On January 1, 2005, 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 their development by the Federal Court Advisory Committee and an opportunity for any interested person to comment upon the court’s draft proposals. The amendments to the Local Rules are minor and should not cause any significant alterations of your practice, although at least one will make notification of court filings and action easier within your firm. 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.

Allowing Notice to Multiple Attorneys for a Party in ECF Cases

One of the amendments to the Local Rules should assist you in feeling secure that all of your firm’s attorneys involved in the representation of a client in a federal suit are receiving accurate and timely notification of court filings and rulings in cases that are designated for Electronic Case Filing. Local Rule 83.6(a)(1)(B) has long provided that the clerk’s office would only enter the name of one attorney from a firm on the docket and that this attorney would be the one "to whom all mailings shall be forwarded." This single attorney rule can cause difficulty when a party is represented by multiple attorneys in the same law firm because all attorneys who need to know about activity in court may not receive timely notice.

With the advent of electronic case filing, the burden on the clerk’s office associated with multiple mailings for one party has been lifted. Therefore, as of January 1, 2005, in ECF cases, the court permits all appearing attorneys for a party to be entered on the docket and to receive notification of filings, rulings, and docket entries. This way, all members of a trial team can receive ECF notification, so long as they have entered appearances in a case.

Provision for Responses to Objections to a Magistrate Judge Order

Pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Local Rule 72.1, the U.S. Magistrate Judge has authority to issue decisions on non-dispositive matters in pending cases. Federal Rule of Civil Procedure 72(a) provides that parties objecting to such a decision must file that objection within ten (10) days of the U.S. Magistrate Judge’s order and the district court may reconsider the order under a "clearly erroneous or contrary to law" standard pursuant to 28 U.S.C. § 636(b)(1)(A).

With this year’s amendment to Local Rule 72.1, the court has provided an answer to questions that have long perplexed counsel: Do I have an opportunity to respond to the objection to a non-dispositive Magistrate Judge order and, if so, when do I file that response? Although Federal Rule of Civil Procedure 72(b) sets forth the right to, and timing of, such a response with regard to dispositive matters that are the subject of a Report and Recommendation of the U.S. Magistrate Judge, the national rules are silent regarding non-dispositive orders.

As of January 1, 2005, Local Rule 72.1 clarifies the matter. It specifically provides parties with the opportunity to respond to an objection to a U.S. Magistrate Judge order on a non-dispositive matter. Moreover, it provides that any such response must be filed within ten (10) days after service by the opposing party of an objection to an order. Fed.R.Civ.P. 6(a) and Local Rule 6.1 govern the calculation of the actual deadline for filing the response. A parallel amendment to Local Criminal Rule 1.1(d) makes clear that this amendment, as well as Local Rule 72.1 in its entirety, also applies to criminal cases.

Change in Answer Date for Social Security Cases

One change of a long-standing practice in this district concerns the date by which Social Security disability appeals must be answered by the United States. For many years, this district has had Local Rule 9.1, which provided the United States, in Social Security cases, with 90 days, rather than the usual 60 days, set forth in Federal Rule of Civil Procedure 12(a)(3), in which to answer or move to dismiss. The court has now amended Local Rule 9.1 to bring it into conformity with the national rule. Therefore, after January 1, 2005, the United States is required to respond to a Social Security case within 60 days of being served with the complaint and summons.

Assessment of Juror Costs

In an effort to decrease potential last-minute disruption for jurors by enabling the clerk’s office to make timely calls to jurors, the court has amended Local Rule 54.2. That Local Rule authorizes the assessment of the costs of jury attendance if a case is settled after the jury is summoned. For many years, Local Rule 54.2 has provided that the jury is considered summoned as of 3:00 p.m. the business day before the trial date. However, this late afternoon deadline caused some difficulties for jurors in arranging coverage at their places of work, or at home, to permit them to appear in court the next morning. Therefore, the court has moved back the deadline by three (3) hours, amending Local Rule 54.2 to provide that a jury is considered summoned as of 12:00 p.m. the business day before the trial date.

Disclosure of Presentence Investigation Report

Local Criminal Rule 32.1(d) has always provided that the probation office would disclose a defendant’s initial Presentence Investigation Report ("PSR") to "the government and the defendant" at least thirty-five (35) days prior to sentencing. It could be argued that this Local Rule did not comply to Federal Rule of Criminal Procedure 32(e)(2) because it did not explicitly require disclosure of the initial draft of the PSR to the defendant, as well as to counsel. Therefore, the court has amended LCrR 32.1(d) to bring it largely into conformity with Fed.R.Crim.P. 32(e)(2).

As of January 1, 2005, Local Criminal Rule 32.1(d) specifically provides that the probation office shall provide one copy of the initial PSR to the prosecutor and two copies to counsel for the defendant. Once the defense counsel has those two copies, that counsel "shall ensure that the defendant has timely reviewed and understands the initial presentence report as well as all revisions and addenda." LCrR 32.1(d) (2005).

This amendment, which largely conforms to existing practice in the district, leaves it to defense counsel to determine whether to mail PSR drafts and revisions to a particular defendant, or to hand or show them directly to the client. Sending PSRs directly to defendants who are in jail or at other locations where third parties might see them could potentially jeopardize confidentiality or the well-being of cooperating defendants, victims, or others whose names appear in the PSRs. Therefore, the revised Local Rule specifically requires that defendants be made fully aware of the contents of the PSR, but leaves it to defense counsel to determine the manner in which that notification occurs, in recognition of that counsel’s greater understanding of the risks and benefits in the particular case.

Clarification Regarding Readmission After Resigning or Taking Inactive Status

A long-standing problem for the clerk’s office developed when attorneys admitted to the Bar of the U.S. District Court took inactive status or resigned, and then sought to reactivate their membership in the court’s bar. The clerk’s office annually received a number of calls from attorneys confused about what they should do to regain active status after either being inactive for a short period of time or having resigned from the court’s bar.

To clarify, the court added Local Rule 83.2(d), which specifically requires such attorneys to reapply for active membership in the district court’s bar in accordance with the provisions of subsections (a) and (b) of Local Rule 83.2. Those subsections set forth the eligibility requirements for membership in the federal bar, including the fact that you must be an active member in good standing of the New Hampshire State Bar, and the procedure for admission.

Gretchen L. Witt is Chief of the Civil Division of the US Attorney’s Office for the District of New Hampshire. She is a member of the district’s Federal Court Advisory Committee. Witt also is an at-large member of the NHBA Board of Governors.

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