General
(1) Do you generally permit extensions of the tracking order when the parties jointly request an extension? If so, under what circumstances do you not permit an agreed-upon extension of a tracking order?
Salinger, J. I will generally allow requests to modify a tracking order where the parties have a good reason for seeking the change, the revision seems reasonable, and it will not require any change in a trial date. It is always easier for me to allow a joint request that the parties have successfully negotiated than a one-sided request one that is bitterly opposed.
Krupp, J. I try to set an initial schedule that will not require an extension. I will grant extensions for good cause. I am less inclined to grant an extension that appears to be based on a lack of diligence by a party or counsel.
Once trial dates are set in the BLS, the time is held for the particular case and, at least close to trial, it is difficult to find another case that can be slotted in for trial. I rarely allow motions to reschedule trials, particularly when they are filed close to the trial date. I will only continue a trial for very good cause.
Squires-Lee, J. I will allow the first such motion if for good cause. Any further motions will require a Rule 16 conference. If the parties are having difficulty meeting the discovery deadlines established at the start of the case, they should ask the clerk to schedule a Rule 16 conference. Thereafter, when a revised schedule is established, I will not allow further extensions unless there is a showing of unforeseen good cause. I have observed that it is common for the parties to seek an extension in the discovery deadline after the close of discovery. That is not appropriate. If you had not been granted a stay of discovery, and believe that you are not going to meet the deadline, bring a motion in advance of the previously ordered discovery deadline.
Barry-Smith, J. Although the first goal should be to establish a schedule that is realistic and therefore should not require extension, I typically will allow joint requests to extend the tracking order so long as there appear to be meaningful reasons and not just lack of diligence. When trial dates are involved, lawyers will need to surpass a high bar for continuances.
(2) Do you permit only a certain number of extensions of the tracking order? What factors do you consider when presented with multiple extension requests in the same case?
Salinger, J.: I do not recall anyone ever asking for more than thirty interrogatories. And I’m not sure why doing so would ever be a good idea.
Krupp, J.: Only if a good reason is shown.
Kazanjian, J.: I suppose I might allow such a motion but only in very rare circumstances.
Squires-Lee, J.: I cannot imagine a good reason for doing so.
(3) Do you generally grant permission to parties to serve in excess of thirty interrogatories? If not, under what circumstances do you grant permission?
Salinger, J. I do not recall anyone ever asking for more than thirty interrogatories. And I’m not sure why doing so would ever be a good idea.
Krupp, J. Only if a good reason is shown.
Squires-Lee, J. I cannot imagine a good reason for doing so.
Barry-Smith, J. I am not inclined to increase interrogatories and doubt additional interrogatories reflects an efficient approach to discovery.
(4) For purposes of the thirty-interrogatory limitation, when do you treat a compound interrogatory as multiple interrogatories?
Salinger, J. Thankfully I have not had to decide this issue. Best practice is not to ask compound interrogatories.
Krupp, J. I have not had to address this issue.
Squires-Lee, J. I generally treat compound questions as more than one interrogatory.
Barry-Smith, J. If the thirty interrogatory limit must be decided in a motion before me, I will treat compound interrogatories as multiple interrogatories.
Electronically Stored Information
(1) Do you require parties to confer regarding a plan addressing discovery of electronically stored information?
Salinger, J. Yes, absolutely. The parties should confer and agree how to make the discovery process work for all concerned. Where the parties are using search terms to find potentially responsive electronic documents or information, the parties will need to plan for in build in an iterative process. Search terms that produce millions of hits are too broad. Those that file to turn up much of anything are too narrow. Working through the mechanics of ESI discovery needs to be a cooperative process.
Krupp, J. Yes.
Squires-Lee, J. Yes.
Barry-Smith, J. Yes. In many cases ESI is the central feature of discovery so lawyers should be discussing and balancing the needs and burdens associated with ESI.
