FAMILY DIVISION RULES -- GENERAL PROVISIONS

FAMILY DIVISION RULES -- GENERAL PROVISIONS

RULES OF THE FAMILY DIVISION OF THE STATE OF NEW HAMPSHIRE

SECTION 1 -- GENERAL PROVISIONS

These rules are established and relate to the Judicial Branch Family Division pursuant to RSA 490-D.
1.1 Scope and Application: These general provisions apply to all family division case types, unless otherwise stated. All references to “judge” include “marital master” unless otherwise stated.
1.2 Waiver of Rules: As good cause appears and as justice may require, the family division may waive the application of any rule, except where prohibited by law.
1.3 Waiver of Fees: The family division may waive any fee for good cause shown.
1.4 Open to the Public: Hearings in the family division are open to the public unless otherwise specified by statute or order.
1.5 Courtroom Conduct: Any person addressing the Court or questioning a witness shall stand, unless excused by the Court. No person shall approach the bench without permission of the Court.
1.6 Recordings: All hearings held in the courtroom shall be recorded electronically. Recordings need not be monitored unless a party files a formal request for a record and the trial judge determines that the procedures for monitor-less recordings will not adequately protect the record. In making this determination the Court should consider the quality of the recording device, the general sound quality of the courtroom, the nature of the proceedings, and the likelihood of a transcription request.
1.7 Clerk’s Office and Judge’s Chambers:
A. No petitioners, respondents, witnesses, police personnel, prosecutors, attorneys, or others shall be permitted into a Clerk's office or judge's chambers, except when necessary and as authorized by the Court.

B. Official business should be transacted in an area set aside as being accessible to the public for that purpose.

C. No person shall make any statement with regard to the merits of that person's case, orally or in writing, to any judge in whose court or before whom any case is pending or to be heard except in open court or in the presence of all parties.

D. Any person who shall make any such statement to any judge, except in open court or in the presence of all parties, may be subject to contempt proceedings under RSA 495:2.
1.8 Case Transfer:

A. Any case filed in one family division location involving a family that has another active case filed at a different family division location may be transferred to a single location upon motion by any party or upon independent action of the family division. A party wishing to transfer such a case shall file a motion to transfer with the proposed family division location, with a copy to the original family division location. A transfer of the case will take place only upon mutual agreement of both family division locations.

B. Parties who have cases filed in both family division and non-family division locations may request that one case or the other be transferred so that both may be heard at the same location. Similarly, either Court may, on its own motion, recommend transfer. A transfer of the case will take place only upon mutual agreement of both Courts. The request to transfer shall be filed with the court from which the case will be transferred.
1.9 Multiple Case Filings:

A. In the event that two petitions for divorce, parenting, legal separation, or other action are filed involving the same parties but at different family division locations, the court shall transfer one case, considering the second case filed to be a cross-petition in the same action. In deciding which location will retain jurisdiction, the Court will consider, among other factors, convenience of the parties and witnesses and the timing of the filing of the respective petitions.

B. In the event two such petitions are filed involving the same parties, one in a family division location and one in a superior court, upon motion of either party or upon independent action of the Court, and upon consultation of the Courts, and upon consideration of such factors as convenience to the parties and witnesses, the cases shall be heard in a single location.
1.10 Recusal: 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 shall be immediately brought to the attention of the court. Failure to raise a basis for recusal shall constitute a waiver 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.
1.11 Interpreters: If an objection is raised, no person who has assisted in the preparation of a case shall act as an interpreter at the hearing.
1.12 Scheduling: Parties are expected to attend court prepared to select dates for future hearings.
1.13 Computation and Extension of Time: In computing any period of time, 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, as specified in RSA 288, in which case the period shall extend until the end of the next day that is not a Saturday, Sunday, or a legal holiday.
1.14 Guardians ad Litem:

A. Certification by the New Hampshire Guardian ad Litem Board (referred to in this rule as the “Board”) in superior, district and probate courts is encouraged to ensure adequate numbers of guardians ad litem who are qualified to serve in all categories of family division cases.

