On January 1, 2006, 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, or a copy may be purchased from the court.

The 2006 amendments are fairly minor, but important.  In one instance, the amendment to Rule 16.2 has the effect of significantly lessening the burden in preparing final pretrial statements.  In another, the amendment to Rule 7.1 clarifies an issue that has caused more than one attorney frustration when the court acted prior to receiving the attorney’s reply to a motion objection.  Overall, the effect of the changes should prove beneficial to practitioners in federal court.

Rule 16.2:  Final Pretrial Statements

Elimination of Stipulated Facts and Law

Perhaps the most significant change to the Local Rules is the elimination of the former subsections (a)(2) and (a)(3) of Rule 16.2, which controls the content of final pretrial submissions.  Previously, Local Rule 16.2(a)(2) required the parties to set forth a stipulation of undisputed and disputed facts, and Local Rule 16.2(a)(3) required the parties to do the same for the applicable law.  These rule provisions have often proved time consuming and vexing to counsel in that, if followed in the manner intended, hammering out acceptable undisputed facts and law required significant consultation with opposing counsel at a point in the litigation when time is precious.  Moreover, the likelihood of obtaining such an agreement was low, thus increasing the potential for the effort to be a waste of time.  The reality was that most parties simply laid out their view of the facts and stated that they would agree to the facts as stated, despite the fact that it was virtually guaranteed that the opposing party would never agree to that statement.  Similarly, it seemed that submission of proposed jury instructions accomplished much the same purpose of identifying the applicable law, as did the written stipulation of applicable law in the pretrial statement. 

Given that the statements did not seem to have significant utility for the court, the Advisory Committee recommended that the court eliminate the requirement.  The court has done so, thereby simplifying the information that must be contained in the body of a party’s final pretrial statement.  As a result, a party’s final pretrial statement need only contain an agreed brief statement of the case, the names of the expected and potential witnesses, any waiver of defenses and claims, a list of depositions which may be read into evidence, a list of expected and potential exhibits, special damages, offer and demand, a statement of a claim for attorney’s fees, request for a view, and the estimated length of the trial.  Thus, the pretrial statement itself has been shortened and simplified, although the required additional filings, such as jury instructions and motions in limine, remain intact.

Deadlines for Page/Line Designation for Depositions Read at Trial

The court also amended subsection (a)(4) of Rule 16.2, which requires the parties to identify the depositions that may be read into evidence.  Clarifying an issue that has caused confusion in the past, the court established deadlines by which the party offering the deposition must identify the page and line designations (10 days prior to trial), the opposing party must make its counter-designations (5 days prior to trial), and all parties must file objections to the designations (2 days prior to trial).  Thus, rather than having to grapple with such designations and objections in the midst of trial, counsel now can identify and put any conflict before the court prior to trial

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Rule 53.1, Alternative Dispute Resolution

To improve the value of its mediation program to parties, the court amended Rule 53.1 to allow the parties to select their mediator from the court’s complete mediation panel list and to allow the market to control the selection process by having the mediators set an hourly rate for the mediation services.  Previously, under the Mediation Program Guidelines, when the parties informed the court that they were interested in mediation, the court identified a group of five lawyers from the mediation panel maintained by the court, required the parties to select one of those five mediators, and limited the mediator’s compensation to a maximum of $175.00 per hour.  After consulting with federal civil practitioners and court mediators, the court learned that the most desirable feature of any mediation program the court could offer was the freedom to choose the mediator at market rate.  Now, under the court’s mediation program, within 48 hours of selecting court-annexed mediation, the parties may themselves select 5 possible mediators, in “descending order of preference,” from the court’s approved list of mediators.  The court also eliminated any ceiling on mediator fees, leaving it up to the market to decide what parties would be willing to pay.  To accommodate this new method of selecting a mediator, the court has posted, on its web site, the complete list of court-approved mediators, including a curriculum vitae (if provided), a list of their legal areas of concentration and fee for mediation services.

Rule 7.1 - Motions

Separate Motions and Objections Are Required

The court also adopted several changes to its general motions rule.  First, the court amended Rule 7.1(a)(1) to minimize an ongoing problem of parties filing motions seeking multiple and unrelated relief in a single document.  Although the rules of the court have long required separate motions, parties often ignore the rule, or combine an objection and cross-motion in a single document.  The advent of electronic filing, where documents are linked together in the electronic docket, has made this practice problematic. 

Therefore, the court has clarified that parties are not to combine motions that seek “separate and distinct relief” into a single motion, and are not to combine motions and objections into a single filing.  Thus, for example, when a party is objecting to a summary judgment motion and cross-moves at the same time, the party should file an objection, and a cross-motion.  Note that the parties may file a single memorandum in support of both, but pursuant to Administrative Procedure 2.3(e), the memorandum must be electronically filed as a separate document and linked to both the objection and cross motion.

Immediate Notice Required on Replies and Surreplies

Second, the court also clarified how parties are to handle requests for leave to file a reply on a non-dispositive motion, or a motion for leave to file a surreply.  Frequently, attorneys intend to move for leave to file a reply, but wait to file that motion until the reply is complete and they can concurrently file both the motion and the reply.  However, unless the court has notice that such a motion is contemplated, once the objection is filed, the motion is considered ripe for decision and is sent to chambers.  Some counsel have experienced the frustration of having prepared a reply, with a motion for leave to file it, only to have the court act on the motion before the reply and motion for leave have been filed. 

