ON JAN. 1, 2004, the most recent amendments to the Local Rules of the U.S. District Court for the District of New Hampshire took effect. The court adopted these amendments following development by the Federal Court Advisory Committee and an opportunity for any interested person to comment upon the court’s draft proposals. A complete set of the U.S. District Court’s Local Rules, as well as a summary of the rule changes, may be downloaded from the Rules page on the court’s Web site, www.nhd.uscourts.gov.

Although, overall, the changes to the Local Rules are few and relatively minor, a few are of significance to practitioners. The most important of these changes is the addition of Local Rule 8.1, which puts into effect a privacy rule requiring the redaction of certain personal identifying information from all filed documents. This rule will require practitioners to review and to redact all pleadings containing such information, and will thus require practitioners to develop new review protocols prior to filing.

The other important changes to the Local Rules include the addition of Local Rule 5.1(d), which spells out the information required in counsel’s certificate of service for a filing; the addition of Local Rule 83.13(d), which sets forth the requirements for designating and transmitting exhibits to the U.S. Court of Appeals; and the alteration of the deadline for filing challenges to expert testimony, moving that deadline up to 45 days prior to trial.

New Privacy Rule: Local Rule 8.1

Without a doubt, the most significant change in the Local Rules is the addition of Local Rule 8.1. This Rule derives from the interplay of the September 2001, adoption by the Judicial Conference of the United States of a policy regarding privacy and public access to electronic case files, and the E-Government Act of 2002, which was effective April 16, 2003. In anticipation of all federal courts ultimately moving to electronic case filing, the Judicial Conference recognized the risk of identity theft and other potential privacy invasion by the availability of personal information through the courts’ dockets. Therefore, the Judicial Conference’s privacy policy recommended that "personal data identifiers" be eliminated or partially redacted by filers from all court filings. The Conference further recommended that courts amend their local rules to reflect this policy.

Subsequent to the adoption of that policy, Congress enacted the E-Government Act of 2002. That Act created a right for a person filing a document with redacted privacy information to file an additional unredacted copy of the same document, under seal, with the clerk’s office. In large measure, this Act resulted from the recognition that, in certain instances, the personal data identifiers could be essential to the filing, e.g., credit card information in a credit card fraud indictment, or financial account information in an asset forfeiture proceeding.

The Redaction Requirements of Rule 8.1

Local Rule 8.1 requires that parties and their counsel "refrain from including, or shall partially redact where inclusion is necessary," L.R. 8.1(a), certain specifically delimited information, specifically Social Security numbers, names of minor children, dates of birth, and financial account numbers. Where a Social Security number must be included, only the last four digits of the number may be visible. L.R. 8.1(a)(1). For names of minor children, only initials should be visible. L.R. 8.1(a)(2). All but the year of a date of birth must be obscured. L.R. 8.1(a)(3). Finally, only the last four digits of a financial account number may be visible. L.R. 8.1(a)(4).

Parties and their counsel are required to make these redactions in the document that will be filed with the court. In addition, these redactions must be made in all exhibits to the document that are filed with the court. For example, if medical records are appended to a motion for summary judgment or a motion to compel discovery, parties are required to review every page of those records and redact Social Security numbers, dates of birth and references to minor children before it can be filed with the court. Similarly, if counsel are submitting portions of deposition transcripts, they must be sure to review and redact any information covered by this rule.

Optional Unredacted Version Under Seal

The E-Government Act of 2002 recognized that, in some instances, redaction of such information might open parties to claims that, for example, indictments were invalid or complaints were insufficient. Therefore, that Act mandated that, if a party so desired, in addition to filing the required redacted version of the document, a party could also file an unredacted version under seal. Local Rule 8.1(b) encompasses this provision of the E-Government Act by permitting the filing of an unredacted version of the document by a party simply filing that version with a cover sheet stating "Document filed under seal pursuant to the E-Government Act." L.R. 8.1(b). Alternatively, a party may file, also under seal, a key to the redactions in the public version of the filing, such as a one page document stating: SSN XXX-XX-4219 = SSN 000-00-4219. Such a key would also be filed with the cover sheet identifying that it was filed under seal pursuant to the E-Government Act. Parties filing such unredacted documents or keys would not be required to file a motion seeking to have the document sealed by the court.