(2) Do you have a standard order or established guidelines for the discovery of electronically stored information and/or for specific aspects of the list set forth in Rule 26(f)(3)? Do you generally include anything in addition to the list set forth in Rule 26(f)(3)?
Salinger, J. I do not have a standard order or guidelines for discovery of electronically stored information. Parties have generally been able to agree upon the standards and parameters that make sense for that case.
Krupp, J. No.
Squires-Lee, J. No. But, like Judge Salinger, I expect the parties to be able to work together in good faith to establish parameters that make sense.
Barry-Smith, J. No standard from the court, although parties and their counsel seem to have arrived a standard approach to setting parameters around ESI discovery.
(3) What do you consider in issuing an order for allocating expenses for discovery of electronically stored information?
Salinger, J. Like Judge Krupp, I have trouble recalling this issue coming before me.
Krupp, J. I have rarely been presented with the issue.
Squires-Lee, J. It depends on the issues in the case, whether the responding party is a named party or not a party to the case, the scope of the electronic discovery sought, and the burden on the responding party.
Barry-Smith, J. In rare cases, allocating costs in part to the requesting party may make sense, typically where discovery of information that appears only marginally relevant will be resource intensive.
Expert Discovery
(1) Do you require plaintiffs to disclose their expert reports before defendants do, or do you require the parties to make the disclosures simultaneously?
Salinger, J. If plaintiffs are the only parties with a burden of proof at trial, I usually require them to make their expert disclosures first, with rebuttal disclosure of defendants’ experts to follow. If there are counterclaims or if for some other reason defendants also have a burden of proof, I usually require simultaneously initial and rebuttal expert disclosures.
Krupp, J. In a case where the parties have equal knowledge of the issues, e.g. a case that turns on contract interpretation, or in cases where both sides are bringing claims, simultaneous initial expert disclosures make sense, followed by simultaneous rebuttal expert disclosures. Otherwise, plaintiff will ordinarily make its expert disclosure first followed by defendant’s disclosures.
Squires-Lee, J. Same practice as my colleagues. Generally, staggered expert disclosure makes sense. Sometimes, it does not.
Barry-Smith, J. I follow the same approach as Judge Krupp. The parties should be explicit about timing of expert disclosures when the initial schedule is established.
(2) How detailed do you require expert disclosures to be?
Salinger, J. Detailed enough to give the opposing parties fair notice of the subject matter on which any expert is expected to testify at trial, the substance of their expected opinions and other testimony, the grounds for each of the expert’s opinions, and the nature and basis for the witness’s expertise. There should be no surprises about the scope of an expert’s testimony.
Krupp, J. Expert disclosures should describe in detail the expert’s qualifications, opinions and bases for those opinions. Any party calling an expert must understand that opinions and the bases for those opinions that are not fairly disclosed in the expert disclosures, including the expert’s report(s), are likely to be excluded at trial.
Squires-Lee, J. I agree with all of my colleagues. Trial is never by ambush, and the disclosures must be sufficient to provide a fair opportunity to understand the nature and basis of the opinion and prepare for cross-examination.
Barry-Smith, J. I follow the same approach described by Judge Salinger and Judge Krupp.
(3) Do you usually permit expert depositions? What are your considerations in determining whether an expert may be deposed?
Salinger, J. Parties usually reach agreement as to whether they want to depose expert witnesses. If there is a dispute, the party seeking to depose an expert must show that doing so is needed to obtain information to cross-examine the expert and will likely streamline the presentation of the case at trial.
Krupp, J. The parties can, and often do, agree to expert depositions. Obviously, a potentially unavailable expert may be deposed to preserve the expert’s testimony at trial. Expert depositions are also useful if the expert disclosures are ambiguous or not comprehensive, to mitigate prejudice if the expert is disclosed late, where the proposed expert testimony is novel, if there is a meaningful challenge to an expert’s qualifications, or when a deposition may help to resolve the case.