To prevent such occurrences, the court amended Rule 7.l(e)(2) to require counsel to give the court notice that the party intends to file a motion for leave to reply to a nondispositive motion.  Like the notice for replies on dispositive motions, counsel must now inform the court, by electronic filing or telephone call, of that intent within 3 days of service of the objection to the motion.  Similarly, amended Rule 7.1(e)(3) requires such notice of intent to seek leave to file a surreply within 3 days of service of the reply to which it would respond. 

Rule 7.2 - Specified Motions

The court has amended subsection (e) of Rule 7.2, which addresses motions for reconsideration, by setting forth the standard for reconsideration within the body of the rule.  Rather than requiring counsel to proceed with the research necessary to discover what is a well-established standard, the court has set it forth in the rule.  Therefore, simply by reference to the rule, counsel will understand they must demonstrate that “the order was based on a manifest error of fact or law” for a motion for reconsideration to succeed.  Parties still must file such a motion within 10 days of the order sought to be reconsidered, but now the Rule sets forth the standard for potentially escaping that deadline – the party may file after 10 days, but must demonstrate cause for doing so.  The rule specifically states that such cause may include “newly available material evidence” or “an intervening change in the governing legal standard.”

Rule 81.1 - Removal Actions

The court amended Rule 81.1 to solve a problem that occurs occasionally, but with some regularity, in multi-defendant cases.  Previously, Rule 81.1 was amended to provide that defendants had 20 days from the date of the filing of the notice of removal to answer or object.  This amendment was designed to extend the period of time provided under Fed.R.Civ.P. 81© and, in some instances, also to provide clarity as to the required date for an answer or objection.  However, in some multi-defendant cases, some defendants may not have been served by the time another defendant removes the action and, under the former rule, would be required to file an answer sooner than would be required under the Federal Rules of Civil Procedure.  Therefore, Rule 81.1 now provides, where a defendant is served after removal, that defendant’s answer is due within the time frame established by Federal Rule of Civil Procedure 81©, i.e., “within 20 days after the service of summons upon such initial pleading, then filed, or within five days after the filing of the petition for removal, whichever period is longest.”

Rule 83.14 - Courtroom Technology

Too frequently of late, counsel arrive in court on the first day of trial, expecting to use the courtroom technology, only to discover that their own technology does not mesh with the court’s technology or that they do not know how to operate the court’s systems.  Not surprisingly, this has resulted in panic, requiring the court to redirect its staff to assist the lawyers quickly to avoid delays in starting the trial.  Therefore, by adopting new Rule 83.14, the court has served notice on practitioners as to its expectations if counsel want to use the court’s technology.  Under this rule, if counsel expect to use court technology, they need to know how to use it and they need to acquire that knowledge well in advance of trial.  The Rule specifies the actions that the court expects counsel to take in becoming familiar with court technology, including a deadline for seeking training no later than 5 days prior to the hearing or trial at which use of technology is desired.

Other Civil Rule Amendments

The rule changes include a variety of additional amendments that are not as significant.  Among them is the amendment of Rule 4.4, Payment of Fees, to clarify that, for a party who seeks in forma pauperis status, the complaint will be deemed filed on the court’s docket on the date the motion for leave to proceed in forma pauperis is filed, rather than when granted.  Additionally, Rule 8.1, Redaction of Personal Identifiers in Filings, now specifically excludes Social Security and civil asset forfeiture cases from the reach of the Rule.  This did not constitute a change in practice, but simply put into rule form the exclusion that already existed by administrative order.

The court amended Rule 5.1, Format and Service of Filings, to eliminate the requirement that when parties file exhibits or attachments that exceeded 50 pages, they  bind those attachments in some permanent fashion.  Now, parties simply need to staple or “otherwise attach[]” those documents.  Finally, for individuals seeking to become members of the bar of the federal court, Rule 83.1 was amended to clarify that submission of an application for admission constitutes consent to have the U.S. Attorney’s Office conduct a criminal background check.

Criminal Rule Regarding Premarking

It would be easy to overlook the one change to the Local Criminal Rules, much as the prior rule was largely overlooked in practice.  The practice of exchanging exhibits in criminal cases has always been different from that in civil practice, despite the fact that prior to this amendment, it was supposed to be the same.  Recognizing the distinction between the two practice areas, the court amended Local Criminal Rule 1.1(d), Scope, to clarify that Rule 83.13(a), which required submission of premarked exhibits to the clerk “[n]o later than one week” before trial, does not apply to criminal cases.  Instead, pursuant to amended Local Criminal Rule 16.1(f), parties in criminal cases are to submit exhibits, and exchange them with “each other” “at least one day before the start of evidence.”  Moreover, like civil cases, the court clarified that exhibits intended “solely for impeachment” need not be listed on the exhibit list or exchanged.

Gretchen Witt is the Chief of the Civil Division at the United States Attorney’s Office for the District of New Hampshire and the Chair of the Local Rules Subcommittee of the Federal Court Advisory Committee.  Any views expressed in this article are those of the author, and not of the United States Attorney’s Office or the U.S. Department of Justice.

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