Therefore, pursuant to Local Rule 8.1, parties or counsel could file two documents: the required redacted version of a filing, which will be the publicly-available version, and the optional unredacted version or key to the redactions, which will be under seal and only available to the court, parties and counsel in the case. It will be up to counsel or the parties to determine whether or not the optional unredacted version or key is necessary or warranted in each case. The Rule applies in both civil and criminal proceedings. See Local Rule 1.1(d) (as amended Jan. 1, 2004).

Enforcement and Practicalities

The Local Rule specifically provides that the "responsibility for redaction…rests with counsel and the parties." L.R. 8.1(c). The clerk’s office will not review documents to ensure compliance with the rule. Id. However, parties are likely to require adherence of the rule by opponents through objections, motions to strike, or even motions for sanctions. Therefore, although the clerk’s office will not police compliance, counsel and parties should nonetheless strive for full compliance with the Rule and its spirit.

Questions about the full impact of the Rule are bound to arise. One potential question is what version a party should serve on opposing counsel. Until the court moves to electronic filing, counsel should be free to serve either version on the opposing party. Once electronic filing is underway, the redacted or public version will be the one served because service will be accomplished simply by automatic e-mailing of the filed version to opposing counsel.

Potential difficulties can be identified in particular practice areas, such as asset forfeiture, where often a financial account is the defendant and must be identified appropriately; pre-judgment attachments, where the property being attached must be identified and could well be a financial account; or debt collection cases, in which financial information and social security numbers are often essential. Thus, for example, the court must sign an unredacted version of a petition for attachment of property for the order of attachment to be appropriately directed at the right property and to enable the valid attachment of that property. Similarly, legal notice must be unredacted in an asset forfeiture case for that notice to have its intended effect. Moreover, a final order of forfeiture must be unredacted for the U.S. Marshal’s Service to be able to accomplish forfeiture of the right property. These are matters that counsel will have to think through and discuss with the deputy clerks to ensure that the court is appropriately directed to the right version of a document. Undoubtedly, as the court and practitioners engage in the implementation of this rule, particularly once electronic case filing is initiated, issues will arise and require resolution.

Local Rule 5.1(d)’s Required Content for Certificates of Service

Last year, the court added Local Civil Rule 6.1 and Local Criminal Rule 45.1, which brought the calculation of deadlines into compliance with the Federal Rules of Civil Procedure. One of the primary changes associated with those new rules was that deadlines are now calculated based upon whether a document was either filed or served, and also by the manner in which a document was served. Since then, however, the clerk’s office has encountered difficulties in applying the rules for calculating deadlines because the certificates of service on filed documents did not appropriately iden tify who was being served, at what address the opposing party was being served, or the date and manner of service. Therefore, the court has added a new subsection to Local Rule 5.1 to require the inclusion of this necessary information on all certificates of service.

Newly added subsection (d) of Local Rule 5.1 requires that filers include the following information on their certificates of service: the name and address of the party served; the manner of service, i.e., by first-class mail, by hand or otherwise; the date of service; and a signature by a counsel of record or pro se party, not a support staffer. Therefore, as of Jan. 1, 2004, certificates of service that simply state "I hereby certify that I have served opposing counsel with this motion," will not be in compliance with the Local Rules.

Discovery Plan Deadline for Expert Witness Challenges as set forth in Civil Form 2

Because the change is located in a form, rather than a rule, counsel could easily miss a significant change to pretrial deadlines. Civil Form 2, which sets forth a model discovery plan, also contains a variety of deadlines, which must be built into the discovery plan for each case. Of significant importance is that, as of Jan. 1, 2004, Civil Form 2 has a different, and earlier, deadline for filing of challenges to expert testimony.

In the past, the deadline for challenging expert testimony at trial has been set at a time no later than 30 days prior to trial. However, because that later deadline pressed the parties and court in completing the briefing and resolving such challenges prior to trial, the court has pushed back the deadline for filing expert witness challenges at least 45 days prior to trial. As a result, counsel will now be required to file any challenge, under Daubert or otherwise, to expert testimony 45 days prior to trial, i.e., before the filing of final pretrial statements, and must include that earlier date in the discovery plan.

