Bar News - February 17, 2012
2011 Amendments to USDC-NH Local Civil/Criminal Rules
By: Bill Glahn and Mark E. Howard
Following the solicitation of suggestions from the Bar and the broader community in the Summer of 2011, and a review of changes suggested by the court, the Local Rules Subcommittee of the United States District court for the District of New Hampshire recommended certain changes for consideration by the court. The court then approved various changes to the Local Rules effective December 1, 2011. This article will briefly describe some of the changes to the Civil and Criminal Rules that will affect practitioners in their daily practice with the court.
For the most part, the amendments to the Local Civil Rules are minor in scope. Those of interest include the following:
Any motion under LR 7 that requests expedited relief must "expressly note" the request for expedited relief in the caption of the motion. This change was designed to alert all parties, and the court, that expedited relief was requested, particularly where the relief sought could be ordered before a response was due. LR 7.1(f) also requires the party requesting expedited relief show good cause why expedited relief is needed in the body of the pleading.
LR 16.2 (Final Pretrial Statements) and LR 83.13 have been revised. Rule 16.2 now requires that at the time of filing of the Final Pretrial Statements, "the parties shall simultaneously exchange between themselves the address and telephone number for each listed witness" rather than including the address and phone number in the statement itself. Rule 83.13 now contains the additional requirement that no later than a week before trial, parties shall "submit …a final witness list that shall include the name and town/city of residence/place of business (as appropriate) for each witness the party expects to present as well as for those witnesses the party may call if the need arises." The amendments were designed to protect confidential information and also to provide the court with an updated list shortly before trial.
A comment was received that many parties attempt to extend summary judgment deadline because the discovery deadline post-dates it. The proposal was to make the deadlines the same in all cases. The Subcommittee recommended, and the court adopted the addition of language to Civil Form 2 (Sample Discovery Plan) making it clear that the fact that the close of discovery post-dates the summary judgment deadline is not an automatic basis for extending the summary judgment deadline.
Appearances and Corporate Disclosure
LR 7.5 has been revised to include LLC plaintiffs in the parties that must file disclosure statements in removed actions. Rule 83.6 has been revised to clarify that while a corporation, unincorporated association, or trust may not appear in any action or proceeding pro se, a trustee who is the sole beneficiary of a trust may represent the trust pro se.
LR 83.2 has been amended to require that as part of the pro hac admission form, a lawyer must provide a statement describing the nature and status of any previously imposed or pending disciplinary matters involving the attorney, and prior felony or misdemeanor criminal convictions and a statement disclosing and explaining any prior denials or revocations of pro hac vice status in any court.
Rule 83.5 DR-2 relating to attorneys admitted to practice before the court who are convicted of crimes must now report that fact to the court by filing a certified copy of the conviction with the court within 21 days of the conviction and must report arrests if the underlying offense includes the use of a firearm or other deadly weapon. Conviction of a "serious crime" as defined in the Rule, or of a reported arrest involving the use of a firearm or other deadly weapon shall result in immediate suspension.
These rather unfortunate rules were accompanied by a happier (if more mundane) one. Attorneys may now bring cell phones, iPads and computers into the court with the restriction that phones shall be silenced and calls may not be taken while in court or a Judge’s chambers (does that really happen?) and telephone calls shall be restricted to conference rooms within the Rudman courthouse.
LR 72.1 has been revised to reflect that the Deputy Clerk Dan Lynch is now a part-time magistrate judge and may hear all matters that Magistrate Judge McCafferty may hear. One major change in the rules is that the court will randomly assign cases to the Magistrate Judge but rather than a presumption that the Magistrate Judge will hear the case absent an objection, Rule 73.1 now provides that the parties must file a consent or declination of consent on a form provided by the clerk in the manner and within the time frame specified in the clerk’s notice.
The court has now adopted Supplemental Rules for Patent Cases. These rules were prepared by a committee of experienced patent practitioners from New Hampshire and other states. They are attached as Appendix B to the Rules.
In order to ensure that all the rules are in one place, the ECF Rules are now contained in Appendix A to the Rules.
With the most recent amendments to the Local Rules of the U.S. District court for the District of New Hampshire, effective December 1, 2011, came a few notable changes to the Local Criminal Rules. Federal criminal practitioners take heed.
Routine Discovery (Expert Witnesses and Reports/Summaries)
The amendment to LCrR 16.1(b)(3) clarifies the limits on the requirement to disclose expert witnesses and reports within the deadlines under LCrR 16(b)(1) and (2) following arraignment. By way of background, Federal Rule of Criminal Procedure 16 identifies certain discoverable materials that must be produced by the government upon request (Fed. R. Crim. P. 16(a)(1)) and by the defendant if certain conditions are met (Fed. R. Crim. P. 16(b)(1)). Among the list of discoverable items are expert witnesses, reports and examinations. Fed. R. Crim. P. 16(a)(1)(F) and (G); 16(b)(1)(B) and (C).
LCrR 16.1(b)(1) requires the government, without the need for a request from the defendant, to disclose the discoverable material under Fed. R. Crim. P. 16(a)(1) within 14 days of arraignment (unless the parties agree on a different date or the defendant declines to accept the discovery). LCrR 16.1(b)(2) requires the defendant to disclose such material within 30 days of arraignment (unless the parties agree on a different date or the defendant has timely notified the government that the defendant declines reciprocal discovery). Without more, the local rule could be interpreted to mean that all expert witnesses and reports must be disclosed within 14 days of arraignment by the government and within 30 days by the defendant. The argument has been made in recent criminal litigation that the government’s failure to disclose expert witnesses and reports within 14 days should result in exclusion of the evidence from trial.
In order to clarify the scope of disclosure of expert witnesses and reports under the local rules, the amended rule requires only the disclosure of expert witnesses and expert reports or summaries known or existing as of the date of the disclosure deadlines under LCrR 16.1. The amended rule requires later identified experts or later created reports or summaries, including curriculum vitae, to be disclosed no later than 30 days before trial. Rebuttal experts (and their reports and curriculum vitae) must be disclosed 15 days before trial.
Prior to the recent amendments, pleading practice in the sentencing phase of a criminal case was largely unstructured, especially with respect to the deadlines for filing sentencing memoranda and objections or responsive pleadings. LCrR 32.1(i) creates new deadlines, so have your calendar handy at the change of plea or jury verdict in order to mark these new dates.
All motions for a departure under, or variance from the sentencing guidelines, as well as sentencing memoranda, must be filed no later than ten (10) days before the date of the scheduled sentencing hearing. A copy must be served on opposing counsel and the probation officer. Any objection or responsive pleading to a motion for departure or variance must be filed no later than four (4) days before the sentencing hearing, with a copy served on opposing counsel and the probation officer.
The Subcommittee appreciates all the comments it received. As always, a careful reading of the Rules is the best practice and, no matter how long one has practiced, is educational.
Mr. Glahn is a partner at McLane, Graf, