ON JAN. 1, 2001, amendments to the Local Rules of the U.S. District Court in the District of New Hampshire will take effect. These rule changes were adopted by the court following development by the Federal Court Advisory Committee and an opportunity for any interested person to comment upon the proposals. These rule amendments are in addition to the amendments to the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure that took effect on Dec. 1, 2000, and must be set in the context of those national rule amendments. A copy of the complete set of the U.S. District Court's Local Rules may be downloaded from the Local Rules page on the court's Web site.

For the most part, the rule changes are minor, but nonetheless should have an overall beneficial effect on practice in this district. The changes include new rules, elimination of some rules and amendments that reflect both the evolving practice in U.S. District Court and the recent amendments to the various Federal Rules of Procedure.

A. Standardized Citation Forms: New Rule 5.3

In recognition of the increasing use of the court's opinions now available on its Web site, the court has added Rule 5.3, which delineates the method for citing to opinions issued by the court. As of Jan. 1, 2000, the court began providing identification numbers for opinions issued subsequent to that date and available on its Web site. This identification number consists of the four-digit year, the letters DNH and a three-digit opinion number, e.g., 2000 DNH 001. Use of that number, along with the case name, will be the required citation form for decisions that are not reported in the official reporters, such as the Federal Supplement, the Federal Rules Service or the Federal Rules Decisions. Counsel are to refer to the page numbers as they are reflected in the Portable Document Format (PDF) version of the opinion. Thus, a citation to a hypothetical Jan. 1, 2001, unreported decision in Doe v. Smith would be as follows: Doe v. Smith, 2001 DNH 001.

If an opinion is reported, either the official reporter citation or, if the opinion was issued after Jan. 1, 2000, the court's identification number for the opinion may be used when citing to the decision. If the opinion does not have an identification number, Rule 5.3 will require following the Blue Book.

By the amendments to Rule 7.1 and Rule 7.2, the court has addressed an issue that has proved problematic for many years - the question of timely reply memoranda or motions to strike material in support of a motion or objection. Until now, filing a reply has required prior approval of the court, which in turn required assent to the motion by opposing counsel. As many of us have experienced, that assent was often dependent upon the requesting party's further agreement to the filing of a surreply memorandum by the opposing party. Moreover, none of this motion practice was subject to any time constraint or page limitation in the rules. As a result, briefing schedules, as well as reply (and surreply) memoranda, have become increasingly lengthy. Occasionally, reply memoranda, or motions to strike material offered in support or in objection to a pending motion, are filed even as opinions on the underlying motion are essentially ready to be issued by the court.

To reduce this problem, the amendments to Rules 7.1 and 7.2 establish deadlines and guidelines for the handling of these types of memoranda and motions. The amended rules provide 10 days after the filing of the document to which response is desired, for counsel to act, either by filing a permitted reply or motion to strike material, or by filing a motion for leave to file a reply or surreply. Failure to act within those 10 days risks having the court rule without the benefit of the additional memorandum or motion.

An important highlight of the amendment to Rule 7.1(e)(1) is a new right to file a reply in all situations involving a dispositive motion. However, the reply must be filed within 10 days of the objection to which response is desired. The reply must be limited to 10 pages in length and is restricted to rebuttal of factual and legal arguments raised in the objection. The goal of this liberal reply policy is to provide an opportunity to respond to new arguments, not to rehash opening arguments.

If a reply is desired in a non-dispositive motion, prior leave of the court must be obtained before it may be filed. That motion for leave, under Rule 7.1(e)(2), must be filed within 10 days after the filing of the objection to which response is desired. The rule does not require that the reply be appended to the motion, but a greater chance of having the motion granted may exist if it is attached.

The amendments also clarify that surreply memoranda are strongly discouraged. Under Rule 7.1(e)(3), counsel must seek prior leave of court within 10 days of the reply to which counsel wishes to respond. However, by the language of the rule, motions to file a surreply will only be granted in extraordinary circumstances. Rule 7.1(e)(3) does not elaborate upon the type of circumstances that might qualify as sufficiently extraordinary to warrant filing of a surreply.

