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