, indicating those exhibits that are to be admitted without objection and those exhibits that are objected to.

        (2) If the parties intend to offer expert witnesses at the time of the hearing, at least sixty (60) calendar days before the arbitration hearing an expert disclosure consistent with Superior Court Rule 27 shall be made.  Failure to make such a disclosure will result in the exclusion of the expert as a witness at the hearing.  Any objection to the sufficiency of the disclosure and, therefore, the admissibility of the expert’s testimony will be ruled upon by the panel.

    (n) Case Summary.

        (1) All parties shall submit and exchange no later than ten (10) days prior to the arbitration hearing a double-spaced typewritten summary of not more than four (4) pages upon 8½” x 11" paper of the significant portions of their case.

        (2) All such summaries shall contain a written stipulation, or, if counsel cannot agree to file a stipulation, a separate statement by each party, setting forth the following information:

            (i) All uncontested facts;

            (ii) All contested facts;

            (iii) Pertinent applicable law;

            (iv) Disputed issues of law;

            (v) Specific claims of liability by each party making such claims;

            (vi) Specific defenses to liability by each party asserting such defenses;

            (vii) An itemized statement of special damages by each party claiming such damages;

        (3) All such summaries shall contain a statement of compliance with the exchange requirement.

        (4) The purpose of the case summary submission is to apprise the panel of the issues in dispute.

    (o) Securing Witnesses and Documents for the Arbitration Hearing.

        (1) The panel may issue subpoenas for the attendance of witnesses or the production of documents.  All parties shall produce for the Arbitration Hearing all witnesses requested in writing by another party that are in their employ or under their control.  This shall be done without the need of subpoena.

        (2) The testimony of witnesses shall be given under oath.

        (3) The plaintiff shall present all of his/her evidence.  In the event of multiple plaintiffs, each plaintiff shall present all of his/her evidence.  The defendant will then present evidence to support his/her defenses and any counterclaims.  In the event of multiple defendants, one defendant will complete his/her evidence and then the remaining defendants will proceed.

        (4) Witnesses will be subject to cross-examination by other counsel (or the opposing party where a party is unrepresented) and the panel.  The panel has the discretion to vary this procedure provided the parties are treated fairly, justly, and equally and that each party is given an adequate opportunity to present his/her case.

        (5) The panel exercising its discretion shall conduct the proceedings with a view to expediting the hearing and expediting the resolution of the dispute.  Therefore, strict conformity to New Hampshire Rules of Evidence is not required, with the exception that the panel shall apply applicable New Hampshire law relating to privileges and work product.  The panel shall consider evidence that is relevant and material to the dispute, giving the evidence such weight as is appropriate.  The panel may limit testimony to exclude evidence that would be unduly repetitive.

        (6) Openings and closing will be allowed and may be made orally or in writing.

    (p) Hearing Closure.

   If post-hearing memoranda are to be submitted or closing arguments are to be made in writing, the hearing shall be deemed closed upon receipt by the panel of the written submissions.  The date for the written submissions shall be established; otherwise, the hearing will be closed at the conclusion of the presentation of the evidence and oral arguments.

    (q) Transcript of the Testimony.

   Any party may arrange for a stenographic or other record to be made of the hearing and shall inform the other parties in advance.  The requesting party shall bear the cost of the stenographic record.  A copy of the stenographic record shall be made available to all other parties upon request.

    (r) Report of Award.

        (1) Within twenty (20) days after the hearing closure date, the panel shall file a Report of Award.  Originals of the Award shall be mailed to all counsel or parties.  If there is a dissent, it shall be signed separately; but, the Award shall be binding if signed by the majority of a three-member panel.

        (2) The decision need not be in a particular form but must include sufficient findings of fact and conclusions of law to establish a basis for the decision.

    (s) Legal Effect of Report and Award; Entry of Judgment.

   The Report of Award, unless appealed consistent with provisions of New Hampshire RSA 542:8, shall be final and shall have the attributes and legal effect of a verdict.  If no appeal is taken within the time and in the manner specified in New Hampshire RSA 542:8, any party may move for confirmation and entry of judgment in accordance with New Hampshire RSA 542:8.  After entry of such judgment, execution process may be issued as in the case of other judgments.

(a) For purposes of this rule only, the term “complex case” shall mean: (1) with respect to any case in which the relief sought is monetary damages, a case wherein there is a realistic possibility the damages awarded could exceed $250,000.00; and (2) with respect to any case in which relief other than monetary damage is sought, a case wherein the trial can reasonably be expected to last more than five trial days.

        (b) Upon agreement of the parties, the presiding justice may assign a complex case for intensive mediation.  Such assignment may be made at or at any time after the case structuring order has been issued but shall not be made later than 90 days before the trial date except for good cause shown.  Assignment of a case to intensive mediation shall not stay, alter, suspend, or delay pretrial discovery, motions, hearings, conferences or trial unless the presiding justice so orders.

        (c) The mediator for intensive mediation conducted under this rule shall be an active, senior active or retired superior court justice other than the justice to whom the case has been assigned for trial or who has presided over any pretrial hearings or ruled upon any pretrial motions.  The justice who serves as mediator and all persons who participate in the mediation shall have no communication with the justice to whom the case is assigned for trial concerning the mediation or any matter pertaining to the merits of the case.  All justices who serve as mediators pursuant to this rule shall have completed an approved mediation training program.  The provisions of Rule 32(c)(3) shall apply to all superior court justices who serve as mediators under this rule.

       The litigants and counsel must recognize that the neutrals will not be acting as legal advisors or legal representatives. They must further recognize that, because the neutrals are performing quasi-judicial functions and are performing under the auspices of the Court, each such neutral has immunity from suit, and shall not be called as a witness in any subsequent proceeding relating to the parties' negotiations and/or his/her participation, except as set forth in Rule 32(d).

        (d) The parties shall be provided at least 30 days advance notice of the date, time and location of the mediation session and of the name of the justice who will be serving as the mediator.   Any party claiming grounds to recuse the justice assigned as mediator, shall file a motion for such relief within 10 days after the date of the notice scheduling the mediation.  Any such motion shall be referred for ruling to the justice assigned as the mediator and said justice’s ruling on the motion shall be final and not subject to further review.   In the event the justice assigned as mediator grants the motion to recuse, the case shall be reassigned to another justice for mediation.  Mediation sessions shall be held at a court facility but, subject to the availability of facilities, normally shall be held in a location other than the court wherein the case will be tried.

(I)  Jury Trials

        (a)  In every case scheduled for jury trial, the court shall schedule a Trial Management Conference which shall take place within 14 days before jury selection, or at such other time as the court shall order.  At the Conference, parties will be present or available by telephone, prepared to discuss conduct of the trial and settlement.

