Family Division Rules Table of Contents
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: The family division may waive the application of any rule as justice may require, except where precluded 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: Other than limited representation by attorneys as allowed by Family Division Rule 1.19, and Professional Conduct Rule 1.2(f), no attorney shall be permitted to withdraw that attorney’s appearance in a case after the case has been scheduled 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 shall clearly set forth the reason therefor 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. Upon receipt of a motion to withdraw, a hearing may be scheduled. 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. If withdrawing counsel's client fails to appear at said hearing, the Court may, in its discretion, and without further notice to said client, order the hearing date continued or make such other order 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: No attorney shall be compelled to testify in any case unless provided with five (5) days’ written notice.
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 pro se party to a pleading 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. 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 I.
(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.
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 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.
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.
G. 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.
H.
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.
I.
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.
J.
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.
K.
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. 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.
C.
Motions to which all parties assent or concur will be ruled upon as court time
permits.
D.
Motions that are not assented to will be held for 10 days from the date of the
motion to allow other parties time to respond, unless justice requires an
earlier Court ruling.
E.
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.
Family Division Rules Table of Contents