B. At a minimum, persons serving as guardians ad litem in the family division must be Board certified as follows:

(1) For appointment in family division cases of divorce, legal separation, parental rights and responsibilities, guardians ad litem must be Board-certified in the superior court.

(2) For appointment in family division cases of juvenile delinquency, children in need of services, and abuse and neglect, guardians ad litem must be Board certified in the district court.

(3) For appointment in family division cases of termination of parental rights, guardianship of minors, or adoption, guardians ad litem must be Board-certified in the probate court.

(4) For appointment in family division cases of domestic violence, guardians ad litem must be Board-certified in either superior or district court.

C. Untimely-filed Guardian ad Litem Reports.

(1) A guardian ad litem who, without good cause, fails to file a report required by any Court or statute by the date the report is due may be subject to a fine of not less than $100 and not more than the amount of costs and attorneys fees incurred by the parties to the action for the day of the hearing. The guardian ad litem shall not be subject to the fine under this rule if, at least ten (10) days prior to the date the report is due, the GAL files a motion requesting an extension of time to file the report. See RSA 490:26-g.

(2) The Clerk shall report to the Guardian ad Litem Board all guardians ad litem who fail to file a report by the date the report is due. However, the report shall clearly indicate all such guardians for whom the court has found good cause for the late filing. The Clerk shall make such report available to the public.
1.15 Recommendations/Ex Parte Orders: Recommendations of marital masters may be approved in person, by facsimile transmission, by telephone or electronically. Such recommendations may be approved by any judge of the state, regardless of whether they are specially designated as family division judges. Any judge of the state may issue emergency orders for family division cases in person, by telephone, by facsimile transmission or electronically. All such orders shall be transmitted to the appropriate family division location upon execution. See RSA 490-D:9.
1.16 Appearances: A lawyer intending to represent a party must file a written Appearance.
1.17 Special Appearances: Special Appearances shall be deemed general thirty (30) days after the return day of the action, unless a special plea or motion to dismiss is filed within that time.
1.18 Non-Lawyer Representation:

A. No person who is not a lawyer will be permitted to appear, plead, prosecute or defend an action for any party, other than the person’s own case, unless of good character and until there is on file with the court:

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

(2) An affidavit in which the person discloses:

(a) all misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute),

(b) all instances in which the person has been found by any court to have violated a court order or any provision of the rules of professional conduct applicable to non-lawyer representatives, and

(c) all prior proceedings in which the person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself, in any court.

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.
1.19 Limited Representation By Attorneys:

A. Limited Appearance. 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 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 Family Division Rule 1.24 shall apply to every pleading and motion signed by the limited representation attorney. An attorney who has filed a limited appearance and who later files a pleading or motion 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 writ, petition, counterclaim, cross-claim or any amendment which 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.

B. Pleadings 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 pleading to be used by that party; any pleading drafted by such limited representation attorney, however, must conspicuously contain the statement “This pleading 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 pleading 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 Family Division Rule 1.24 despite the fact the pleading need not be signed by the attorney.

C. Automatic Termination of Limited Representation. Any limited representation appearance filed by an attorney, as authorized under Professional Conduct Rule 1.2(f)) and Family Division Rule 1.19, 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 Family Division Rule 1.20.
1.20 Withdrawal and New Representation:

A. Subject to limited representation under Family Division Rule 1.19 and subject to Professional Conduct Rule 1.2(f), an attorney may withdraw at any time unless a hearing or trial is scheduled within 60 days. If a hearing or trial is scheduled within 60 days, an attorney must file a motion to withdraw.

B. Any motion to withdraw filed by counsel shall clearly set forth the reason for the request and contain a certification that copies have been sent to all other counsel or opposing parties, if appearing pro se, and to counsel's client at the client's last known address, which shall be fully set forth within the body of the motion. 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 the financial obligations to pay for the attorney's services. Notice by mail shall be sent to all counsel of record, or parties if unrepresented by counsel, and to the client of withdrawing counsel, at the client's last known address.