(b)  14 days prior to the Trial Management Conference, unless another time is directed by the court or agreed to by the parties, all parties shall file with the court and serve on the other parties Pretrial Statements, which shall include, by numbered paragraphs, a detailed, comprehensive, and good faith statement, setting forth the following:

    1.  A summary of the case that can be read by the court to the jury at the beginning of trial;

    2.  Disputed issues of fact;

    3.  Applicable law;

    4.  Disputed issues of law;

    5.  Specific claims of liability by the party making the claim;

    6.  Defendant’s specific defenses;

    7.  Itemized special damages;

    8.  Specification of injuries with a statement as to which, if any, are claimed to be permanent;

    9.  The status of settlement negotiations;

    10.  A list of all exhibits to be offered in the direct case of each party.  The parties, or their counsel, shall bring exhibits, or exact copies of them, to court on the day of the Trial Management Conference for examination by opposing parties or their representatives;

    11.  A list of all depositions to be read into evidence;

    12.  A waiver of claims or defenses, if any;

    13.  A list of the names and addresses of all witnesses who may be called;

    14.  Whether there will be a request for a view and, if so, who shall pay the cost in the first instance;

    15.  The names and addresses of the trial attorneys or non-attorney representatives.

(c)  Except for good cause shown, only witnesses listed in the Pretrial Statement will be allowed to testify and only exhibits, so listed, will be received in evidence.

(d)  Preliminary requests for instructions about unusual or complex questions of law shall be submitted in writing at the Trial Management Conference.  Supplementary requests may be proposed at any time prior to the time the court completes its instructions to the jury.

(II)  Bench Trials

    The court may direct the parties to attend a Trial Management Conference in non-jury cases.  Written pretrial statements are not required in non-jury cases unless ordered by the court.  Requests for findings of fact and rulings of law shall be submitted in writing in accordance with a schedule to be determined by the court.

(a)  Addressing the Court.  Anyone addressing the court or examining a witness shall stand.  The rule may be waived if the person is physically unable to stand or for other good cause.  No one should approach the bench to address the court except by leave of the court.

(b)  Opening Statements and Closing Arguments.  Opening statements shall not be argumentative and shall not be longer than 30 minutes unless the court otherwise directs.  Closing arguments shall be limited to 1 hour each, unless otherwise ordered by the court in advance. Before any person shall read to the jury any excerpt of testimony from a transcript prepared by the designated court transcriber, he or she shall furnish the opposing party with a copy thereof.

(c)  Copies of Documents for Court.  Counsel shall seasonably furnish for the convenience of the court, as it may require, copies of the specifications, contracts, letters or other papers offered in evidence.

(d)  Examination of Witnesses.

    (1)  Only one counsel on each side will be permitted to examine a witness.

    (2)  A witness cannot be re-examined by the party calling him or her, after his or her cross-examination, unless by leave of court, except so far as may be necessary to explain his or her answers on his or her cross-examination, and except as to new matter elicited by cross-examination, regarding which the witness has not been examined in chief.

    (3)  After a witness has been dismissed from the stand, the witness cannot be recalled without permission of the court.

    (4)  No person, who has assisted in the preparation of a case, shall act as an interpreter at the trial thereof, if objection is made.

    (5)  Attorney as Witness.

        (i)  Compelling Testimony. No attorney shall be compelled to testify in any cause in which he or she is retained, unless the attorney shall have been notified in writing that he or she will be summoned as a witness therein. Except for good cause shown, such notice shall be provided no later than 30 days after the opposing party discovers that the attorney is a witness in the matter or 30 days after the attorney's appearance in the case, whichever occurs later.

        (ii)  Participation as Advocate. An attorney who gives testimony at trial or hearing shall not act as advocate at such trial or hearing unless the attorney’s testimony relates to an uncontested issue, or relates to the nature and value of legal services rendered in the case, or unless the court determines that disqualification of the attorney would work unreasonable hardship on the attorney’s client.

(e)  Exceptions Unnecessary.  Formal exceptions to non-evidentiary rulings or orders of the court are unnecessary, and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at or before the time the ruling or order of the court is made or sought, makes known to the court by motion or orally on the record the action which the party desires the court to take or his or her objection to the action requested by a party opponent, provided that in each instance the party has informed the court of the specific factual or legal basis for his or her position. 

(f)  Objections.  When stating an objection, counsel will state only the basis of the objection (e.g., “leading,” “non-responsive,” or hearsay”), provided, however, that upon counsel’s request, counsel shall be permitted a reasonable opportunity to approach the bench to elaborate and present additional argument or grounds for the objection.

(g)  Submission of Case.  In all trials, the plaintiff shall put in his or her whole case before resting and shall not thereafter, except by permission of the court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall, before resting, put in his or her whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.

(h)  Bench Motions.  Motions for dismissal or mistrial as well as offers of proof should be made at the bench and out of the hearing of the jury.

(a)  Bills.  If, after an action has been entered for 3 months, a party submits copies of bills incurred to opposing counsel, and no objection has been made within 30 days, the bills may be introduced without formal proof.

(b)  Criminal Record.

    (1)  If a party plans to use or refer to any prior criminal record, for the purpose of attacking or affecting the credibility of a party or witness, the party shall first furnish a copy of same to the opposing party, and then obtain a ruling from the court as to whether the opposing party or a witness may be questioned with regard to any conviction for credibility purposes.

    (2)  Evidence of a conviction under this rule will not be admissible unless there is introduced a certified record of the judgment of conviction indicating that the party or witness was represented by counsel at the time of the conviction unless counsel was waived.

(c)  Documents.  The signatures and endorsements of all written instruments declared on will be considered as admitted unless the defendant shall serve a notice that they are disputed within 30 days after the date the defendant files an Answer.

(d)  Expert Files.  All experts, including doctors and law enforcement personnel, who are to testify at a trial, will be advised by counsel to bring their original records and notes to court with them.

(e)  Life Expectancy.  The life expectancy tables published by the United States Center for Disease Control and Prevention, National Center for Health Statistics and available at http://www.cdc.gov/nchs are admissible as evidence to prove life expectancy.

(f)  Medical Records.  X-rays and hospital records (which are certified as being complete records) if otherwise admissible and competent may be introduced without calling the custodian or technician.

(g)  Motor Vehicles.

    (1)  Speed.  The issue of speed of a motor vehicle on a public highway, if material, will be submitted on the grounds of reasonableness without regard to statutory provisions relative to rates of speed that are prima facie reasonable, unless a party objects thereto at the Trial Management Conference, or files written objection thereto at least 7 days before the trial.

    (2)  Licensing.  No claim is to be made at any trial that the operator of a motor vehicle involved in the case was not properly licensed, unless the claim has been made at the Trial Management Conference, or unless the claim was filed in writing at least 7 days before the trial.

(h)  Proof of Highway Waived Unless Demanded.  In any case in which a road or way is alleged to be a “way” as defined in RSA 259:125 or a public highway, a party shall notify the opposing party at least 10 days prior to trial if said “way” or public highway must be formally proved; otherwise, the need to formally prove said “way” or public highway will be deemed to be waived.

(i)  Stipulations.  Unless otherwise expressly provided by these rules, all stipulations affecting a civil action, except stipulations which are made in the presence of the court and entered on the record, or embodied in an order of the court, shall be in writing and shall be signed by attorneys of record, non-attorney representatives of record, or by parties if self-represented. The court may require handwritten stipulations to be replaced by fully executed, typewritten stipulations within 10 days.

(j) Certified Court Records. If, after a civil or criminal action has been entered, a party provides opposing parties or their counsel with copies of certified New Hampshire state court records, and no objection for good cause has been made at least 30 days before the hearing or trial at which the records are to be introduced, the certified records may be introduced without a witness.