Squires-Lee, J. My hope is that the parties can reach agreement about whether expert depositions would be warranted either to clarify issues or preserve testimony. I am not opposed to ordering expert depositions if it would serve to narrow or expedite issues.
Barry-Smith, J. If the parties agree to expert depositions, I will not interrupt that agreement. In the absence of agreement, I usually will not order expert depositions, though I will consider the request if backed by meaningful reasons.
Discovery Disputes
(1) Do you ordinarily hold hearings on discovery motions? If so, under what circumstances do you decide discovery motions without a hearing? If not, under what circumstances do you hold a hearing?
Salinger, J. Yes, I usually hold a hearing on discovery motions. But sometimes the issues are clear enough on the papers that a hearing does not seem useful.
Krupp, J. About half the time I hold hearings on discovery motions. I am more likely to hold a hearing where there are multiple issues, the issues appear particularly complex, where I perceive that the parties have not adequately conferred about the issue, or where it appears the lawyers’ relationship is interfering with their ability to resolve the discovery dispute.
Squires-Lee, J. I will hold a hearing if I need information from counsel not provided in the papers. If I can rule on a discovery motion on the papers, I will do so.
Barry-Smith, J. I typically hold a hearing on discovery motions unless the issues presented in the papers are straightforward and I do not perceive a benefit from a hearing.
(2) Do you permit parties to request an expedited decision or hearing on a discovery dispute without the need for motion practice and, if so, how?
Salinger, J. If the parties have diligently conferred, and narrowed a discovery dispute to a simple question that they are confident I can resolve without formal motion practice, they should explain the issue in a short (2– to 3–page) joint letter that explains each party’s position and asks for a conference to discuss the issue with me. I’m happy to have those kinds of discussions. If it turns out that I need more information, we can always turn to more formal motion practice.
Krupp, J. Yes. In appropriate cases, at the initial Rule 16 conference I have begun to schedule a status conference 30-60 days before the end of discovery – and more frequently if the parties believe it necessary – to address the status of discovery. The purpose of these conferences is to hear the parties on any discovery disputes that the parties have been unable to resolve after good faith discussions under Superior Court Rule 9C, which disputes are framed for the court in brief letters submitted shortly before the conference. Often, I am able to resolve the dispute or give the parties enough of my thinking about the dispute to permit them to resolve it. This process does not prevent the parties from filing more formal discovery motions under Superior Court Rule 9A, but it provides a streamlined option for addressing most discovery matters.
Squires-Lee, J. I have followed the practice described by Judge Salinger and it works well.
Barry-Smith, J. I follow the same approach as Judge Krupp.
(3) Under what circumstances, if any, have you imposed, or are you likely to impose, sanctions in discovery disputes? What form have these sanctions taken?
Salinger, J. Routine disputes about the scope of discovery do not justify a request for sanctions. But I have sanctioned parties for deliberate destruction or attempted destruction of relevant evidence. For example, I dismissed the counterclaims of a defendant that intentionally destroyed important financial records, and ordered a different party that tried to delete electronic files after litigation began to pay all costs incurred to the files.
Krupp, J. Sanctions are appropriate for failure to abide by a prior court order, or for conduct during discovery for which there is no good faith basis (e.g. interposing obstacles to discovery of clearly discoverable evidence; behavior that disrupts a deposition; failing to prepare a Rule 30(b)(6) witness so that the Rule 30(b)(6) deposition is a waste of time, etc.). Sanctions most often include the attorneys’ fees and costs of the injured party, but I have also dismissed cases, and substantially curtailed arguments that could be advanced at trial, as sanctions in appropriate situations.
Squires-Lee, J. I will impose sanctions for deliberate discovery abuses including, without limitation, (i) failing to comply with a court order, (ii) inappropriate, uncivil, and unprofessional behavior at a deposition that interferes with the pursuit of discoverable information (such as repetitive, lengthy, speaking objections and / or conferring with a witness on answers to questions), (iii) intentional obfuscation of discoverable material short of spoliation, (iv) failing to prepare a Rule 30(b)(6) deponent, and (iv) any other conduct intended to impede the administration of justice.
