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NEW HAMPSHIREMarc R. ScheerJoseph G. MattsonWADLEIGH, STARR & PETERS, P.L.L.C.95 Market StreetManchester, New Hampshire 03101Phone: 603-669-4140www.wadleighlaw.commscheer@wadleighlaw.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Production of pre-suit investigation material is governed by New Hampshire SuperiorCourt Rule 21(e)(1) which permits a party to obtain discovery of “documents andtangible things…prepared in anticipation of litigation or for trial…upon a showing thatthe party seeking discovery has substantial need of the materials in the preparation ofhis case and that he is unable without undue hardship to obtain the substantialequivalent of the materials by other means.” The Court is required to “protect againstdisclosure of the mental impressions, conclusions, opinions, or legal theories of anyattorney or other representative of a party concerning the litigation.”2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?To obtain discovery of written or recorded statements taken during investigation of anincident that would otherwise be discoverable, a Plaintiff will have to show 1) substantialneed for the discovery and 2) that the plaintiff cannot obtain the “substantial equivalent,”without undue hardship. Specifically, Rule 21(e)(1) provides that “[a] party may obtaindiscovery of [information that is] otherwise discoverable and prepared in anticipation oflitigation…by or for another party or by or for that other party’s representative (includinghis or her attorney, non-attorney representative, consultant, surety, indemnitor, insurer,or agent) only upon a showing that the party seeking discovery has substantial need ofthe materials in the preparation of his or her case and that he or she is unable withoutundue hardship to obtain the substantial equivalent of the materials by other means.” Inallowing discovery under this rule, “the court shall protect against disclosure of themental impressions, conclusions, opinions, or legal theories of an attorney or otherrepresentative of a party concerning the litigation.” However, if a plaintiff seeks a copyof his own statement taken during investigation of an incident, he need not make theshowing required under Rule 21(e)(1). See N.H. R. Civ. P. 21(e)(2).