(a) Promptly after litigation is commenced, the parties must meet and confer about preservation of any electronically stored information (ESI). In the absence of an agreement, any party may move for an order governing preservation of ESI. Because the parties require a prompt response, the court must make an order governing preservation of ESI as soon as possible.
Rule 25.Discovery of Electronically Stored Information (ESI)
Group V: Discovery · Last amended October 1, 2013 · Last verified July 14, 2026
In one sentenceRule 25 governs discovery of electronically stored information in New Hampshire, requiring an early meet-and-confer on preservation, a litigation hold once relevance is apparent, proportional requests, and a claw-back procedure for inadvertent privilege disclosures.
Full Text of Rule 25
(b) The parties have a duty to preserve all potentially relevant ESI once the party is aware that the information may be relevant to a potential claim. Counsel for the parties have a duty to notify their clients to place a "litigation hold" on all potentially relevant ESI.
(c) Requests for ESI shall be made in proportion to the significance of the issues in dispute. If the request for ESI is considered to be out of proportion to the issues in the dispute, at the request of the responding party, the court may determine the responsibility for the reasonable costs of producing such ESI.
(d) A party may serve on another party a request for designated ESI, including documents, email messages and other electronically recorded messages and communications, photographs, sound recordings, drawings, charts, graphs and other data or data compilations, including back-up and archived copies of ESI - stored in any medium from which information could be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.
(e) The request must describe with reasonable particularity each item or category of items to be produced. The request must also state the form or forms in which ESI is to be produced.
(f) The responding party must respond to each item or category of items or state an objection to the request including the basis of the objection, within 30 days of the receipt of the request.
(g) The responding party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.
(h) The responding party need not produce the same ESI in more than one form.
(i) The responding party does not waive privileged information by its inadvertent disclosure under this rule.
(j) Inadvertently disclosed privileged ESI is subject to "claw-back" at the request of the responding party. If agreement is not reached by opposing counsel or the litigants concerning any "claw-back" requests, the court may decide any disputes.
(k) A party may also serve on another party a request to permit the requesting party and or its representatives to inspect, copy, test or sample the ESI in the responding party's possession or control.
Comment
This rule codifies electronic discovery in New Hampshire. The discovery of electronically stored information (ESI) stands on equal footing with the discovery of paper documents. It is likely that the growth of ESI and the systems for the creating and storing of such information will continue to be dynamic as technology continues to advance. For that reason, this Rule does not seek to precisely define ESI. Self-represented persons are also subject to the duty to preserve such ESI. For a resource to both litigants and judges dealing with the issues of electronically stored information, reference is made to "Navigating the Hazards of E-discovery" published by the Institute of the Advancement of the American Legal System. This Rule is similar to Fed. R. Civ. P. 34 but with some changes.
Amendment History
Adopted May 22, 2013, eff. October 1, 2013.
Plain-English Summary
Rule 25 puts electronically stored information, or ESI, on the same footing as paper discovery while addressing the ways electronic data behaves differently. Once litigation starts, the parties must promptly meet and confer about preserving ESI, and if they cannot agree, either side can ask the court for a preservation order, which the court must issue promptly given how quickly ESI can be lost or altered. Once a party becomes aware that information may be relevant to a potential claim, it has a duty to preserve that ESI, and counsel must instruct clients to place a litigation hold on it.
Requests for ESI must be proportional to the significance of the issues in the case, and if a request looks disproportionate, the court can decide who bears the reasonable cost of producing it. A request must describe the ESI sought with reasonable particularity and state the form or forms requested; the responding party has 30 days to respond or object, must produce the ESI as it is ordinarily kept or organized by category, and does not have to produce the same information in more than one form. Disclosing privileged ESI by accident does not waive the privilege, and Rule 25 lets the responding party demand a claw-back of anything inadvertently produced, with the court resolving any dispute the parties cannot settle themselves. The Official Comment notes the rule deliberately avoids pinning down a precise definition of ESI, since the technology for creating and storing it keeps changing, and that self-represented litigants are subject to the same preservation duties as represented parties.
Frequently Asked Questions
What is a litigation hold, and when does the duty to preserve ESI arise?
Once a party becomes aware that electronically stored information may be relevant to a potential claim, Rule 25(b) requires that party to preserve it, and requires counsel to instruct clients to place a litigation hold on that information.
Does Rule 25 define electronically stored information precisely?
No. The Official Comment explains the rule avoids a precise definition because the technology used to create and store ESI keeps evolving, so a rigid definition would quickly become outdated.
Can the cost of producing ESI be shifted to the requesting party?
Yes, in some cases. Rule 25(c) requires requests to be proportional to the significance of the issues in dispute, and if a request is out of proportion, the responding party can ask the court to determine who bears the reasonable costs of production.
What happens if privileged ESI is disclosed by accident?
Rule 25(i) provides that inadvertent disclosure does not waive the privilege, and Rule 25(j) lets the responding party request a claw-back of the material, with the court deciding any dispute the parties cannot resolve themselves.
Does a party have to produce the same ESI in more than one format?
No. Rule 25(h) states the responding party need not produce the same electronically stored information in more than one form.
Source & verification. Rule text, official Comments, and amendment
history are reproduced verbatim from the New Hampshire Superior Court Civil Rules, adopted
by the New Hampshire Supreme Court. Last verified July 14, 2026.
· Official source
Also known as: esi discovery nhelectronic discovery new hampshirelitigation hold nhclaw-back esi nhe-discovery rule 25