Barry-Smith, J. Most discovery disputes will not justify sanctions and lawyers should be careful to bring a sanctions motion only in egregious circumstances, where the opposing party has failed to comply with basic discovery obligations, after being provided several opportunities.
(4) What level of detail do you require or prefer for parties’ statements pursuant to Superior Court Rule 30A(3)(c) regarding the scope of the search for responsive documents? Are there occasions in which you have ordered a party to serve a revised statement?
Salinger, J. Parties need to document all the physical and electronic locations where responsive documents might be found, and either certify that they have all been searched or explaining which have not been searched and why. Parties can usually resolve disputes over the adequacy of a Rule 30A(3)(c) statement.
Krupp, J. I have rarely been presented with the issue.
Squires-Lee, J. It depends on the case, but the intent of the rule is to require a description that enables the other side to understand fully the scope of the search conducted. I remain shocked that many litigants do not describe the scope of the search to be conducted in their initial Rule 34 responses. Many discovery motions could be avoided with full compliance with Superior Court Rule 30A.
Barry-Smith, J. It depends on the complexity of the production. The responding party should provide enough detail and specificity for opposing counsel to evaluate whether the responding party has adequately complied with its obligations.
(5) How do you address emergency calls during depositions? How do you prefer parties to handle disputes that arise during a deposition?
Salinger, J. This should be a rare occurrence. And, in my experience, it has been. Parties need to work cooperatively to resolve disputes about the scope and conduct of a deposition, ideally well before the deposition. If court assistance is needed to get a deposition completed, the parties should finish what they can, suspend the deposition, and then serve and file an appropriate motion or request a court conference. An emergency call to the court in the middle of a deposition would be appropriate only if it would not be possible to suspend the deposition and restart it after a court ruling.
Krupp, J. I have rarely been presented with the issue. In almost all instances, the deposition can be halted, a transcript prepared, and the issue presented to the court by motion under Superior Court Rule 9A. If a party believes an emergency call to the court is necessary, they may contact the session clerk to schedule an emergency hearing.
Squires-Lee, J. I agree this is and should be very rare. In most circumstances, including bad faith conduct, the aggrieved party should make the record clear, finish the deposition if possible or suspend the deposition if not, and file a motion under 9A. An emergency call to the clerk would be appropriate only in rare circumstances, such as the trial deposition of an elderly or ill witness.
Barry-Smith, J. This should be a very rare occurrence. The parties should be able to work cooperatively to resolve disputes during depositions, and preserve those issues that may require judicial intervention. Attorneys are advised against suspending a deposition entirely due to a disagreement; it is almost always better to continue with the questioning while preserving a dispute as necessary. If there is an emergency, the parties should contact the clerk to see if a judge is available.
(6) How do you view the obligation to supplement discovery responses, and what recourse should a party pursue for failure to supplement.
Salinger, J. The duty to supplement is real. If a party fails to do so, I would not let them introduce supplemental evidence that they failed to produce, if the opposing party can demonstrate that it would be unfairly prejudiced as a result.
Krupp, J. The obligation to supplement is quite important. Failure to supplement may result in sanctions, including exclusion of evidence, if presented on proper motion. The failure to supplement, if the existence of the evidence is known or reasonably should be known to a litigant or counsel, is akin to concealing evidence.
Squires-Lee, J. I agree with my colleagues regarding the importance of the duty to supplement and I would consider all proposed measures to cure any prejudice from failure to do so.
Barry-Smith, J. The duty to supplement discovery responses should be taken seriously. Parties should supplement their prior responses in a timely fashion when new or different information surfaces; it does not suffice to wait until the close of discovery and supplement once at that time. Available recourse depends on the circumstances, and is difficult to predict.
| Date published: | April 1, 2022 |
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| Last updated: | January 13, 2026 |