New Hampshire Expert Witness Discovery Rules

What Is the Scope of Expert Discovery in New Hampshire?

In New Hampshire, expert discovery is primarily managed through court-issued scheduling orders rather than a fixed rule akin to Federal Rule of Civil Procedure 26(a)(2). Under Superior Court Rule 5, the court issues a structuring order early in the proceedings, setting deadlines for expert disclosures and reports. Each party must disclose the experts they intend to call and provide a report for any retained expert. Although New Hampshire does not specify the contents of these reports in its rules, they generally include the expert's opinions and supporting data, mirroring federal practice.

Discovery Limitations

• Communications and Drafts: New Hampshire does not have explicit rules concerning the discovery of expert communications or draft reports, but court practice often limits such discovery to protect attorney-expert interactions.
• Consulting Experts: Discovery of materials from consulting experts is typically restricted unless exceptional circumstances justify it, aligning with federal standards.

Timing and Procedure for Expert Discovery in New Hampshire

Expert discovery timelines in New Hampshire are governed by court orders rather than a rigid schedule. Expert disclosures and report exchanges occur according to the structuring order under Superior Court Rule 5. Expert depositions, which are not automatically granted, usually require either mutual agreement or court approval and are conducted after report exchanges.

Procedural Steps

• Deadlines: Deadlines for expert disclosures and reports are specified in the structuring order.
• Supplementation: Parties must update expert disclosures if opinions change or new data emerges, as mandated by N.H. Super. Ct. Civ. Rule 22.

What Methods of Expert Discovery Are Permitted in New Hampshire?

New Hampshire allows multiple methods of expert discovery, albeit under specific conditions:

• Depositions: Not granted as of right, require agreement or court order.
• Interrogatories and Document Requests: These are generally permissible for testifying experts.
• Consulting Experts: Discovery is limited and typically requires a demonstration of substantial need or exceptional circumstances.

Privilege and Work-Product Protections

• Testifying vs. Consulting Experts: The state distinguishes between these categories, with consulting experts enjoying greater protection against discovery.

Limits on Discovery of Expert Materials and Communications

New Hampshire's approach to expert materials and communications emphasizes protection of the attorney-expert relationship:

• Draft Reports and Communications: Generally protected from discovery unless bias or factual bases are at issue.
• Compensation Details: Discoverable under certain conditions to assess potential bias.

Consequences for Noncompliance or Discovery Violations

Failure to adhere to expert discovery rules or deadlines can lead to significant sanctions under Rule 21:

• Exclusion of Testimony: The court may preclude undisclosed experts from testifying.
• Monetary Sanctions and Continuances: These may be ordered to enforce compliance with scheduling orders.

Relevant Rules and Legal Authority in New Hampshire

New Hampshire’s expert discovery is primarily governed by:

• [N.H. Super. Ct. Civ. Rule 5](https://www.courts.nh.gov/rules-superior-court-state-new-hampshire): Establishes the structuring order for expert disclosures.
• [N.H. Super. Ct. Civ. Rule 22](https://www.courts.nh.gov/rules-superior-court-state-new-hampshire): Mandates supplementation of discovery responses.
• N.H. Super. Ct. Civ. Rule 21: Provides for sanctions in case of discovery violations.
• N.H. R. Evid. 702: Adopts a Daubert-style standard for expert testimony admissibility.

Key Legal Distinctions

• Deviation from Federal Practice: New Hampshire's reliance on court-managed timelines contrasts with the federal model, which prescribes specific rules for expert disclosures.
• Case Law: While state courts often follow federal principles, local rulings can modify the interpretation of these rules.