(a)  Juror Questionnaires. 

    (1)  The clerk of the superior court for each county shall maintain a list of jurors presently serving, together with electronic copies of their completed Questionnaires. The clerk's office may maintain a paper copy which may be available upon request for inspection by attorneys, non-attorney representatives and parties representing themselves.

    (2)  The clerk’s office shall permit attorneys, non-attorney representatives and parties representing themselves who have jury cases scheduled for trial during the term to have an electronic copy of the questionnaires which have been completed by the jurors presently serving.  None of these persons shall reveal any information contained in the questionnaires to any person except as may be necessary in connection with the prosecution or defense of the case or cases for which access was granted.

    (3)  Violation of this rule may be treated as contempt of court.

(b)  Voir Dire.  Voir dire of the jury at the start of trial is governed by RSA 500-A:12-a.

(c)  Juror Notetaking.  It is within the court’s discretion to permit jurors to take notes on evidence. If notetaking is allowed, after the opening statements the court will supply each juror with a pen and notebook to be kept in the juror’s possession in the court and jury rooms, and to be collected and held by the bailiff during any recess in which the jurors may leave the courthouse and during arguments and charge. After verdict, the court will immediately destroy or order the destruction of all notes.

(d)  Juror Questioning of Witnesses at Trial.  In any civil case, it is within the discretion of the trial court to permit jurors to ask written questions. If the trial court decides to permit jurors to ask written questions at trial, the following procedure shall be utilized:

    1.  At the start of the trial, the judge will announce to the jury and counsel the decision to allow jurors to ask written questions of witnesses. At this time the judge will instruct the jurors on taking notes and, as to the scope of questioning, the procedure to be followed.

    2.  Trial will proceed in the normal fashion until questioning of the first witness has been completed by both counsel.

    3.  When questioning of the first witness is completed, the court will allow jurors to formulate any questions they may have, in writing. Jurors will be asked to put their seat number on the back of the question. The judge is the only person who will see the number.

    4.  The bailiff will collect the anonymous questions and deliver them to the judge.

    5.  At the bench, the judge and counsel will read the proposed questions. Counsel will be given the opportunity to make objections on the record to any proposed question after which the judge will decide if they are appropriate, based on the rules of evidence, and whether, under the circumstances of the case, the judge will exercise discretion to permit the questions.

    6.  Questions may be rephrased by the judge, or the judge may ask the question in a way mutually agreeable to the parties. The question should, however, attempt to obtain the information sought by the juror’s original question.

    7.  After all the chosen questions are answered, each counsel will have an opportunity to re-examine the witness. The party who called the witness will proceed first. The judge should allow only questions which directly pertain to questions posed by the jurors. The judge may also impose a time limit. If the judge does plan to impose a time limit, counsel should be notified and given an opportunity to object to the length outside the hearing of the jury.

    8.  The judge shall instruct the jury substantially as follows at the beginning of trial:

    Ladies and gentlemen of the jury, I have decided to allow you to take a more active role in your mission as finders of fact. I will permit you to submit written questions to witnesses under the following arrangements.

    After each witness has been examined by counsel, you will be allowed to formulate any questions you may have of the witness. Please remember that you are under no obligation to ask questions, and questions are to be directed only to the witness. The purpose of these questions is to clarify the evidence, not to explore your own legal theories or curiosities.

    If you do have any questions, please write them down on a pad of paper. Do not put your name on the question, and do not discuss your questions with fellow jurors. The bailiff will collect the questions, and I will then consider whether they are permitted under our rules of evidence and are relevant to the subject matter of the witness’ testimony. If I determine that the question or questions may be properly asked of the witness pursuant to the law, I will ask the question of the witness myself.

    It is extremely important that you understand that the rejection of a question because it is not within the rules of evidence, or because it is not relevant to the witness’ testimony, is no reflection upon you. Also, if a particular question cannot be asked, you must not speculate about what the answer might have been.

    9.  If the court decides to ask questions during trial, the following instruction will be given before the jury retires to deliberate:

    Ladies and gentlemen of the jury, I remind you of my earlier remarks regarding juror questions. Some questions cannot be asked in a court of law because of certain legal principles. For this reason there is the possibility that a question you have submitted has been deemed inappropriate by me and has not been asked. I alone have made this determination, and you should not be offended, or in any way prejudiced by my determination.

(e)  Communication with Jurors. 

    (1)  Before and during trial no attorney, non-attorney representative, party or witness shall knowingly communicate directly or indirectly, with any member of the venire from which the jury will be selected, or with any juror.

    (2)  For 30 days after discharge of the jury venire on which a juror has served, no attorney, non-attorney representative or party shall himself or herself or through anyone acting for him or her directly or indirectly interview, examine or question any juror or member of a juror’s family with respect to the trial, verdict or deliberations.  At no time shall an attorney, non-attorney representative or party, or any person acting for any of them directly or indirectly ask questions of or make comments to a juror that are calculated merely to harass or embarrass the juror or to influence the juror’s actions in future jury service. Upon application of any person the court may issue appropriate protective orders or impose sanctions as justice may require.

(f)  Juror Questions During Deliberations.  After a case has been submitted to a jury, and the jury has retired for deliberations, counsel, non-attorney representatives and self-represented parties shall not leave the courthouse without permission of the court. If counsel or non-attorney representatives are absent from the courthouse, with or without permission, when a jury requests additional instructions, such absence shall constitute a waiver of the right to be present during instructions given in response to the request.

(g)  Loss of a juror.  If any juror or jurors become disabled, or otherwise unavailable, during the course of a trial, the trial will continue with the jurors who remain, unless prior to the selection of the jury, a party notifies the court that the party objects to such procedure.

(a)  Whenever an attorney, non-attorney representative or self-represented party states orally or in writing to the court that a particular case has been settled and that agreements will be filed, the court shall forthwith notify by mail or through electronic delivery the parties of record or their representatives of such statement, and, if the agreements and/or docket markings are not filed within thirty days after the date of mailing or electronic delivery of such notice, the court shall take such action as justice may require.

(b)  In order that the court may seasonably make up and complete the court’s record, the parties shall seasonably file all papers and documents necessary to make up and enter the judgment and to complete the record of the case and no execution shall issue, or final order or decree be entered, until such papers are filed.

(a)  All petitions for approval of settlement of actions on behalf of minors shall be signed by the parent, next friend or guardian of the minor.

(b)  Court approval is not required for the settlement of any suit or claim brought on behalf of a minor in which the net amount is equal to or less than $10,000.00. Any settlement of such suit or claim in which the net amount exceeds $10,000.00 shall require court approval.

(c)  In any suit or claim on behalf of a minor if the amount to be paid to the minor before the age of majority exceeds $10,000.00, the court shall require proof in the form of a certified statement from the Circuit Court-Probate Division that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor whether through settlement, judgment, decree or other order, has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19. In the event of a structured settlement where an amount will be paid to the minor both before and after the minor reaches the age of majority, no guardian of the estate of such minor is required if the amount to be paid to the minor before the age of majority is $10,000.00 or less. If the amount to be paid to the minor before the age of majority in such structured settlement exceeds $10,000.00, then a guardian of the estate of such minor is required. In determining whether the net amount of a settlement exceeds $10,000.00, all sums covering attorney’s fees, court costs and other expenses related to the claim including medical expenses are to be excluded.