C. Upon receipt of a motion to withdraw and any related objections, the court will give the motion and any objections expedited consideration, rule upon the motion to withdraw, or schedule a hearing as promptly as the docket allows. If withdrawing counsel's client fails to appear at said hearing, the Court may, in its discretion, and without further notice to said client, grant the withdrawal, order the hearing date continued, or make such other orders as justice may require.
1.21 Pro Hac Vice Representation:

A. An attorney who is not a member of the Bar of this State (a “Nonmember Attorney”) who wishes to participate in any hearing must file an application to appear pro hac vice. The application 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:

(a) has been denied admission pro hac vice in this State;

(b) had admission pro hac vice revoked in this State; or

(c) 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 family division, 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 (the “In-State Attorney”) who will be associated with the applicant and present at any hearing. However, presence of New Hampshire Bar member may be waived by the Court.

B. The Court has discretion 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.

C. 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.

D. An applicant for permission to appear pro hac vice shall pay a non-refundable fee of $225.00; 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.
1.22 Testimony of Attorney or Witness:

A. No attorney shall be compelled to testify in any case unless provided with five (5) days’ written notice.

B. Witness Testimony: Witnesses may appear voluntarily on behalf of any party, or may be compelled to appear through the subpoena procedures set forth in RSA 516, et seq.
1.23 Pleadings:

A. Copies of all pleadings filed and communications addressed to the court shall be provided to all other counsel or to the opposing party if appearing pro se. When an attorney has filed a limited appearance under Family Division Rule 1.19 A, 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 Family Division Rule 1.19 C, no further service need be made upon that attorney. All such pleadings and communications shall contain a statement of compliance with this rule.

B. A no contact order in a domestic violence, stalking, or similar matter shall not be deemed to prevent either party from filing appearances, motions, and other appropriate pleadings with the court. At the request of the party filing the pleading, the court shall forward a copy of the pleading 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.
1.24 Pleading Requirements:

A. All pleadings and the appearance and withdrawal of counsel shall be signed by the attorney of record or an associate or by a pro se party. Names, addresses, New Hampshire Bar identification numbers, and telephone numbers shall be typed or stamped beneath all signatures on papers to be filed or served. No attorney or pro se party will be heard until an appearance is properly filed.

B. The signature of an attorney, or a party under oath, constitutes a certificate that the pleading has been read by the person signing the document; that to the best of the person's knowledge, information and belief there is good ground to support it; and that it is not filed for delay. If a pleading is not signed, or is signed with an intent to defeat this rule, it may be stricken and the action may proceed as though the pleading had not been filed.

C. No exhibits shall be attached to pleadings unless necessary to support an affidavit.

D. If either party changes attorneys during the pendency of the action, the name of the new attorney shall be entered on the docket. Whenever the attorney of a party withdraws an appearance, and no other appearance is entered, the Clerk shall notify the party by mail of such withdrawal. If the party fails to appear by himself or attorney by a date fixed by the court, the Court may take such action as justice may require.
1.25 Discovery:

A. General. Unless specified in another section of these rules, these discovery rules apply in all family division case types. The Court, in its discretion, may limit or expand the scope of discovery in any case as justice requires.

B. 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; permission to enter upon land or other property for inspection and other purposes; physical or mental examinations; and requests for admission. Unless the Court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.

C. Scope of Discovery. Unless otherwise ordered, parties may obtain discovery regarding any matter, not privileged, which 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, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds 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.

D. Expert Witnesses.

(1) Within thirty (30) days of a request by the opposing party, or in accordance with an order of the Court, a party shall be required to supply a Disclosure of Expert Witness(es) as defined under Rule 702 of the Rules of Evidence, which document shall:

(a) identify each person, including any party, whom the party expects to call as an expert witness at trial;

(b) provide a brief summary of the expert's education and experience relevant to the expert’s area of expertise;

(c) state the subject matter on which the expert is expected to testify; and

(d) state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

The party shall attach to the disclosure a copy of any expert report relating to such expert.