Since 1996, Local Rule 7.3 has provided that stipulations, other than for settlement, shall only be binding if made in court, at a deposition or if signed by all counsel or parties and filed in court. The long-understood purpose of LR 7.3 was to avoid court involvement in disputes about verbal agreements between counsel on discovery and other matters.

However, the recent amendments to the Federal Rules of Civil Procedures specifically permit parties to enter into stipulations about the applicability of initial disclosure requirements in a particular case or about length of depositions. Fed.R.Civ.P. 26(a)(1)(e); Fed.R.Civ.P. 30(d)(2). There was some concern that Local Rule 7.3 could prove a trap for the unwary practitioner if he or she entered into a stipulation on such matters, but failed to obtain signatures of all counsel and file it with the court. Therefore, the court has adopted the Federal Court Advisory Committee's recommendation that LR 7.3 be eliminated, such that stipulations no longer need to be in writing and filed in court to be binding.

In adding Rule 7.4, the court has established deadlines by which to move forward the resolution of habeas corpus petitions. The rule places the burden on the respondent either to identify in writing that an evidentiary hearing is necessary or to file a dispositive motion within 60 days of the answer to the petition.

In August, various members of the Judicial Conference's Advisory Committees on Rules proposed additions to the Federal Rules of Civil and Criminal Procedure. The proposed rules, Rule 7.1 to the Federal Rules of Civil Procedure and Rule 12.4 to the Federal Rules of Criminal Procedure, address the nature of required disclosures to courts of interests held in corporations by parties and victims. Such disclosures are essential for the judges to assess the existence of financial conflicts of interest in cases assigned to them and to recuse promptly when warranted.

In apparent anticipation of the adoption of these national rules, the court has added several new Local Rules, LR 7.5, LR 57.2, and LR 57.3, which substantially track these proposals. The court also has deleted Local Rule 83.6(4), the previously existing corporation disclosure statement provision.

Any party to federal litigation that is a non-government corporate entity is required to file a disclosure statement to enable the identification of potential or actual financial conflicts of interests. See LR 7.5(a). In addition, where a victim of alleged criminal activity is an organization, the government is required to file a statement identifying the victim. LR 57.2. Where the victim organization is also a non-governmental corporation, the government also is required to file a corporate disclosure statement as set forth in Local Rule 57.2. LR 57.3. The required statements may be either on the standard forms prescribed in the rules, see Civil Form 3 or Criminal Form 2, or in a format substantially similar to those forms. Even negative responses to the requested information must be filed.

2. Narrowed definition of the rela- tionships that must be disclosed

The new rules narrow, but clarify, the nature of the relationships that must be disclosed, making it easier for entities to provide accurate and timely disclosures. Any non-governmental corporate party or corporate victim must disclose either the identity of all its parent companies or that it has no such parent companies. A parent company is a "publicly held corporation that controls the party (directly or through others) or owns 10 percent or more of the party's stock." LR 7.5(a); LR 57.2(a). In addition, the party or victim must disclose any publicly held corporation with which a merger agreement exists. Id.

3. Clear deadlines for the disclosure to occur

For civil matters, the non-governmental corporate party must file the disclosure statement at the same time as its first filing with the court, be it a motion, appearance, or request. LR 7.5(b). When the case is a removal action, the deadline for the disclosure statement is either 20 days from the date the notice of removal is filed or at the same time as the party's first filing with the court, whichever is sooner. Id.

A criminal defendant that is required to file a disclosure statement must do so at the time of arraignment. LR 57.2(b). If an organization is a victim of alleged criminal activity, the government is required to file a statement identifying the victim at the time of indictment, or as soon as practicable once the government becomes aware that the victim is an organization. Id.

Individuals With Disabilities Education Act (IDEA) cases are subject to a detailed Local Rule, Rule 9.3, that delineates the procedures by which such cases are handled. Now that the rule has been in operation for a number of years, the need to tighten these procedures has become evident to both the practitioners in IDEA cases and the court. As a result, the court has adopted amendments that will establish new deadlines and eliminate some of the confusion that has appeared in practice.

Under the current and amended rule, the plaintiff must file the administrative record 30 days after the complaint is filed. LR 9.3(b). However, occasionally the administrative record is not complete by that date, often because a portion of a hearing has not been transcribed. To ensure the continued forward movement of the case, the plaintiff will now be required to order the transcript within 10 days of the filing of the administrative record. Id.

