Relevance as an Objection to Discovery Requests in Civil Cases

By: Jared R. Green & Elie A. Maalouf¹

I. Introduction
Civil discovery necessarily implicates two diametrically opposed interests:
one party wants to obtain information that the other party has that may help
win the case, while the other party has information only it knows about that it
wants to avoid providing to its opponent. Both sides are understandably
motivated by their interest in prevailing in the litigation but the resulting
disputes often require intervention from the court. Our judicial system has very
clearly taken sides in this context. To serve the foundational policy in favor of
decisions on the merits,² New Hampshire applies a strong preference for broad
discovery, subject only to common sense protections for obvious instances of
overreach.

Consistent with this preference for liberal discovery, the New Hampshire
Supreme Court has held that materiality, not relevance, is the proper test for
determining whether information requested in discovery should be produced.
Nevertheless, defense attorneys routinely object to plaintiffs’ discovery requests
on the basis of relevance. It is our view that judges should be wary of these
objections based solely on relevance to ensure that such blanket objections do
not interfere with the production of material evidence. This article will review
the New Hampshire law favoring broad civil discovery and it will discuss how
our Supreme Court has handled relevance as an objection to discovery
requests in civil cases.

II. A Review of Civil Discovery in New Hampshire
More than a century ago, our Supreme Court explained that “[i]t
is now universally recognized that the object of a trial is to ascertain the truth
by rational means.”³ The court has supported this overarching principle by
consistently endorsing the broad, liberal use of pretrial discovery. For example,
in Reynolds v. Burgess Sulphite Fibre Co.,⁴ the court declared, “[w]hen the
plaintiff has any case to make out, he has a right to discovery of anything that
may assist him in proving his case, or even the smallest tittle of it.”⁵

By 1967, the court summarized its view of discovery as follows:

Traditionally our courts have subscribed to the
principle that it is essential to the achievement of
justice that evidence be brought to light by discovery
and other pre-trial procedures in time for both parties
to evaluate it and adequately prepare for trial. On the

other hand we recognize that these procedures can
produce abuses and must be limited to obviate
them. However, instead of this court placing arbitrary
crippling limitations on the use of discovery, we are of
the opinion that abuses can be prevented by exercise
of discretion by the Trial Court. Thereon rests in great
measure the success of pre-trial procedures.⁶

While acknowledging the trial court’s discretion in resolving discovery disputes,
the court emphasized that “[d]iscretion should be exercised . . . in a manner
consonant with the concept that the orderly dispatch of judicial business is
accomplished more efficiently when the parties are given adequate opportunity
to properly prepare their case in advance of trial.”⁷

Two years later, the court explained precisely why broad discovery is
necessary:

It is the philosophy of the adversary system that the
truth will more likely be reached if both sides of the
issue are fully presented and that this is more likely to
occur if the sides are presented by partisan advocates.
To permit the system to have maximum effectiveness,
therefore, each of the advocates must be fully informed
and have access to all evidence favorable to his side of
the issue. This is true whether the issue is one which
has been raised by him or by his opponent, and
whether the evidence is in the possession of his
opponent or someone else. If a party is surprised by
the introduction of evidence or an issue or the
presentation of a witness previously unknown to him,
the trier of fact is likely to be deprived of having that
party’s side of the issue fully presented, and the
system becomes less effective as a means of
discovering the truth.⁸

Once again, the court cautioned trial judges to resolve discovery disputes by
erring on the side of full discovery.⁹ This view has persisted into modern times
and, in this century, the court has reiterated that:

New Hampshire law favors liberal discovery. We have
long recognized that justice is best served by a system
that reduces surprise at trial by giving both parties the
maximum amount of information. If a party is
surprised by the introduction of evidence or the
presentation of a witness previously unknown to it, the
trier of fact is likely to be deprived of having both sides

of an issue fully presented, and the system becomes
less effective as a means of discovering the truth.¹⁰

Most recently, the court endorsed Chief Justice MacDonald’s view that
the important benefits of broad pretrial discovery include: (a) facilitating
preparation for trial through access to information, (b) narrowing the
issues that must be tried, thereby shortening trial, (c) avoiding surprise at trial,
and (d) improving the chances of settlement.¹¹

Interrogatories and document requests represent the first step in
the discovery process. Our Supreme Court has recognized that:

The purpose of interrogatories is to narrow the issues
of the litigation and prevent unfair surprise by making
evidence available in time for both parties to evaluate
it and adequately prepare for trial. In order to prevent
unfair surprise, a party may be precluded from
presenting evidence that he fails to disclose during
discovery.¹²

In order to achieve the important goals of interrogatories and document
requests, the court has held that “a party must fully disclose all requested
information which he has at the time of the demand. Although the duty to
investigate is not unlimited, a party must find out what is in his own
records and what is within the knowledge of his agents and employees
concerning the occurrence or transaction.”¹³ Thus, under current New
Hampshire law as articulated by Chief Justice MacDonald:

A party is obligated to respond to requests for
discovery honestly, “fully and responsively.” A party
must refresh his or her recollection, find out what
information is in his or her records and what is known
to his or her agents and employees, and, in general,
attempt in good faith to give the opponent the
information requested. A party need not volunteer
information which has not been requested, but neither
should a party be evasive and rely upon technicalities
of semantics or defects in the request to avoid
producing information which the party knows that the
opponent is seeking and is entitled to receive. The fact
that the agents from whom answers are sought or the
documents or other property to which access is sought
are out of state does not insulate them from discovery
so long as the party from whom discovery is sought
has access to them and is subject to the in personam
jurisdiction of the court.¹⁴

III. Relevance as an Objection to Discovery Requests

While our judicial system undoubtedly gives the trial court discretion to
prevent parties from overreaching with their discovery requests, the court has
repeatedly warned that the proper focus should be on full disclosure. For
example, trial judges should be skeptical of claims by a party that information
sought by its opponent is irrelevant.

Even before the adoption of the current superior court rules, our
Supreme Court emphasized that legal relevance is not the proper test for
admissibility. Instead, discovery of information was allowed “if the court can
fairly find that it may in any way be material to the plaintiff’s cause.”¹⁵
According to the court, “the phrase, material to the plaintiff’s case, may mean
simply to the proper preparation of his case.”¹⁶ The court further instructed
that materiality need not be definitively established.¹⁷ Applying this view, the
court in McDuffey v. Bos. & M. R.R.¹⁸ held that the plaintiff was entitled to
discovery of the tort defendant’s other unrelated accidents, even though this
may include evidence of accidents which will not be admissible at trial because
of dissimilarity in time or conditions, or because it would involve an undue
confusion of collateral issues.¹⁹

New Hampshire’s traditionally liberal view of materiality is based in
large part on the court’s common-sense recognition that no harm is done when
a party produces information that is ultimately inadmissible, while withholding
important information can unfairly change the outcome of a case. As the court
stated in Lefebvre, “[i]f the information favors the defendant, no harm is done;
if it is the other way and negligence and causation are determined, justice is
accomplished.”²⁰ This is precisely why trial judges should be especially
skeptical of discovery objections based entirely on relevance. If the information
is truly irrelevant, and therefore harmless, then it stands to reason that the
disclosing party would have very little incentive to waste the time, effort, and
money to fight production. On the other hand, there is no incentive for a party
to seek information that cannot possibly help prove its case and the requesting
party is clearly in the best position to know what information may be helpful.
In the rare event that a party seeks discovery purely for the
purposes of intentional harassment, such efforts are readily palpable in the
context of the litigation and can be dealt with by the court appropriately. But,
in the absence of such obvious overreaching, the requesting party should not
have to disclose its mental impressions and strategies to justify a facially
plausible request.

Our procedural rules support this view. Under Superior Court Rule
21(b), a party must produce all requested information that is “relevant to the
subject matter involved in the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense of any other

party . . .”²¹ And “[i]t 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.”²² Although the New
Hampshire Supreme Court has not construed this language, the United States
Supreme Court has interpreted identical language:

The key phrase in this definition – ‘relevant to the
subject matter involved in the pending action’ — has
been construed broadly to encompass any matter
that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be
in the case. . . . [D]iscovery is not limited to issues
raised by the pleadings, for discovery itself is designed
to help define and clarify the issues. Nor is discovery

limited to the merits of a case, for a variety of fact-
oriented issues may arise during litigation that are

not related to the merits.²³

This expansive articulation of the relevance standard—applicable to the
same language currently used in Superior Court Rule 21(b)—is entirely
consistent with our Supreme Court’s pre-rules direction that discovery should
be allowed if the trial judge can fairly find that the information sought may in
any way be material to the requesting party’s cause.²⁴ The bottom line is that,
given the high stakes and the obvious incentive to withhold harmful evidence, a
party’s claim that responsive information is irrelevant or immaterial is properly
characterized as an ipse dixit assertion that cannot be accepted at face value
otherwise “any such spurious claims could never be exposed.”²⁵

IV. Conclusion
As the foregoing cases demonstrate, New Hampshire law strongly
endorses full disclosure by parties in civil discovery. By exercising healthy
skepticism of a party’s relevance objections in discovery disputes, courts
ensure that information material to the litigation is disclosed early in the case,
they uphold New Hampshire’s long tradition of allowing broad discovery, and,
most importantly, they facilitate the search for the truth and the fair resolution
of matters on the merits, which should always be the primary goals of the
judicial system.

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¹ Jared Green and Elie Maalouf are attorneys at Abramson, Brown & Dugan in Manchester,
New Hampshire. Their firm’s practice focuses on representing plaintiffs in medical malpractice
and personal injury litigation.
Jared started working with Abramson, Brown & Dugan in 1992 while still attending law school.
In the subsequent thirty years, he has represented injured people and their families in some of

New Hampshire’s most complex and tragic cases, including victims of clergy sexual abuse and
victims of the Hepatitis C outbreak. Most recently, Jared wrote the Brief for the Plaintiff and
presented the oral argument before the New Hampshire Supreme Court in Chartier v. Apple
Therapy, Inc. et al.—a decision in which the Court clarified the law regarding bystander
emotional distress claims in the context of medical negligence cases.
Elie joined Abramson, Brown & Dugan in 2017 after graduating from Suffolk University Law
School, where he served as an editor on the Suffolk University Law Review. Since then, Elie has
represented numerous medical negligence victims and their families in cases involving
catastrophic injuries and wrongful death. In addition to his practice, Elie serves on the New
Hampshire Association for Justice’s Board of Governors and Publications Committee. He is
also the editor of the Verdicts and Settlements Report in the New Hampshire Trial Lawyer’s
Quarterly.

² Krainewood Shores Ass’n v. Town of Moultonborough, 174 N.H. 103, 111 (2021) (citing see In
re Proposed Rules of Civil Procedure, 139 N.H. 512, 515-17, 659 A.2d 420 (1995)); State v. Hess
Corp., 159 N.H. 256, 266 (2009); French v. R.S. Audley, Inc., 123 N.H. 476, 480 (1983).

³ Taylor v. Thomas, 77 N.H. 410, 411 (1914). According to the court, this meant that:
The sporting theory–the theory that a judicial trial is a game to
be played according to certain rules—has no more place in the
present conception of the administration of justice than has the
wager of battle. Id.

⁴ 71 N.H. 332 (1902).
⁵ Id. at 339 (quoting Jenkins v. Bushby, 35 L. J. Ch. 400).
⁶ Hartford Accident & Indem. Co. v. Cutter, 108 N.H. 112, 115 (1967) (citations omitted).
⁷ Id.

⁸Scontsas v. Citizens Ins. Co., 109 N.H. 386, 388 (1969) (citations omitted).
⁹ Id. The Court explained that discovery should be

Subject only to the limitations of full or qualified privileges full
discovery, under the discretionary control of the Trial Judge to
prevent harassment, has supplanted the older notion of the right
of each party to keep from disclosure the facts which he intended
to show at trial and those which he intended not to show.” Id.
(quotations omitted).

See also Yancey v. Yancey, 119 N.H. 197, 198 (1979) (“This State takes a liberal view
of discovery. Absent some privilege and subject to control to prevent harassment, full discovery
is favored . . .”).

¹⁰ Murray v. Developmental Servs., 149 N.H. 264, 267 (2003) (citations omitted and emphasis
added). See also State v. Quintero, 162 N.H. 526, 536 (2011) (quoting State v. Nadeau, 126 N.H.
120, 124 (1985) (“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.’”) (emphasis added).

¹¹ Kurowski v. Town of Chester, 170 N.H. 307, 315 (2017) (citing 4 G. J. MACDONALD, WIEBUSCH
ON NEW HAMPSHIRE CIVIL PRACTICE AND PROCEDURE § 22.03, at 22-6 to 22-7 (4th ed. 2014)).
¹² Bursey v. Bursey, 145 N.H. 283, 286 (2000) (citation omitted).
¹³ Kearsarge Comput. v. Acme Staple Co., 116 N.H. 705, 707 (1976) (citations omitted)
(emphasis added).
¹⁴ G.J. MacDonald, 4 WIEBUSCH ON NEW HAMPSHIRE CIVIL PRACTICE AND PROCEDURE § 22.25
(2023) (footnote omitted).
¹⁵ Lefebvre v. Somersworth Shoe Co., 93 N.H. 354, 356 (1945) (quoting Ingram v. Railroad, 89
N.H. 277, 279).

¹⁶ Id.

¹⁷ Ingram, 89 N.H. at 279.
¹⁸ 102 N.H. 179 (1959).
¹⁹ Id., at 182.
²⁰ Lefebvre v. Somersworth Shoe Co., 93 N.H. 354, 358 (1945).
²¹ Superior Court Rule 21(b).
²² Id.

²³ Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted).
²⁴ See Lefebvre, 93 N.H. at 356.
²⁵ McCabe v. Arcidy, 138 N.H. 20, 25 (1993).