(2) A party may discover facts known or opinions held by an expert, who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(3) Unless manifest injustice would result, (i) the Court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions 1.25 D (1) and 1.25 D (2) of this rule, and (ii) with respect and with respect to discovery obtained under subdivision 1.25 (D) (2), the Court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

E. Written Interrogatories.

(1) General. Any party may serve written interrogatories upon any other party, by mail or delivery by hand.

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.

Interrogatories may include any topic not subject to privilege. Furthermore, it is not grounds for refusal to answer a question that the testimony would be inadmissible at the hearing, if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

(2) Notice. The party requesting the interrogatories shall provide the other party with notice of the obligation to answer the interrogatories within thirty (30) 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 shall be as follows:

Notice: These interrogatories are propounded in accordance with Family Division Rule 1.25. 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 attorney who served them upon you. If you object to any question, you must note your objection and state the reason for your objection. 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.
Interrogatories may be served at any time after service of the action.

(3) Copies. The party serving the interrogatories shall furnish the answering party with an original and two copies. The interrogatories shall be arranged so that after each separate question space will be provided to enable the answering party to respond.

(4) Answers. 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.

Each question shall be answered separately, fully and responsively, such that the final document shall have each interrogatory immediately followed by its answer.

The party served with interrogatories shall provide the original and one copy of the answers, by mail or delivery in hand, to the party requesting them within thirty (30) days of receipt of the interrogatories. If, in any interrogatory, a copy of a paper or document is requested, only one copy need be included with the answers. If the copy is a report of an expert witness or a treating physician, it shall be the exact copy of the entire report or reports rendered by him, and the answering party shall certify that the existence of other reports of that expert, either written or oral, are unknown to the answering party and, if such become later known or available, the answering party shall serve them promptly on the requesting party.

(5) Extension of Deadlines. The parties may extend interrogatory deadlines by written agreement, provided any such extension is not inconsistent with discovery orders of the Court.

(6) Objections, Motions to Compel, Motions to Strike. If a party objects to any questions, that party may either answer the question by stating it is improper or may, within twenty (20) days after the service of interrogatories, move to strike any question, setting out the specific grounds of objection. The answering party shall make timely answer, however, to all questions to which that party does not object. All other interrogatories shall nonetheless be answered within the thirty days allowed, or within such time as the Court directs.

The party requesting the interrogatories who receives a response that one or more questions are improper, may within twenty (20) days, move to compel answer(s) to the question(s), and, if the motion is granted, the question(s) shall be answered within such time as the Court directs.

If a party, who is served with interrogatories requesting copies of papers, objects to furnishing them, that party may either state with specificity the reasons for non-compliance or invite the party seeking the copies to inspect and copy the papers at a designated time and place. The party seeking a copy of a paper which is not provided may within twenty (20) days of receipt of the answers file a motion seeking compliance.

Motions to strike interrogatories or to compel more specific answers shall include a statement summarizing the nature of the action and shall include the text of the questions and answers, if any, objected to.

When objections are made to interrogatories or requests for admissions, before there is any hearing regarding the objections, counsel for the parties shall attempt in good faith to settle the objections. 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. If, following such conference, counsel are unable to settle objections, counsel for the objecting party shall notify the Clerk and request a hearing.

Where an objection to an interrogatory has been withdrawn or has been overruled by the Court, the answer to the interrogatory shall be provided within ten (10) days.

(7) Frivolous Motions. 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.

(8) Limitations on Number of Interrogatories. A party may file more than one set of interrogatories to an adverse party, but the total number of interrogatories shall not exceed fifty (50), unless the Court otherwise orders for good cause shown after the proposed additional interrogatories have been filed. 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 it is subsidiary or incidental to or dependent upon or included in another question, and however the questions may be grouped, combined or arranged.

The other party shall have the same privileges in answering written interrogatories as the deponent in the taking of a deposition.

(9) Supplementation of Responses. 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 Family Division Rule 1.25 J.

