University of Denver

New Hampshire Proportional Discovery/Automatic Disclosure Pilot Rules Project

In August 2009, at the request of Chief Justice John T. Broderick Jr., a committee was established to determine whether and to what degree the problems with the civil justice system identified at the national level apply to the New Hampshire state system. The committee designed the Proportional Discovery/Automatic Disclosure (PAD) Pilot Rules Project to refocus the civil justice system in New Hampshire on the principle that the purpose of a trial is to do justice for the parties involved—which means a system that is efficient, affordable and accessible to all citizens who turn to the court system to resolve disputes.

The PAD Pilot Rules Project was launched in Strafford and Carroll County Superior Courts on October 1, 2010, and applies to all new cases filed in those courts after that date. The pilot project rules—temporarily approved by the New Hampshire Supreme Court for the pilot program—implement five changes to the Superior Court pleading and discovery rules, including replacing notice pleading with fact-based pleading, requiring early initial disclosures after which only limited additional discovery should be permitted, and assigning a single judge to each case who will stay with the case through its termination. By order dated July 17, 2012, the PAD Pilot Rules became applicable to all civil and equity actions filed on or after October 1, 2012, in the Superior Courts for Hillsborough County—Northern District and Hillsborough County—Southern Judicial District. Because of the positive feedback regarding the PAD Project, by order dated January 9, 2013, New Hampshire made the pilot project rules applicable statewide.

The National Center for State Courts has published a report summarizing its evaluation of the pilot project, titled New Hampshire: Impact of the Proportional Discovery/Automatic Disclosure (PAD) Pilot Rules. The evaluation compares case processing outcomes for cases filed in the pilot courts under the PAD Pilot Rules with those for cases filed under the previous rules of civil procedure. To provide a broader context for the evaluation, the NCSC also conducted interviews of key stakeholders involved in the development and implementation of the pilot project, as well as attorneys who had litigated cases under the PAD pilot project rules. The report notes that the results of the Pilot project are mixed. There has not been a statistically significant decrease in the rate at which cases are disposed—a significant goal of the pilot project. Nevertheless, the anecdotal reports from attorneys with pilot project cases suggest the provisions are working and that fact pleading gets the cases moving along faster.

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