(d)  The petition shall contain the following information where applicable:

    1.  A brief description of the accident and of all injuries sustained and the age of the minor.

    2.  An itemized statement of all medical expenses and special damages incurred by the minor.

    3.  The total amount of the settlement and whether any bills or expenses are to be paid out of the total settlement or are being paid in addition as part of the parent’s claim. If the parent is being paid anything directly, the petition should contain a statement of the total amount being paid to the parent and a specification of the items covered.

    4.  Whether the settlement was negotiated by counsel actually representing the minor.

    5.  A statement from the attorney or non-attorney representative for the minor as to whether there was medical payment insurance available to the minor and whether or not a claim has been made for said benefits or whether payment has been received.

    6.  A statement from the attorney for the minor as to whether any liens for medical providers have been asserted or are assertable and how the settlement would resolve those liens.

    7.  The net amount to be received on behalf of the minor.

    8.  A request that the settlement be approved.

(e)  The petition must be accompanied with the following material:

    1.  A photocopy of the minor’s birth certificate.

    2.  An itemized statement from counsel detailing the nature of the work performed and the time spent on the case. An attorney’s fee in excess of 25% of the settlement amount will not be ordinarily allowed unless upon good cause shown. In the event that counsel seeks an attorney’s fee in excess of 25%, counsel shall file a motion requesting such an approval which motion shall contain the reasons for the request. A copy of that motion shall be provided to the next friend at least 10 days prior to the hearing or conference relative to approval of the settlement.

(f)  The court will not authorize the next friend to settle the action or authorize the execution of releases and will not make any order respecting indemnity agreements, and the petition should make no such request.

(g)  The court, upon its own motion, may appoint a guardian ad litem to represent the interests of the minor child and/or to review the proposed settlement. The fees of the guardian ad litem shall be paid by defendant.

(h)  The attorney or non-attorney representative, minor, parent, guardian, or next friend, will ordinarily be required to appear in all cases in support of the petition unless attendance has been excused by the court upon prior motion of counsel or upon the court’s review of the file. In all cases where the minor has not actually been represented in the negotiation of the settlement, the minor, parent, and the next friend or guardian shall be required to appear with the attorney or non-attorney representative for the minor.

(i)  A full medical report, including a recent and detailed prognosis from the attending physician, will ordinarily be required. “Recent” shall mean a report dated not more than 6 months prior to the date of the filing of the petition for approval of a settlement.

(j)(1)  Court approval of a net settlement of $10,000.00 or less is not required by statute; however, if a party desires court approval, the court’s order will ordinarily be in substantially the following form:

    Settlement approved.  All bills listed in the petition are to be paid.  Counsel fees in the amount of $_____________ allowed (if settlement was actually negotiated by counsel representing the minor).  The balance, amounting to $_____________, shall be deposited in a savings account in the __________ Bank at ________________ in the name of ______________, as Trustee for ______________, no withdrawals to be made prior to the 18th birthday of said minor, except on written approval of the court.  Said savings institution is authorized to pay over the full amount remaining in said account to the said ________________ upon satisfactory proof that he/she has reached the age of 18 years.  Approval is conditional upon compliance with this order with respect to payment of bills and deposit.

    (2)  If the net amount of a settlement exceeds $10,000.00, court approval is required, and the court’s order will ordinarily be in substantially the following form:

    Settlement approved. All medical bills and other approved expenses listed in the petition are to be paid. Counsel fees in the amount of $______________ allowed (if settlement was actually negotiated by counsel representing the minor). The balance amounting to $_____________, shall be paid over to __________________, as guardian over the estate of the minor.

    Said funds shall, upon payment, be under the jurisdiction of the appropriate Circuit Court-Probate Division and shall be administered in accordance with the requirements of the Circuit Court-Probate Division. Any requests for withdrawal shall be addressed to the Circuit Court-Probate Division for its consideration.

    Approval is conditional upon compliance with this order with respect to payment of bills and deposit of funds in accordance with this order.

    Counsel for the minor shall be responsible for the settlement funds until said funds shall have actually been deposited in the appropriate guardianship account pursuant to the terms of this order and pursuant to the terms of the guardianship.

(k)  In the event that the parties desire to enter into a structured settlement, which is defined as a settlement wherein payments are made on a periodic basis, the following rules shall also apply:

    (1)  Counsel for the defendants shall provide the court with an affidavit from an independent certified public accountant, or an equivalent professional, specifying the present value of the settlement and the method of calculation of that value.

    (2)  If the settlement is to be funded by an annuity, the annuity shall be provided by an annuity carrier meeting at least the following criteria:

        (A)  The annuity carrier must be licensed to write annuities in New Hampshire and, if affiliated with the liability carrier or the person or entity paying the settlement, must be separately capitalized, licensed and regulated and must have a separate financial rating;

        (B)  The annuity carrier must have a minimum of $100,000,000.00 of capital and surplus, exclusive of any mandatory security valuation reserve;

        (C)  The petition shall contain the following information about the annuity and the annuity carrier:

            (i)  a description of the structure of the annuity arrangement;

            (ii)  a description of the history and size of the annuity carrier and its experience in issuing annuities;

            (iii)  a certificate from the New Hampshire Insurance Department stating that the annuity carrier is in good standing in New Hampshire;

            (iv)  whether the annuity carrier is domiciled or licensed in a state accredited by the National Association of Insurance Commissioners under that organization’s Financial Regulation Standards program; and

            (v)  the annuity carrier’s most recent ratings from at least two of the commercial rating services listed in subparagraph (D);

        (D)  The annuity carrier must have one of the following ratings from at least two of the following rating organizations:

            (i)  A.M. Best Company: A++, A+, A, or A-;

            (ii)  Moody’s Insurance Financial Strength Rating: Aaa or Aa;

            (iii)  Standard & Poor’s Corporation Insurer Claims-Paying Ability Rating: AAA, AA+, AA, or AA-;

            (iv)  Duff & Phelps Credit Rating Company Insurance Company Claims Paying Ability Rating: AAA, AA+, AA, or AA-;

        (E)  The annuity carrier must meet any other requirement the court considers reasonably necessary to assure that funding to satisfy periodic payment settlements will be provided and maintained;

        (F)  The annuity carrier issuing an annuity contract pursuant to a qualified funding plan under these rules may not enter into an assumption reinsurance agreement for the annuity contract without the prior approval of the court and the owner of the annuity contract and the claimant having the beneficial interest in the annuity contract. The court shall not approve assumption reinsurance unless the reinsurer is also qualified under these rules;

        (G)  The annuity carrier and the broker procuring the policy shall each furnish the court with an affidavit certifying that the carrier meets the criteria set forth in subsection (D) above as of the date of the settlement and that the qualification is not likely to change in the immediate future. The broker’s affidavit shall also contain the following certification: “This determination was made with due diligence by the undersigned based on rating information which was available or should have been available to an insurance broker in the structured settlement trade”;

        (H)  In the event that the parties to the action desire to place the annuity with an annuity carrier licensed in New Hampshire which does not meet the above criteria, the court may consider approving the same, but only if the annuity obligation is bonded by an independent insurance or bonding company, licensed in New Hampshire, in the full amount of the annuity obligation; and

        (I)  The court reserves the right to require other reasonable security in any structured settlement if the circumstances should so require.

