Co-authored by Gina B. Apicelli and Margaret R. Kerouac. Published in the New Hampshire Bar Journal, March 2011.
Family Division Rule 1.25-A — Effective April 1, 2011
The Supreme Court has issued an order making initial disclosures mandatory in Family Division marital/parenting cases starting on April 1, 2011. This rule can be found at http://www.courts.state.nh.us/supreme/orders. It is Appendix K of the January 19, 2011 Supreme Court Order, and begins on page 52.
Bench/Bar Collaboration:
Family Division Rule 1.25-A was a multi-year collaborative effort among the family law bench and bar. Family Division rules and policy discussion groups, composed of several family division judges, marital masters, administrators and members of the Family Law Section of the NH Bar, actively participated in numerous meetings to discuss, draft and revise the mandatory disclosure rule.
The concept of a mandatory disclosure rule has been the subject of discussion since March 2008, when the rules and policy group first began meeting to review and enhance the family division rules. The early work of the rules group centered on technical adjustments to the family division rules. These adjustments have been adopted over time by the Supreme Court and many were the subject of previous Bar News articles. Many changes were necessary as a result of the conversion from the family division pilot project, with its limited set of rules, to the state-wide family division court system, with a full set of stand-alone rules. Other revisions and changes were made to enhance, simplify or clarify the rules. Comments from practitioners who were not members of the rules and policy groups were solicited and incorporated into the revised rules. Some of the rule changes adopted through this process relate to depositions, requests for admissions, subpoenas, attachments of exhibits, verification of facts in pleadings, withdrawal of counsel, and first appearance.
After the initial rule enhancements, the bench/bar group turned its attention to the creation of the substantive self-disclosure rule. After receiving input from many judges, marital masters, and family law practitioners inside and outside the rules and policy groups concerning the scope and potential adoption of the rule, and after consideration of mandatory disclosure rules of several other states, Rule 1.25-A was presented to the Supreme Court Advisory Committee on Rules. It was advanced through the public hearing process last June.
Purpose of Rule 1.25-A:
It is the combined hope of family division as well as the rules and policy groups that the mandatory disclosure rule will reduce or eliminate some of the very basic discovery disputes that are now regularly before the courts. The mandatory disclosure rule will require the production of discovery on important issues early in a case, thereby allowing parties to be well prepared for mediation, temporary hearings, or otherwise advance the case quickly and in a more cost-efficient manner. Basic discovery necessary for most cases, as required by the mandatory disclosure rule, must be produced on the earlier date of forty-five (45) days from the date of service/delivery of the petition or ten (10) days prior to the date of the temporary hearing. Interrogatories to request further information are permitted, but early preliminary information will be helpful in all cases.
In this era of budget cuts, court staff vacancies, and constrained judicial resources, not to mention cost-conscious clients, the mandatory disclosure rule should significantly reduce discovery disputes about indisputably relevant and discoverable information. The rule will also reduce court time spent on motions and hearings associated with disputes over basic information. If the scope of production is not necessary in a particular case, it should be noted that the application of the mandatory disclosure rule to a particular case can be altered by agreement. Although counsel may be less frequently the source of a dispute concerning the production of basic discovery, it is to the benefit of both represented and self-represented parties to clarify the information to be produced, require early production, enhance preparation, increase settlement prospects, and establish the appropriate sanctions for non-compliance with basic discovery expectations. In the event that a document is unavailable, a party may so certify and the other may retrieve the document by means of authorization, with the allocation of the associated expense to be determined at the final hearing. It should also be noted that in cases where a protective order is appropriate, the mandatory disclosure rule addresses the procedure to obtain such an order and production under such circumstances.
Although this rule will initially represent a significant practice change for New Hampshire, it is anticipated that it will greatly reduce arguments about whether a document included within the mandatory disclosure rule must be produced, as well as reduce motion practice related to these discovery disputes.
As Family Division Administrative Judge Edwin Kelly states: “The collaborative effort between the court and bar in producing the Mandatory Disclosure Rule will, we hope, result in an equally collaborative effort geared toward implementing the Rule. Members of the bar will be called upon to honor the intention of the Rule which is to reduce the conflict and motion practice related to discovery in family cases. Over the years conflict on these basic issues has consumed the time and resources of the bar, the court and, most importantly, the thousands of families whose cases are the subject of dispute in the state’s family courts. It goes without saying that none of us can afford this unnecessary use of our limited resources, nor does it serve either the best interest of the families before the court or our system of justice to continue down this adversarial path.”
Rule Implementation:
From April 1 forward, a copy of the mandatory disclosure rule will be attached to the initial service packet in each marital/parenting case. This will inform the parties, at the outset of each case, what documents must be produced and set expectations appropriately. It should be of assistance to both represented and self-represented parties to learn from the court what documents are expected to be shared in a particular case. To further educate all parties about this rule, a question/answer document will be included with the initial service packet, an explanation of the rule will be provided by each judge or marital master at the First Appearance, case managers will be highlighting the rule to self-represented parties involved in case management conferences, and mediators will remind parties engaged in mediation about the rule and the importance of full disclosure.
Feedback from family law practitioners is encouraged. Please forward your comments, suggestions, and feedback about your experience with the mandatory disclosure rule to the Chair of the Family Law Section, Margaret R. Kerouac or to Family Division Administrator, Gina Apicelli. All such comments and feedback will be considered in determining whether adjustments should be made to the mandatory disclosure rule after an initial implementation phase.