Under the prior rule, when the plaintiff considered the record complete, the plaintiff served defendant with the certificate of completion and, if the defendant agreed that the record was complete, the defendant then filed the certificate. Under the amended rule, however, if the defendant believes that the record needs to be supplemented, defendant must file a notice of intent to supplement with the court. That notice must be filed within 10 days of being served with the plaintiff's proposed certificate. LR 9.3(b). Moreover, the defendant must order the transcript within 10 days of filing the notice of intent to supplement. Id.

To straighten out the previously existing situation in which counsel were, at times, required to request an evidentiary hearing before learning through the answer or the administrative record what facts were in dispute, the court has now set a flexible deadline for requesting an evidentiary hearing. Any party seeking an evidentiary hearing must file a motion, and supporting memorandum, seeking that hearing within 10 days after the answer or certificate of completion is filed, whichever is later. LR 9.3(c). Thus, no party need request a hearing without being aware of the facts in dispute that would warrant such a hearing.

Under the amended rule, the court also has adopted a flexible deadline for the plaintiff to serve defendant with a proposed joint statement of material facts. LR 9.3(d). The plaintiff must serve that proposed statement 30 days after the answer or certificate of completion, whichever is later. Id. No later than 15 days after that service, defendant must inform plaintiff of any proposed additions or deletions to the proposed statement. Id. Fifteen days after receipt of those additions or deletions, plaintiff must file with the court the joint statement containing all agreed-upon facts and citations to the record. Fifteen days after that filing of the agreed-upon statement, all parties must individually file with the court a statement of any disputed facts, if any, including any record citations. Id.

Pursuant to amended Local Rule 9.3(e), each party will have an opportunity to file a reply to the Decision Memorandum of the opposing party 10 days after that Decision Memorandum is filed. The reply will be limited to 10 pages in length.

When the Federal Rules of Civil Procedure were amended in 1993 to include initial disclosure, detailed expert disclosures and discovery planning, this district adopted, first, the District's Biden Plan, and then Local Rule 26.1. As originally adopted, LR 26.1 provided a detailed description of the portions of Fed.R.Civ.P. 26 from which this district had opted out, as well as the court's expectations of counsel in the course of discovery planning and the filing of the discovery plan required by Fed.R.Civ.P. 26(f).

With the 2000 Amendments to Fed.R.Civ.P. 26, much of the detail in LR 26.1 became obsolete. In the interest of national uniformity of practice, districts may no longer opt out of most of the requirements set forth in Fed.R.Civ.P. 26. Therefore, Fed.R.Civ.P. 26 Rule took on controlling force when addressing discovery planning, discovery practices and the preliminary pretrial conference, and local rules, such as LR 26.1, became either redundant or contradictory to the national rule. Therefore, the court has deleted the previous version of LR 26.1 in its entirety. Instead, the court has simply required that the Federal Rule 26(f) discovery plan shall substantially conform to the Sample Discovery Plan, Civil Form 2 in the Local Rules. LR 26.1.

In addition, the court has amended Local Rule 16.1(b) to detail the expectations for the preliminary pretrial conference following the submission of the discovery plan under Federal Rule 26(f). Perhaps the most significant change is that parties and counsel must come to the conference prepared to discuss an actual trial date. LR 16.1(b). The court is willing to work with counsel to establish a firm trial date at the pretrial conference so that counsel and parties may have as much advance calendar notice as possible.

A significant concern of many practitioners has been Federal Rule 26's new elimination of the court's discretion to avoid the more burdensome aspects of the discovery rules through the adoption of local rules or standing orders. Although Federal Rule 26(a)(1)(E), for example, does require every district to participate in initial disclosures, that rule and others still permit parties in individual cases to stipulate that such disclosures or certain other discovery limitations are unwarranted. Id.; see also Fed.R.Civ.P. 26(b)(2). As amended, by requiring the need to be prepared to discuss such stipulations or proposed changes to the discovery requirements in their particular case at the preliminary pretrial conference, LR 16.1(b) serves to remind counsel that they can "opt-out" on a case-by-case basis. Id.

