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State v. Superior Court , 116 N.H. 1 ( 1976 )


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  • 116 N.H. 1 (1976)

    STATE OF NEW HAMPSHIRE
    v.
    SUPERIOR COURT AND JUSTICE OF THE PEACE MICHAEL P. HALL

    No. 7409.

    Supreme Court of New Hampshire.

    January 16, 1976.

    *2 Warren B. Rudman, attorney general, Richard W. Wiebusch and W. John Funk, assistant attorneys general (Mr. Wiebusch orally), for the State.

    Stanley M. Brown and Michael P. Hall (Mr. Brown orally) for the defendants.

    MEMORANDUM OPINION

    Petition for a writ of prohibition pursuant to RSA 490:4 (Supp. 1975) seeking to prevent the implementation of the superior court's order allowing the taking of the depositions of the attorney general and one of his assistants. After subpoenas were served on the aforementioned attorneys to appear to give their depositions in connection with a pending antitrust action, they filed a motion in superior court to quash the subpoenas and vacate the notice of taking of deposition. After hearing, the motion was denied by Johnson, J., and their petition was filed here.

    Prohibition is an extraordinary remedy which, although within the discretion of this court, is used with caution and forbearance and only when the right to relief is clear. Hillsborough v. Superior Court, 109 N.H. 333, 334, 251 A.2d 325, 326 (1969); Wyman v. Durkin, 114 N.H. 781, 330 A.2d 772 (1974).

    Although attorneys are not immune from being required to give their depositions in cases in which they are counsel, the existence of the attorney-client privilege and the work product rule make it unlikely that there would be areas of inquiry which would not be protected. Riddle Spring Realty Co. v. State, 107 N.H. 271, 220 A.2d 751 (1966); Hickman v. Taylor, 329 U.S. 495 (1947); United States v. Nobles, 422 U.S. 225 (1975). Although there was no showing in the superior court that other areas of inquiry probably exist in the pending action, after a hearing in this court we cannot say that there are none. Superior Court Rule 41 gives adequate protection during the taking of the depositions against improper areas of inquiry including those protected by the attorney-client privilege and the work product rule. RSA 491: App. R. 41.

    Petition for writ of prohibition denied.

    KENISON, C.J., sat but did not participate in the consideration and decision of this case.