Rule 83.13(d)’s Prescribed Method for Designating Exhibits on Appeal

The district court is required to transmit the record on appeal, which includes exhibits, to the Court of Appeals. Fed.R.App.P. 10(a)(1); Fed.R.App.P. 11(b)(2). The First Circuit does not have a rule specifically describing the manner in which appealing parties should designate and transmit the exhibits from a trial. That fact, along with this court’s practice of returning exhibits to the parties for retention after a trial, has caused some confusion regarding how to submit and transmit exhibits for the appellate record. Therefore, the court has adopted new subsection (d) to Local Rule 83.13, in an effort to comply with its requirement of transmitting exhibits as part of the record on appeal and to help avoid this confusion.

Subsection (d) requires that the parties attempt to designate jointly the exhibits for the appellate record within 10 days after service of the notice of appeal. If the parties are unable to reach agreement, then the appellant shall serve a proposed designation of exhibits on the appellee within 15 days of filing of the notice of appeal. The appellee will then have 10 days after service of that proposed designation to serve a cross-designation, if necessary, upon the appellant.

Where a party or counsel has custody of an exhibit that has been designated as necessary for the appellate record, that party shall promptly send either the exhibit or a true copy of the exhibit to the clerk’s office at the First Circuit, or appropriate Court of Appeals. The exhibit should not be sent to the U.S. District Court. Any exhibits not designated for the record on appeal shall be maintained by the clerk’s office at the U.S. District Court or the party or counsel to which the clerk’s office has authorized retention of the exhibit. If a party so moves or the Court of Appeals directs, the party or counsel will forward the exhibit to the Court of Appeals. Finally, bulky exhibits and physical evidence other than documents will remain in the custody of the party or counsel who produced them. Fed.R.App.P. 11(b)(2). If requested, that party or counsel will permit inspection by another party or the Court of Appeals. Id.; see also Local Rule 83.13(d).

OTHER MISCELLANEOUS RULE CHANGES

The 2004 amended Local Rules contain a few other changes, most of which are not substantial. They include:

New Rule 5.4 on Filing and Service by Electronic Means

The court is rapidly moving toward electronic case management and case filing. In anticipation of the initiation of electronic case filing later this year, the court has adopted Local Rule 5.4, which provides the court with the necessary authority to accept filings that are electronically filed and served. This new Local Rule does not constitute the final word on the manner in which the court will implement electronic case filing. Instead, as the court moves toward electronic case filing later this year, the court will adopt detailed administrative procedures that will set forth the manner in which counsel and parties will file and serve electronic documents. This rule simply gives the court the ability to do so.

Amended Rule 83.1 on Bar Admissions

Subsection (b) of Local Rule 83.1 sets forth the manner in which counsel may obtain admission to the bar of the U.S. District Court. Because of difficulties encountered with counsel being approved for membership, but not timely appearing for a swearing-in ceremony, the court has adopted a sunset date for an approved bar membership application to remain valid. If counsel fail to appear for a swearing-in ceremony within one year of that counsel’s application being approved, counsel will have to re-apply, including payment of a new fee. In addition, the court has clarified the manner in which individuals can seek to invoke the court’s authority to grant special admission under Local Rule 83.1(c). LR 83.1(c) now makes clear that parties must file motions for special admission, not simply prepare and file an application.

Expansion of Local Rule 83.7’s Excepted Electronic Devices

Local Rule 83.7 contains a blanket prohibition against the possession of "any form of equipment or means of photographing, recording (audio or video), broadcasting, transmitting or televising" in the courthouse. LR 83.7(a). However, the rule also permits members of the court’s bar and their agents to possess certain types of various equipment, including cell phones and, as of Jan. 1, 2004, personal digital assistants (PDAs). Counsel need to be aware, however, that they must have the judge’s prior authorization to bring such devices into the courtroom before so doing.

To help assure that a criminal defendant who is entering a plea of guilty without also entering into a plea agreement with the United States fully understands the import of doing so, the court has added new Local Criminal Rule 11.1. That rule requires that, when a defendant enters a plea without an agreement, he or she must submit an executed Acknowledgment and Waiver of Rights on a form approved by the court. That Acknowledgment must be filed on or before the date of the change of plea hearing. Local Cr. Rule 11.1. The expectation is that, execution of the Acknowledgment, combined with the usual Rule 11 colloquy, will help ensure that pleas of guilty are made knowingly, voluntarily and intelligently.

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