(10) Use of Interrogatories. Interrogatories and answers may be used at the hearing to the same extent as depositions. If less than all of the interrogatories and answers are marked or read into evidence by a party, an adverse party may read into evidence any other of the interrogatories and answers or parts necessary for a fair understanding of the parts read into evidence.

Neither the interrogatories nor the answers need be filed with the Clerk unless the Court so directs.

(11) Failure to Answer. If the party, upon whom interrogatories have been served, fails to answer the interrogatories within thirty (30) days, unless written objection to the answering of the interrogatories is filed within that period, such 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 within ten (10) days of receiving notice and moves to strike the conditional default. If the defaulted party fails to move to strike the conditional default within ten (10) days of receiving notice, the adverse party may move to have a default judgment entered and damages assessed. 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, upon its own motion, order a hearing.

F. Request for Admissions

(1) Any party may ask the other to admit certain facts or the genuineness of documents or signatures by submitting a request for admissions with the court. If the request for admissions seeks the admission of the genuineness of documents or signatures, the documents and/or signatures shall be attached to the request. Copies of the complete request as filed with the court shall be delivered by mail or in hand to the other party.

(2) Each of the matters of which an admission is requested shall be considered to be admitted unless within 30 days after delivery of the request to the other party, the other party files with the clerk and delivers a copy by mail or in hand to the party requesting such admission, or to that party’s attorney, either a sworn denial or a written objection on the ground of privilege or that the request is otherwise improper. If an objection is made to part of a request, the remainder shall be answered within the time limit. When good faith requires that a party qualify an answer, or deny only part of the matter, the party shall specify so much of the answer as is true, or qualify or deny the remainder.

G. Depositions.

Notice shall be provided to any person whose deposition is requested. Twenty (20) days notice is considered reasonable in all cases, unless otherwise ordered by the Court.

Every notice of a deposition to be taken within the State shall contain the name of the stenographer/professional proposed to record the testimony.

When a statute requires formal notice of the taking of depositions to be given to the adverse party, it may be given to such party or the party's attorney of record. Notices given pursuant to this rule may be given by mail or by service in hand. See RSA 517 et seq.

The questions and answers shall be taken in shorthand or other form of verbatim reporting approved by the Court and transcribed by a competent stenographer/professional agreed upon by the parties or their attorneys. In the absence of such agreement, the stenographer/professional 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/professional recording the testimony.

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.

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.

The signature of a person outside the State, acting as an officer legally empowered to take depositions or affidavits, with an appropriate seal affixed, where one is required, to the certificate of an oath administered by him in the taking of affidavits or depositions, will be prima facie evidence of this person’s authority.

The person being deposed 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.

If any person being deposed refuses to answer any question asked in the deposition, the party asking the question may request an order of the Court 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 person deposed and the party or attorney advising the refusal, or either of them, to pay the examining or requesting party the reasonable expenses incurred in obtaining the order, including reasonable attorneys 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 attorneys fees.

H. Use of Videotape Depositions.

The Court, within its discretion, may allow the use of videotape depositions that have been taken by agreement; and provided further that, if the parties cannot reach such an agreement, the Court may, in its discretion, order the taking and/or use of such depositions. At the commencement of the videotape deposition, counsel representing the person deposed 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.

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

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 pretrial conference with a transcript of the videotape proceedings that is sufficient to enable the Court to act upon the objection before the hearing, or the objection shall be deemed waived.

I. Limits on Discovery. 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:

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the Court;

(6) that a deposition after being sealed be opened only by order of the Court;

(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court.


If the 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.

J. Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under a continuing duty to supplement responses to include information thereafter acquired, as follows:

(1) A party is under a duty to supplement responses concerning any question regarding the identity:

(a) and location of persons having knowledge of discoverable matters; and

(b) of each person expected to be called as an expert witness, the subject matter on which the expert is expected to testify, and the substance of the testimony.

(2) A party is under a duty to amend a prior response if it is known that the response:

(a) was incorrect when made; or

(b) though correct when made, is no longer true.

K. Discovery Deadlines. The discovery dates established at a scheduling conference or other hearing are Court orders and may not be extended by the parties without written permission of the Court.

L. Abuse of Discovery. The Court, in its discretion, may sanction any party including through the use of fees and costs, for abusing the discovery process.
1.26 Motions:

A. Parties may not address written communications directly to the judge. All requests shall be by properly filed motion with certification of delivery of a copy of the motion to the other party, unless jointly filed. No exhibits shall be attached to motions unless necessary to support an affidavit.

B. The court will not hear any motion based upon facts unless the facts are verified by affidavit, or are already contained in the court record. No exhibits shall be attached to motions unless necessary to support an affidavit. The same rule will be applied as to all facts relied upon in objections to any motions.

C. Any party filing a motion shall certify to the court that a good faith attempt has been made 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. Motions to which all parties assent or concur will be ruled upon as court time permits.

E. Motions that are not assented to will be held for 10 days from the filing date of the motion to allow other parties time to respond, unless justice requires an earlier Court ruling.

F. Motions to Reconsider: A motion for reconsideration or other post-decision relief shall be filed within ten (10) days of the date on the Clerk’s written notice of the order or decision, which shall be mailed 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 ten (10) pages. A hearing on the motion shall not be permitted except by order of the Court.

No answer to a motion for reconsideration or other post-decision relief shall be required unless ordered by the Court, but any answer or objection must be filed within ten (10) days of notification of the motion.

If a motion for reconsideration or other post-decision relief is granted, the court may schedule a further hearing.

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.
1.27 Continuances:

A. Except for the initial hearing in a case or for an emergency hearing, hearing dates are generally selected by agreement of the parties and the court. Therefore, motions to continue will usually be denied, except for good cause shown. The Court may condition the granting of a motion to continue on a requirement that the moving party obtain a date and time agreeable to all other parties and the court.

B. For hearings scheduled by the court without input from the parties, motions to continue shall be filed within ten (10) days from the date of the mailing of the notice of a hearing.

C. Any motion to continue filed by counsel shall contain a certification that the client has been notified of the reasons for the continuance, has assented to the motion, and has been forwarded a copy of the motion.

D. A motion to continue based upon the unavailability of a material witness must be supported by an affidavit containing the name of the material witness, the anticipated content of the testimony, what has been done to procure the attendance of the witness, including the date the request was initially made of the witness to testify, and a statement that the adverse party will not admit to the facts without the presence of the witness. The same rule shall apply with regard to the unavailability of a material document or other evidence.

E. Priority of Scheduling. Where a hearing has been scheduled in one case prior to the scheduling of another hearing, the case scheduled first shall take priority over the subsequently scheduled cases, except as follows:

(1) to accommodate a subsequently scheduled case involving a jury trial in state or federal court, or argument before the New Hampshire Supreme Court or any federal appellate court;

(2) to comply with the hearing requirements of RSA 169-B, C, or D;

(3) to comply with the hearing requirements of RSA 173-B; or

(4) if unusual circumstances cause the respective Courts to agree that an order of precedence other than the above shall take place.
1.28 Offers of Proof:

A. When making an offer of proof, an attorney represents to the Court that the witness or document which is the subject of the offer has been examined by the attorney and the attorney reasonably believes, taking into account all that is known about the case, that the evidence is not false, is admissible through a witness who could testify under oath to establish the point for which it is offered, and is not offered for a frivolous purpose. In an ex parte proceeding, the attorney also represents that any offer of proof has been accompanied by a sworn statement of all material facts known to the attorney which will enable the Court to make an informed decision of the issues presented.

B. When the Court exercises discretion to receive evidence by offers of proof, the following procedure shall be employed:

(1) an offer of proof as to the testimony of a witness shall be received only if that witness is in the courtroom at the time of the offer, and that witness would testify to the same information under oath if asked;

(2) any witness whose testimony is presented by offer of proof may be cross-examined by the opposing party, subject to the discretion of the Court; and

(3) where credibility is challenged, or for any purpose in the Court’s discretion, the Court may question the witness or require the witness’ proof be presented from the witness stand.

C. If evidence could have been accepted by the Court without the necessity of testimony under oath from a witness for its introduction, for example when the parties have agreed, that evidence may also be received by offer of proof without the presence of the witness in court.

D. Requests for restraining orders against any person should not be presented by offers of proof.
1.29 Regulation of Media and Other Coverage in the Courtroom:

A. The Court should generally permit the media to photograph, record and broadcast all courtroom proceedings that are open to the public. The Court may limit electronic media coverage if there is a substantial likelihood of harm to any person or other harmful consequence. Except as specifically provided in this rule, or by order of the Court, no person shall within the courtroom take any photograph, make any recording, or make any broadcast by radio, television or other means in the course of any proceeding.

B. Official court reporters and authorized recorders, are not prohibited by section (A) of this rule from making voice recordings for the sole purpose of discharging their official duties.

C. Proposed Limitations on Coverage by the Electronic Media. Any party to a court proceeding – or any other interested person – shall notify the court at the inception of a matter, or as soon as practicable, if that person intends to ask the Court to limit electronic media coverage of any proceeding that is open to the public. Failure to notify the court in a timely fashion may be sufficient grounds for the denial of such a request. In the event of such a request, the Court shall either deny the request or issue an order notifying the parties to the proceeding and all other interested persons that such a limitation has been requested, establish deadlines for the filing of written objections by parties and interested persons, and order an evidentiary hearing during which all interested persons will be heard. The same procedure for notice and hearing shall be utilized in the event that the Court sua sponte proposes a limitation on coverage by the electronic media. A copy of the Court's order shall, in addition to being incorporated in the case docket, be sent to the Associated Press, which will disseminate the Court's order to its members and inform them of upcoming deadlines/hearing.

D. Advance Notice of Requests for Coverage. Any requests to bring cameras, broadcasting equipment and recording devices into a New Hampshire courtroom for coverage of any court proceedings shall be made as far in advance as practicable. If no objection to the requested electronic coverage is received by the court, coverage shall be permitted in compliance with this rule. If an objection is made, the media will be so advised and the court will conduct an evidentiary hearing during which all interested parties will be heard to determine whether, and to what extent, coverage by the electronic media or still photography will be limited. This rule and procedures also apply to all court procedures conducted outside the courtroom or the court facility.

E. Pool Coverage. The Court retains discretion to limit the number of still cameras and the amount of video equipment in the courtroom at one time and may require the media to arrange for pool coverage. The court will allow reasonable time prior to a proceeding for the media to set up pool coverage for television, radio and still photographers providing broadcast quality sound and video.

(1) It is the responsibility of the news media to contact the court Clerk in advance of a proceeding to determine if pool coverage will be required. If the Court has determined that pool coverage will be required, it is the sole responsibility of the media, with assistance as needed from the court Clerk, to determine which news outlet will serve as the “pool.” Disputes about pool coverage will not be resolved by the Court. Access may be curtailed if pool agreements cannot be reached.

(2) In the event of multiple requests for media coverage, because scheduling renders a pool agreement impractical, the court Clerk retains the discretion to rotate media representatives into and out of the courtroom.

F. Live Feed. Except for good cause shown, requests for live coverage should be made at least five (5) days in advance of a proceeding.

G. Exhibits. For purposes of this rule, access to exhibits will be at the discretion of the Court. The Court retains the discretion to make one “media” copy of each exhibit available in the court Clerk’s office.

H. Equipment. Exact locations for all video and still cameras, and audio equipment within the courtroom will be determined by the Court. Movement in the courtroom is prohibited, unless specifically approved by the Court.

(1) Placement of microphones in the courtroom will be determined by the presiding judge. An effort should be made to facilitate broadcast quality sound. All microphones placed in the courtroom will be wireless.

(2) Video and photographic equipment must be of professional quality with minimal noise so as not to disrupt the proceedings; flash equipment and other supplemental lighting or sound equipment is prohibited unless otherwise approved by the presiding judge.

I. Restrictions. Unless otherwise ordered by the Court, the following standing orders shall govern:

(1) No flash or other lighting devices will be used.

(2) Set up and dismantling of equipment is prohibited when court is in session.

(3) No camera movement during court session.

(4) No cameras permitted behind the defense table.

(5) Broadcast equipment will be positioned so that there will be no audio recording of conferences between attorney and client or among counsel and the presiding judge at the bench. Any such recording is prohibited.

(6) Photographers and videographers must remain a reasonable distance from parties, counsel tables, alleged victims, witnesses and families unless the trial participant voluntarily approaches the camera position.

(7) All reporters and photographers will abide by the directions of the court officers at all times.

(8) Broadcast or print interviews will not be permitted inside the courtroom before or after a proceeding.

(9) Photographers, videographers and technical support staff covering a proceeding shall avoid activity that might distract participants or impair the dignity of the proceedings.

(10) Appropriate dress is required.

Comment

As the New Hampshire Supreme Court stated in Petition of WMUR Channel 9, 148 N.H. 644 (2002), a presiding judge should permit the media to photograph, record and broadcast all courtroom proceedings that are open to the public. A judge may limit electronic media coverage if there is a substantial likelihood of harm to any person or other harmful consequences. Closure of proceedings to the electronic media, however, should occur only if four requirements are met:

(1) Closure advances an overriding interest that is likely to be prejudiced;

(2) The closure ordered is no broader than necessary to protect that interest;

(3) The judge considers reasonable alternatives to closing the proceedings; and

(4) The judge makes particularized findings to support the closure on the record.

It is the presiding judge's responsibility to ensure that trials are conducted in a fair and impartial manner, free from undue pressures and outside influences. Similarly, the presiding judge has a responsibility to the public and the press to provide reasonable access to judicial proceedings. Above all, trials must be conducted in an atmosphere of dignity and decorum.

In Petition of WMUR Channel 9, the New Hampshire Supreme Court held, among other things, that the presiding judge can limit electronic media coverage if there is a substantial likelihood of harm to any person or other harmful consequences. The Supreme Court required that trial court orders restricting coverage be: (1) based on clearly articulated findings of fact; (2) made after an evidentiary hearing during which all interested parties are entitled to be heard; (3) drawn narrowly to address a particular problem; and (4) imposed only when no other practical alternative is available.
1.30 Access To Confidential Records – Fees And Notice: Any person or entity not otherwise entitled to access may file a motion or petition to gain access to:

A. A financial affidavit filed pursuant to Family Division Rule 2.16 and kept confidential under RSA 458:15-b, I, or RSA 461-A:3.

B. Any other sealed or confidential court record. See Petition of Keene Sentinel, 136 N.H. 121 (1992).

Filing Fee: There shall be no filing fee for such a motion or petition.

Notice: In open cases, the person filing such a motion shall provide the parties to the proceeding with notice of the motion by first class mail to the last mail addresses on file with the Clerk. In closed cases, the Court shall order that the petitioner notify the parties of the petition to grant access by certified mail to the last known address of each party, return receipt requested, restricted delivery, signed by the addressee only, unless the Court expressly determines that another method of service is necessary in the circumstances.
1.31 Appeals to the Supreme Court:

A. When a question of law is to be transferred after a decision on the merits, all appeals shall be deemed waived and final judgment shall be entered on the thirty-first (31st) day from the date on the Clerk's written notice that the Court has made the decision on the merits, unless the party aggrieved enters a notice of appeal in the Supreme Court within thirty days from the date on the Clerk's written notice of the Court's decision that aggrieves the party, pursuant to Supreme Court Rule 7, and mails the number of copies provided for by the rules of the Supreme Court to its Clerk. 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).

B. Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, counsel shall prepare and file with the Clerk of the family division the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 and 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 its Clerk.