    (3)  The court may, for good cause shown, approve a structured settlement that does not comply with the provisions of paragraph (k). If the Court approves a settlement that does not comply with the provisions of paragraph (k), the court shall make specific findings on the record explaining the reason(s) for approving the settlement.

All cases which shall have been pending upon the docket for 3 years, without any action being shown on the docket other than being placed on the trial list, shall be marked “dismissed,” and notice thereof sent to the parties or representatives who have appeared in the action.

(a)  When a party against whom a Complaint or other pleading (see Rule 6) requiring a response has been filed fails to timely Answer or otherwise defend, the party shall be defaulted.  No such default shall be stricken off, except by agreement, or by order of the court upon such terms as justice may require. The court shall strike the default only upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based.

(b)  Final default may be entered by the court, sua sponte, where appropriate, or by motion of a party, a copy of which shall be sent to all parties defaulted or otherwise.

(c)  In all cases in which final default is entered, whether due to failure to file an Answer or otherwise, the case shall be marked “final default entered, continued for entry of judgment or decree upon compliance with Rule 42.”  A copy of the court’s order and any subsequent orders shall be mailed or electronically delivered to all parties, defaulted or otherwise.

(d)  The non-defaulting party may then request entry of final judgment or decree, by filing a motion, together with an affidavit of damages or, in cases where equitable relief is requested, a proposed decree.  Where the default is based on a failure to file an Answer, the motion shall include a military service statement. The moving party shall certify to the court that a copy of all pleadings has been mailed to the defaulting party and shall include a notice that entry of final judgment or decree is being sought. Any party may request a hearing as to final judgment or decree.  All notices under this rule shall be sufficient if mailed to the last known address of the defaulting party.

(e)  A hearing as to final judgment or decree shall be scheduled upon the request of any party.  Otherwise, the court may enter final judgment or decree based on the pleadings submitted or exercise its discretion to hold a hearing depending on the circumstances of the default, the sufficiency of the pleadings and the nature of the damages sought or relief requested.

(f)  If the court schedules a hearing, all parties, defaulted or otherwise, shall receive notice and an opportunity to be heard.

A motion to set aside a jury verdict shall be filed within 10 days after its rendition, and a motion to set aside any other verdict or decree shall be filed within 10 days from the date on the court’s written notice with respect to same, which shall be mailed by the court on the date of the notice.  In each case, the motion shall fully state all reasons and arguments relied on.

When a verdict is rendered upon a negotiable instrument, or similar evidence of indebtedness, the original shall be filed with the clerk before judgment or execution is issued, unless the court otherwise orders.

(a)  Costs.

Costs shall be allowed as of course to the prevailing party as provided by these rules, unless the court otherwise directs.

    (1)  Taxation of Costs.  Upon written request, the clerk shall tax costs in any case, which shall include the fees of the court and fees for service of process which are documented in the court file.

    (2)  Any party claiming other allowable costs shall file a motion to allow costs together with an itemized, verified bill of all costs requested, to be ruled upon by the court.  Any party aggrieved by the court’s order concerning costs may appeal therefrom within 30 days from the date of notice of such order, regardless of whether an appeal concerning the underlying judgment is sought.

(b)  Allowable Costs. The following costs shall be allowed to the prevailing party: Fees of the court, fees for service of process, witness fees, expense of view, cost of transcripts, and such other costs as may be provided by law. The court, in its discretion, may allow the stenographic cost of an original transcript of a deposition, plus one copy, including the cost of videotaping, and may allow other costs including, but not limited to, actual costs of expert witnesses, if the costs were reasonably necessary to the litigation.

(a) Interlocutory Appeals. Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, counsel shall seasonably prepare and file with the trial court the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 or Supreme Court Rule 9, and after the court has signed the statement, counsel shall mail the number of copies provided for by the rules of the Supreme Court to the clerk thereof.

(b)  Denial of Motion to Dismiss Challenging Personal Jurisdiction, Process and/or Service of Process. 

        When, pursuant to Rule 9(e), a party files a timely Motion to Dismiss challenging the court’s personal jurisdiction, sufficiency of process and/or sufficiency of service of process and the motion is denied, the order denying the motion may be appealed pursuant to Supreme Court Rule 7.  See Rule 9(e) (a party will be deemed to have waived a challenge to personal jurisdiction, sufficiency of process and/or sufficiency of service if the party does not seek review by the supreme court of the denial of the Motion to Dismiss within 30 days; the supreme court’s declining to accept the appeal will not preclude the party from challenging the trial court’s ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court). 

(c)  Judgment on Multiple Claims or Involving Multiple Parties. 

(1) When, in a civil action that presents more than one claim for relief – whether as a claim, counterclaim, cross-claim, or third party claim – or where multiple parties are involved, the court enters an order that finally resolves the case as to one or more, but fewer than all, claims or parties, the court may direct that its order, or a portion of its order, be treated as a final decision on the merits as to those claims or parties if the court:

(A) explicitly refers to this rule;

(B) identifies the specific order or part thereof that is to be treated as a final decision on the merits;

(C) articulates the reasons and factors warranting such treatment; and

(D) finds that there is an absence of any just reason for delay as to the party or claim that is to be severed from the remainder of the case.

An order bifurcating or otherwise severing a civil action shall not, by itself, result in any order being treated as an appealable final decision on the merits unless all of the requirements of Rule 46(c)(1) are met.    

  (2)  Procedure on Appeal.

(A) Any appeal from such an order shall be considered a mandatory appeal for purposes of Supreme Court Rule 7 if a final decision on the merits of the entire case would be a mandatory appeal, and shall be filed in accordance with Supreme Court Rules.

(B)  Prior to accepting an appeal from an order that the Superior Court directed be treated as a final decision on the merits pursuant to Rule 46(c)(1), the Supreme Court may review the trial court’s reasons and factors warranting treating the order as a final decision on the merits.  If the Supreme Court determines, after notice to the parties and an opportunity for the filing of brief memoranda, that the Superior Court clearly erred by directing that the order be treated as a final decision on the merits, the Supreme Court shall vacate the portion of the order directing that it be treated as a final decision on the merits, and otherwise dismiss the appeal without prejudice.

(d) Final Judgment. In all actions in which a verdict or decree is entered, or in which a motion for a nonsuit or directed verdict is granted, or in which any motion is acted upon after verdict or decree, all appeals relating to the action shall be deemed waived and final judgment shall be entered as follows, unless the court has otherwise ordered, or unless a Notice of Appeal has then been filed with the Supreme Court pursuant to its Rule 7:

    (1)  Where no motion, or an untimely filed motion, has been filed after verdict or decree, on the 31st day from the date on the court’s written notice that the court has made the aforementioned entry, grant or dismissal; or

    (2)  Where a timely filed motion has been filed after verdict or decree, on the 31st day from the date on the court’s written notice that the court has taken action on the motion.

(e)  The court shall not grant any requests for extensions of time to file an appeal document in the Supreme Court or requests for late entry of an appeal document in the Supreme Court; such requests shall be filed with the Supreme Court.  See Supreme Court Rule 21(6).

(f)  In civil actions in which a mistrial is declared, appeals from the denial of motions for nonsuit or directed verdict shall not be transferred to the Supreme Court before verdict following further trial unless the court shall approve an interlocutory appeal pursuant to Supreme Court Rule 8.

(g)  The procedure for preparation of a transcript for cases appealed or transferred to the Supreme Court is governed by Supreme Court Rule 15.

Comment

   Rule 46(b), consistent with Rule 9(e) and Mosier v. Kinley, 142 N.H. 415, 423-24 (1997), provides that an order denying a timely-filed Motion to Dismiss challenging personal jurisdiction, sufficiency of process and/or sufficiency of service shall be appealable under Supreme Court Rule 7 without the need for the Superior Court to take the actions set forth in Rule 46(c)(1).

   Rule 46(c)(1) alters the rule announced in Germain v. Germain, 137 N.H. 83, 85 (1993), that “when a trial court issues an order that does not conclude the proceedings before it, for example, by deciding some but not all issues in the proceedings or by entering judgment with respect to some but not all parties to the action, we consider any appeal from such an order to be interlocutory.”  Rule 46(c)(1) authorizes the Superior Court to designate certain orders that do not conclude the proceedings before it as final decisions on the merits that can be immediately appealed to the Supreme Court.  In Germain, the Supreme Court indicated that under some circumstances, an order bifurcating a case might suffice to convert otherwise interlocutory orders into final decisions on the merits.  Rule 46(c)(1), however, explicitly provides that a bifurcation order alone will no longer suffice; rather, the Superior Court must comply with the requirements of Rule 46(c)(1)(A) through (D) if the court intends for an order that finally resolves the case as to one or more, but fewer than all, claims or parties to be treated as a final decision on the merits as to those claims or parties.

Rule 46(c)(2) provides that, prior to accepting the appeal, the Supreme Court may review the Superior Court’s findings under Rule 46(c)(1)(C) and (D).  If, after providing the parties with the opportunity to file brief memoranda, the Supreme Court concludes that the Superior Court clearly erred in its conclusion that the order should be treated as a final decision on the merits, the Supreme Court shall vacate that part of the order and otherwise dismiss the appeal.  The dismissal of the appeal is without prejudice to any party’s ability to file an appeal after the entire action is concluded in the Superior Court.

(a)  Attachments with Notice.  The following procedure is to be used where the plaintiff requests that the court authorize an attachment of the defendant’s property, using the method requiring notice to the defendant and an opportunity for the defendant to be heard before the court renders its decision.

    1.  The Motion to Attach shall be executed under oath, and accompanied by the Notice to defendant as well as a copy of the Order form.

    2.  The Motion to Attach shall be fastened to the Complaint, unless the case is electronically filed.

    3.  Copies of the Complaint and Summons are then to be given to the sheriff or his or her deputy for service on the defendant; immediately after such service, that Complaint, together with the sheriff’s Return of Service, is to be entered with the court.

    4.  If the Motion to Attach is granted, the plaintiff’s attorney, non-attorney representative or self-represented plaintiff is authorized to fill out a Writ of Attachment in accordance with the Order granting the motion.  If permission is granted to make a real estate attachment, the attachment Writ together with the court’s Order thereon may be served on the Registry of Deeds by the sheriff, or his or her deputy, the plaintiff, his or her attorney or any other person to effect the real estate attachment. To effect all other attachments, the Attachment Writ together with the court’s Order thereon must be served by the sheriff, or his or her deputy. The Return of Service is to be filed with the court immediately on completion of the attachment. No additional service upon the defendant is required to perfect an attachment, provided that a Notice of Intent has been served upon the defendant as provided in RSA 511-A:2.

(b)  Attachments without Notice (Ex Parte). The following procedure is to be used where the plaintiff requests permission to attach using the method that does not require notice to the defendant prior to the attachment:

    1.  The Motion for Attachment shall be executed under oath, and accompanied with the Notice to defendant and Order form;

    2.  The motion, and copies, are to be filed in court, and an entry fee paid;

    3.  If the motion is denied, the plaintiff may move for attachment under the provisions of RSA 511-A:3.

    4.  If the motion is granted, the plaintiff or his or her representative is authorized to prepare a Writ of Attachment in accordance with the Order granting the request.

    5.  A certified copy of the Motion, the Notice to the defendant, and the court’s order thereon shall be fastened to the face of the Writ of Attachment.

    6.  The Writ of Attachment, Complaint, and Summons, together with copies, shall be delivered to the sheriff with directions to serve them within the time directed by the court’s order. In those cases where permission is granted to make a real estate attachment, the Attachment Writ together with the court’s Order thereon may be served on the Registry of Deeds by the sheriff, or his or her deputy, the plaintiff, his or her attorney or any other person to effect the real estate attachment before the Writs of Attachment and Summons, together with copies, are delivered to the sheriff.  The Returns of Service are to be filed immediately after service has been completed.

(a)  Temporary Restraining Order; Notice; Hearing; Duration. A Temporary Restraining Order may be granted without written or oral notice to the adverse party only if: (1) it clearly appears to the court in which the action is pending from specific facts shown by affidavit or by the verified petition that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party can be heard in opposition; and (2) the applicant or the applicant’s representative certifies to the court in writing the efforts which have been made to give the notice and/or the specific facts supporting the claim why the notice should not be required.  Any hearing held without the presence of the adverse party or his or her attorney shall be recorded, unless directed otherwise by the court.  Every temporary restraining order, which is granted without notice, shall be endorsed with the date and hour of issuance, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall expire by its terms within such time after issuance, not to exceed 10 days, as the court fixes, unless, within the time so fixed, the order, for good cause shown, is extended for a like period, or unless the party, against whom the order is directed, consents that it may be extended for a longer period.  In case a temporary restraining order is granted without notice, the application for a preliminary injunction shall be set down for hearing at the earliest possible time, and in any event within 10 days, and, when the matter comes on for hearing, the party, who obtained the temporary restraining order, shall proceed with the application for a preliminary injunction, and if he or she does not do so, the court shall dissolve the Temporary Restraining Order.  On 2 days’ notice to the party who obtained the Temporary Restraining Order without notice, or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification, and, in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(b)  Preliminary Injunction.

    (1)  Notice.  No preliminary injunction shall be issued without notice to the adverse party and it shall only be issued by the court.

    (2)  Consolidation of Hearing with Trial on Merits. Before, or after, the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. This subsection (b)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

(c)  Security. Unless the court, for good cause shown, shall otherwise order, no Restraining Order or Preliminary Injunction shall issue except upon the giving of an injunction bond by the applicant, in such sums as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.  No such bond shall ordinarily be required of the United States or of the State of New Hampshire.

(d)  Form and Scope of Injunction or Restraining Order. Unless the court, for good cause shown, otherwise orders, an injunction or restraining order shall be specific in terms; shall describe in reasonable detail the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

(e)  Labor Disputes and Liens. These rules are subject to any statutory provisions relating to restraining orders and injunctions in actions involving or growing out of labor disputes and liens.

(f)  Whenever an injunction is issued without notice to, or appearance by, the adverse party, the party at whose request it is issued, ordinarily shall, and in any case may, be required to give bond with sufficient sureties, conditioned to pay and satisfy all such damages as may be occasioned to the adverse party by reason of the injunction, in case it shall appear that the injunction was improper.

(g)  Whenever these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself or herself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his or her agent upon whom any papers affecting his or her liability on the bond or undertaking may be served.  His or her liability may be enforced on motion without the necessity of an independent action.  The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known.

When the plaintiff is a non-resident, he or she shall furnish security for costs in such amount and within such time as the court may order.

(a)  In proper cases, the defendant may pay into court any sum of money which he or she admits to be due, accompanied by the general issue as to the balance; and, if the plaintiff shall refuse to accept the same with his or her costs, in full satisfaction of his or her claim, such sum shall be struck out of the Complaint; and unless the plaintiff shall prove that a larger sum be due him or her, he or she shall have no costs, but the defendant shall be allowed costs from the time of such payment.

(b)  When a set-off, counterclaim or recoupment shall be filed and a sum of money paid into court as the balance due the plaintiff, the costs of the plaintiff up to that time shall also be paid into court; and the defendant, if he or she prevails, shall be allowed only his or her subsequent costs.

(a)  A judgment creditor seeking an order for weekly payments under RSA 524:6-a must file a motion with the court setting out specific grounds for relief.  Issuance of a Writ of Execution need not be a preliminary step to the weekly payment process.

(b)  Upon the filing of such a motion, an Order noticing the action and identifying a date for a hearing will issue requiring the judgment debtor to appear at a time and date named therein and submit to an examination relative to his or her property and ability to pay said judgment.

(c)  The judgment creditor shall cause the Notice of Hearing to be served either in-hand or by certified mail, restricted delivery, return receipt requested.  If the judgment creditor elects to serve the Notice of Hearing by certified mail, restricted delivery, return receipt requested, and if the return receipt is returned without indication that the Notice of Hearing has been properly served, then in-hand service shall be required.

(d)  On hearing, the judgment debtor will submit a financial affidavit and will be examined under oath as to his or her property and ability to pay. Either party may introduce oral and written evidence as the court deems relevant. Technical rules of evidence will not apply.

(e)  If the debtor fails to appear at the hearing, the court may proceed and orders may be made in the debtor’s absence.

(f)  If the court finds that the debtor has no property other than property that is exempt from attachment or execution and that the debtor is unable to make weekly payments on the judgment, the motion will be dismissed.  Attendance by the plaintiff or plaintiff’s counsel is required unless excused by the court.

(g)  If the court is satisfied that the debtor has property not exempt from attachment or execution, the court may order the debtor to produce it, or so much thereof as may be sufficient, to satisfy the judgment and cost of the proceedings, so that it may be taken on execution.  If the debtor is able to make weekly payments on the judgment, the court may, after allowing the debtor an appropriate amount for his or her support and that of the debtor’s family, if the debtor has a family, order the debtor to make weekly payments on the judgment from time to time.  The court may also make an Order combining any of the orders above mentioned.

(h)  The court may prescribe the times, places, amount of payments and other details in making any of its orders.  The court may at any time review, revise, modify, suspend or revoke any order made.  Failure to obey any lawful order of the court, without just excuse, shall constitute a contempt of court.  Contempt proceedings will be initiated by the creditor by a verified motion.

(i)  A sentence for contempt shall not end the proceedings nor any order made by the court, and future violations of the order, upon which the sentence was founded, may likewise be dealt with as for contempt.

(j)  If the motion is dismissed, the creditor shall not file within one year after the date of such dismissal another motion against the same debtor upon the same judgment unless the court otherwise for good cause orders.

(a)  In General.  Process to enforce a judgment for the payment of money shall be a Writ of Execution, unless the court directs otherwise.  The proceedings on and in aid of execution shall be in accordance with applicable statutes.  In aid of the judgment or execution, the judgment creditor or the judgment creditor’s successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.  Process to enforce a judgment for the delivery of land shall be a Writ of Possession.

(b)  Contempt and Arrest. 

Attachments for contempt may be issued by the court at any time upon evidence of the violation of any injunction or other order, or for neglect of witnesses to give evidence upon subpoena, and commitment may be made thereon. Parties may be arrested upon order of court and required to give bonds for appearance and to abide the order of court in any case where it shall be deemed necessary.

(c)  Sheriffs and deputy sheriffs are authorized to take bail in civil contempt proceedings and shall forward forthwith such bail so taken to the clerk of the court issuing the arrest warrant.

(d)  Criminal Contempt.

    (1)  Summary Disposition. A direct criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the presence of the judge. Oral notice of the conduct observed must be given by the judge. The contemnor must be given an opportunity to speak and present a defense. The order of contempt shall recite the adjudication and sentence and shall be signed by the judge and entered of record. The disposition, when imposed, shall also be entered on a separately numbered State v. (The Contemnor) file.

    (2)  Disposition Upon Notice and Hearing.  An indirect criminal contempt shall be prosecuted with notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of an attorney for the state or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to admission to bail as provided by statute. In a proceeding under this rule, if the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt, the court shall enter an order fixing the punishment.

All Complaints requesting permission to hold special school district or town meetings must set forth the facts alleged to create an emergency requiring an immediate expenditure of money and also the specific articles to be inserted in the warrant in the event such permission is granted.

Sample Decrees are set forth below:

DECREE FOR SPECIAL TOWN MEETING

The above entitled Complaint came before the Court for hearing and the Court, having considered the evidence, finds that an emergency has arisen in the Town of ____________ which may require an immediate expenditure of money.

It is hereby ordered, adjudged and decreed that the Selectmen of the Town of _____________ are hereby authorized to hold a Special Town Meeting (insert time and place of meeting), for the purpose of acting upon the article(s) set forth in the accompanying petition, and the Special Town Meeting shall have the same authority as that of an annual Town Meeting.

The above approval is conditioned upon compliance with all statutory requirements relating to posting and notice which control such a Special Meeting.

This decree is made solely for the purpose of permitting the Special Town Meeting to be held, and it is not to be construed nor interpreted in any other manner nor for any other purpose whatsoever.

DECREE FOR SPECIAL SCHOOL MEETING

The above entitled Complaint came before the Court for hearing and the Court, having considered the evidence, finds that an emergency has arisen within The ____________ School District which may require an immediate expenditure of money.

It is hereby ordered, adjudged and decreed that the said School District is authorized to hold a Special School District Meeting (insert time and place of meeting), for the purpose of acting upon the article(s) set forth in the accompanying petition, and the School District Meeting shall have the same authority as that of an annual School District Meeting.

The above approval is conditioned upon compliance with all statutory requirements relating to posting and notice which control such a Special Meeting.

This decree is made solely for the purpose of permitting the Special Meeting to be held, and it is not to be construed nor interpreted in any other manner nor for any other purpose whatsoever.

(a)  Commencement of Action. 

    (1)  A request for waiver of parental notice prior to abortion, pursuant to RSA 132:34, shall be filed in the superior court in the form of the “Petition for Waiver of Parental Notice For Abortion Requested by a Minor,” as approved by the supreme court.  The minor must provide her legal name and date of birth in the petition, but she may request that the petition be titled using a pseudonym or her initials.  The minor must provide information in the petition about how she can be contacted confidentially, unless she is represented by counsel, in which case she shall provide contact information for her counsel.  If the minor is unrepresented and is unable to provide the court with a confidential means to contact her, the minor must file the petition with the court in person and wait at the court for notice of the scheduled hearing.  See Rule 54(b).