Because of the strong preference for uniformity contained in the 2000 Amendments to the Federal Rules, the deadlines for filing final pretrial statements, and objections to the documents that must be filed with those final pretrial statements set in Local Rule 16.2(b), have been amended to match those set forth in Federal Rule 26(a)(3). Thus, no longer will final pretrial statements be due 10 days prior to the final pretrial conference. Instead, unless the court sets a deadline, which is usually done in the trial notice, the final pretrial statements are due 30 days prior to the trial date. LR 16.2(a); Fed.R.Civ.P. 26(a)(3).

Under the Local Rules, a variety of documents must be filed along with the final pretrial statement, including proposed jury instructions, proposed findings of fact and conclusions of law, voir dire requests and motions in limine. LR 16.2(b). Previously, objections to these filings, as well as to exhibits listed in the final pretrial statement, were due two days prior to the final pretrial conference. The amendment to LR 16.2(d) changes that deadline to comport with the national rule. Objections must now be filed 14 days after the filing of the final pretrial statement. LR 16.2(d).

For many years, Local Rule 55.1 has required that, following entry of default in an action, the opposing party was to serve the entry of default upon the defaulting party in the same manner as had been used for service of process. LR 55.1. Thus, if the complaint was personally served, entry of default had to be personally served. Because some defaulting parties declined to accept certified mail or avoided personal service, the experience was that this rule could have the effect of increasing litigation costs. Therefore, the court has amended LR 55.1 to provide that entry of default may be served by regular mail at the last known address of the defaulting party.

Under the current Disciplinary Rules promulgated pursuant to LR 83.5, DR-11 states a presumption that attorney discipline records and proceedings are confidential. With the amendment that takes effect on Jan. 1, 2001, the presumption is reversed. Instead, under the rule, all filings, orders and proceedings involving allegations of attorney misconduct are public, except as specifically stated in the rule. LR 83.5, DR-11. The two explicit exceptions to this presumption are outlined in the rule's text. First, the court may order, on its own or following a motion for protective order, that the matters not be public. To protect privacy during the court's consideration of such a motion for protective order, DR-11(a)(1) provides that the motion and any objection to the motion will be filed under seal at Level I until the court rules. Second, until such time as formal disciplinary proceedings against any attorney are initiated pursuant to DR-6(c), any preliminary filings, proceedings, or orders issued pursuant to DR-6 will remain non-public. DR-11(a)(2). An attorney may request that the court make public any non-public information relative to claims or allegations against that attorney. DR-11(b).

Amended Rule 83.11 sets forth detailed and clear policies and instructions for filing documents under seal. LR 83.11(a) establishes the presumption that all filings, orders and docket entries are public, except as specifically stated in the rule. The sole exceptions are: (1) if federal law, state law, the Federal Rules of Civil or Criminal Procedure, or the Local Rules require that such material be sealed; (2) another court or agency has sealed such material; or (3) the court orders that such material be sealed. LR 83.11(a). Parties may not file documents under seal simply by agreement between the parties.

If a party seeks an order from the court sealing material, that party must either move the court prior to filing the material or tender the material with the motion, in which case the motion and material will be provisionally sealed. LR 83.11(c). Counsel must explain the basis for the request, state the anticipated duration of the sealing order, and request that the material be sealed at either Level I or Level II. Id. Level I sealing allows any attorney of record to view the material without prior leave of court, whereas Level II sealing permits only the filer of the material or, if the sealed material is an order, the person to whom the order is directed to view the material without prior leave of court. LR 83.11(b). If the motion is denied, the material will be returned to the movant. LR 83.11(c).

When there is permission, by order, rule or law, to file material under seal, the submitting party shall place the material in a sealed envelope with a copy of the document's cover page affixed to the outside. LR 83.11(d). The envelope is to be clearly and conspicuously marked as containing sealed material. Id.

Subsequent to the publication of the proposed Local Rules, a newly revised judgment form was received by the court. As a result, the court has amended Local Rule 32.2 to include the changes reflected in that new standard form. Thus, In LR 32.2(6), the defendant is to notify the probation officer of any change of residence or employment at least 10 days prior to the change. In LR 32.2(7), in addition to being required to refrain from excessive use of alcohol, the defendant must not "purchase, possess, use, distribute or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician."

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer