Motion to Compel Depositions in New Hampshire

Understanding the Purpose and Significance of a Motion to Compel Depositions

“Discovery in civil actions has been regarded in this jurisdiction as a proper procedural aid for the parties to prepare their case in advance of trial and has been given a broad and liberal interpretation.” (See McDuffey v. Boston Maine R.R (1959) 102 N.H. 179, 181.)

“Our liberal discovery rules came about in recognition of the concept that the ends of justice are best served by a system which gives both parties the maximum amount of information available, thus reducing the possibility of surprise at trial.” (See State v. Quintero (2011) 162 N.H. 526, 536.)

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…” (See N.H. R. Cir. Ct. Dist. Div. 3.21; Desclos v. Southern New Hampshire Medical Center (2006) 153 N.H. 607, 611.)

“It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (See id.)

“The scope of discovery is generally limited to relevant material that is not privileged.” (See Willett v. General Elec. Co. (1973) 113 N.H. 358, 359.)

Procedural Steps Involved in Filing a Motion to Compel Depositions

Rule 26 of the Superior Court of the State of New Hampshire governs depositions.

“A party may take as many depositions as necessary to adequately prepare a case for trial so long as the combined total of deposition hours does not exceed 20 unless otherwise stipulated by counsel or ordered by the court for good cause shown.” (See N.H. R. Super. Ct. 26(a).)

“No notice to the adverse party of the taking of depositions shall be deemed reasonable unless served at least 3 days, exclusive of the day of service and the day of caption, before the day on which they are to be taken. Provided, however, that 20 days' notice shall be deemed reasonable in all cases, unless otherwise ordered by the court. No deposition shall be taken within 30 days after service of the Complaint, except by agreement or by leave of court for good cause shown.” (See N.H. R. Super. Ct. 26(b).)

“Every notice of a deposition to be taken within the State shall contain the name of the stenographer proposed to record the testimony.” (N.H. R. Super. Ct. 26(c).)

“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.” (See N.H. R. Super. Ct. 26(f).)

“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.” (See N.H. R. Super. Ct. 26(h).)

“The deponent, on deposition or on written interrogatory, shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.” (See N.H. R. Super. Ct. 26(j).)

“If any deponent refuses to answer any question propounded on deposition, or any party fails or refuses to answer any written interrogatory authorized by these rules, or fails to comply within 30 days after written request to comply, the party propounding the question may, upon notice to all persons affected thereby, apply by motion to the court for an order compelling an answer.” (N.H. R. Super. Ct. 26(k).)

“If the motion is granted, and if the court finds that the refusal was without substantial justification or was frivolous or unreasonable, the court may, and ordinarily will, require the deponent or the party, attorney, or non-attorney representative advising the refusal, or both of them, to pay the examining or requesting party the reasonable expenses incurred in obtaining the order, including reasonable counsel fees.” (See id.)

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

Discretion of the Court in Deciding a Motion to Compel Depositions

“We review a trial court's rulings on the management of discovery under an unsustainable exercise of discretion standard." (See N.H. Ball Bearings v. Jackson (2009) 158 N.H. 421, 429, 969 A.2d 351; Vention Med. Advanced Components, Inc. v. Pappas (2018) 171 N.H. 13, 24.)

“We will not reverse the trial court's ruling unless there is a clear abuse of that discretion." (See Bronson v. The Hitchcock Clinic (1996) 140 N.H. 798, 809, 677 A.2d 665, 672; YYY Corp. v. Gazda (2000) 145 N.H. 53, 59.)

“To show that the trial court's decision was not sustainable, the appealing party must show that the ruling was clearly untenable or unreasonable to the prejudice of his case.” (See Milliken v. Dartmouth-Hitchcock Clinic (2006) 154 N.H. 662, 665, 914 A.2d 1226; Laramie v. Stone (2010) 160 N.H. 419, 425.)

Legal Precedents and Case Law on a Motion to Compel Depositions

It is well settled that “to facilitate third-party discovery under New Hampshire law, a party may serve a nonparty with a subpoena to provide deposition testimony and with a subpoena duces tecum to require production of certain documents or other materials at the deposition.” (See In re N.H. Div. of State Police (2021) 261 A.3d 283, 288.)

It is also well settled that "a trial court has the inherent authority to sanction discovery abuses by awarding reasonable attorney's fees and costs, or by imposing any other appropriate sanction.” (See N.H. Ball Bearings v. Jackson (2009) 158 N.H. 421, 437.)