    (2)  The petition for waiver of parental notice shall be signed by the minor.  If a petition is filed by e-mail, the minor’s name may be typewritten in lieu of a signature.

    (3)  All proceedings pursuant to these rules shall be held in closed court, shall be confidential and shall ensure the anonymity of the minor.  All court proceedings shall be sealed.  All documents related to the petition shall be confidential and shall not be available to the public.

(b)  Filing. 

    (1)  No filing fee shall be required for a petition for waiver of parental notice prior to abortion filed pursuant to RSA 132:34. 

    (2) A petition shall be deemed filed upon the court’s receipt of the completed petition for waiver of parental notice.  Filing may be accomplished in any of the following ways:

        (A) by delivery to the office of the clerk of the superior court during normal court hours;

        (B) by depositing in a drop box at a superior court location, but in such circumstances, the petition shall be deemed filed when opened by the court staff, but in any case, no later than 8:00 a.m. the following business day;

        (C) by first-class mail to the office of the clerk of the superior court; or

        (D) by e-mail to the following e-mail address: 

        parentalnotice@courts.state.nh.us.     If a petition is filed by e-mail, the minor or her counsel shall also call the telephone number listed on the judicial branch website to inform the office of the clerk through the court’s answering service that a petition for waiver of parental notice has been filed.  In addition to advising the answering service that a petition under RSA 132 has been filed by e-mail, the minor or her counsel shall identify the superior court location selected for filing, and provide a telephone number so that the minor or her counsel can be contacted in the event the court does not receive the e-mail filing.

(c)  Right to Counsel; Guardian ad Litem.  A minor filing a petition for waiver of parental notice has a right to court-appointed counsel.  A minor requesting the appointment of counsel shall indicate in the petition for a waiver of parental notice whether she is requesting the appointment of counsel by the court.  The court shall appoint counsel for the minor as soon as possible after the filing of the petition for waiver of parental notice in which counsel is requested, but in every case in which counsel is requested, counsel shall be appointed prior to the hearing on the petition.  The court may also appoint a guardian ad litem for the minor.

(d)  Scheduling a Hearing. 

    (1)  A hearing on a petition for waiver of parental notice shall be scheduled as soon as practicable, but in every case, within two court business days of filing, unless such time period is waived by the minor.  At the court’s discretion, the hearing may be held in person, telephonically, or electronically, at any location chosen by the court.

    (2)  The minor and her counsel are obligated to make themselves available for a hearing, which may be scheduled with short notice at any time after the filing of the petition for waiver of parental notice.  Failure on the part of the minor to make herself available for a hearing may result in the denial of the petition without prejudice.

    (3)  Notice of the date and time of the hearing shall be given to the minor or her counsel through the means of contact provided by the minor or her counsel in the petition, or through another means agreed upon by the minor or her counsel and the clerk.  Every attempt shall be made to provide the minor or her counsel with notice of the hearing at least two hours prior to the time of the hearing.  Nevertheless, transmittal of notice to the minor or her counsel of the scheduling of the hearing through the means of contact provided in the petition or agreed upon with the clerk shall be deemed sufficient notice of the hearing, whether the minor or her counsel receives the notice prior to the hearing.

(e)  Ruling on Petition. 

    (1)  The court shall rule upon the petition for waiver of parental notice within two court business days of filing, and a copy of the court’s order will be provided to the minor or her counsel within the same time period.  A copy of the order may be provided in hand, or provided by another means agreed upon by the minor or her counsel and the clerk.  An electronically signed order shall have the same force and effect as a paper order containing an original signature and conventionally signed order.  An electronically signed order shall include, but is not limited to, the signatory’s name (i) preceded by a “/s/”, (ii) typed in the document, or (iii) inserted in the document as an imaged signature.  A person who relies upon a court order issued pursuant to this rule as evidence that the minor has obtained a judicial waiver of notice pursuant to RSA 132:34, II shall not be held liable under RSA 132:35.

    (2)  The clerk shall make a Notice of Decision available to the minor by the next business day.  The Notice of Decision may be provided in hand at the court to the minor or provided by another means agreed upon by the minor or her counsel and the clerk.  The Notice of Decision shall be mailed to the minor’s counsel and to the guardian ad litem, if any, by the next business day.

(f)   Certificate. 

If the petition for waiver of parental notice is granted, the court shall issue a Certificate to Allow Medical Provider to Perform an Abortion without Notifying a Minor’s Parents or Guardian.  This certificate shall set forth the minor’s legal name and her date of birth, but shall not include the court’s factual findings and legal conclusions supporting its decision.  The certificate shall be issued under court seal.  The certificate shall be made available to the minor in hand at the court, or by another means agreed upon by the minor or her counsel and the clerk, no later than the next business day.  A person who relies upon a certificate issued pursuant to this rule as evidence that the minor has obtained a judicial waiver of notice pursuant to RSA 132:34, II shall not be held liable under RSA 132:35.

(g)  Appointment of Counsel. 

    (1)  If the minor requests the appointment of counsel, the court shall appoint an attorney to represent the minor.

    (2)  Whether retained by the minor or appointed by the court, trial counsel shall be responsible for representing the minor in an appeal to the supreme court pursuant to RSA 132:34, II (c), unless the superior court, prior to the filing of the appeal, permits counsel to withdraw due to exceptional circumstances.  A motion to withdraw as counsel in such a matter must state the exceptional circumstances that would warrant the grant of leave to withdraw.  If a motion to withdraw as counsel is granted, the court shall appoint new counsel to represent the minor for the remainder of the proceedings, or for the purpose of an appeal, if any.

    (3)  A minor who seeks to appeal the denial of a petition for waiver of parental notice and who was not represented by counsel in superior court may request that the superior court appoint counsel to assist the minor on appeal.  In such a case, the minor shall file with the superior court a “Request for Court-Appointed Counsel in Expedited Confidential Appeal From Lower Court Decision on Parental Notification Prior to Abortion” form.  Such a request shall be filed with the superior court prior to filing a notice of appeal in the supreme court, and shall be brought to the attention of the court for immediate ruling.  See Supreme Court Rule 32-B.

(h) Counsel and Guardian ad Litem Fees. 

All bills related to fees and expenses pursuant to petitions filed under RSA 132 by court appointed counsel or guardians ad litem must be itemized as to the time spent and expenses incurred.  There shall be no separate charge for overhead or travel time.  The expense of telephone calls shall not be reimbursed.  The maximum fee for representation of a minor in the superior court is $1000.  All bills related to fees and expenses must be submitted to the court no later than sixty days after disposition.  The court may allow late filing for good cause shown, when justice so requires.

In all appeals to the superior court from the action of a state or municipal government body, including but not limited to appeals from the decision of a planning board, zoning board of adjustment, local land use commission, or any other local legislative body, a party may submit an audio or video recording of the proceedings below provided that the recording is also accompanied by the relevant portion of the transcript of the proceedings.  The party relying on the recording has the responsibility for providing the court with a transcript.