N.H. R. Super. Ct. 5

As amended through September 26, 2024

Rule 5 - Case Structuring Order

(a) Within 20 days of the Answer date counsel, or parties if unrepresented, shall confer to discuss the claims, defenses and counterclaims and to attempt to reach agreement on the following matters:

(1) a statement as to whether or not a jury trial, if previously demanded, is waived;

(2) a proposed date for trial and the estimated length of trial;

(3) dates for the disclosure of expert reports;

(4) status of waiver of RSA 516:29-brequirements;

(5) deadlines for the parties to propound interrogatories;

(6) deadlines for the completion of all depositions;

(7) deadlines for the completion of all discovery;

(8) deadline for filing all dispositive motions, which shall not be less than 120 days prior to the trial date;

(9) deadlines for filing all other pre-trial motions, which shall be filed not later than 14 days prior to trial;

(10) the type of alternative dispute resolution (ADR) procedures that shall be utilized and the deadline for completion of ADR; and

(11) deadline for filing witness and exhibit lists, which shall not be later than the trial management conference.

(b) If the parties reach agreement as to all information required by Rule 5(a) above, they shall file a completed written stipulation setting forth their agreement on all of the required matters within the said 20 days. Upon review by the court, if those stipulations are deemed acceptable, they shall become the case structuring order of the court.

(c) If the parties are unable to reach agreement as to any of the matters set forth in Rule 5(a), or if the court rejects their proffered stipulations, the matter shall be scheduled for a telephonic case structuring conference between the court and counsel, or parties if unrepresented. The case structuring conference shall be held no later than 75 days after the Answer is filed. The court may order the parties to appear in court for the hearing if the court deems this necessary for the efficient progression of the case. Should counsel, or parties if unrepresented, be unable to reach an acceptable agreement as to any of the required matters, the court shall issue such orders as it deems appropriate. The fact that a structuring conference has not yet been held or a case structuring order has not yet been issued does not preclude any party from pursuing discovery and does not constitute grounds for any party to fail to comply with its discovery obligations.

(d) Following the case structuring conference (if one is necessary), the court will issue a case structuring order.

N.H. R. Super. Ct. 5

Comment

This rule is similar to former Superior Court Rule 62, but does contain several provisions to improve former Rule 62. First, like former Superior Court Rule 62 it contains a "meet and confer" requirement that mandates that, within 20 days after the Answer date, the parties must confer and attempt to reach agreement on all important issues regarding scheduling, discovery and the management of the litigation through the time of the trial. However, unlike former Rule 62, Rule 5 provides that if the parties are able to reach agreement and execute a stipulation regarding all such matters, this stipulation shall presumptively become the case structuring conference order, thus eliminating the need for a case structuring conference. This change is designed to remedy the frequently-heard complaint that the practice of routinely holding structuring conferences requiring the personal appearance of counsel, or parties if unrepresented, in every case is expensive and unproductive. In addition, Rule 5 also provides that even where the parties are unable to reach agreement on all issues or where the court finds the agreement unacceptable, the structuring conference will be held telephonically unless the court specifically orders that counsel and/or the parties appear in court for the conference. This aspect of the new rule reverses the practice under which structuring conferences are held at the courthouse unless a party or counsel files a motion requesting that he or she appear telephonically. Again, the purpose of the change is to reduce costs and increase efficiency.

Section (c) of this rule also changes former Rule 62 in two other significant ways. First, it changes the date for holding the structuring conference from 45 days after the return date, as provided in former Rule 62. Under Rule 5, the structuring conference must be held within 75 days after the Answer is filed. Given the automatic disclosure requirements established by Rule 22, 75 days after the Answer will give the parties time to digest the disclosures made pursuant to Rule 22 and to formulate reasoned positions in cases where they have been unable to reach agreement on all pretrial management issues. This time limit also is realistic in light of superior court resource limitations. The second significant change accomplished by section (c) of Rule 5 is the provision stating that discovery can be initiated before the structuring conference is held and before a structuring conference order has been issued and that a responding party is required to comply with its discovery obligations notwithstanding the fact that a structuring order has not yet been issued. This provision is intended to address the complaint often heard from lawyers that court scheduling issues which result in delay in holding a structuring conference are used as an excuse to delay responding to entirely legitimate discovery requests.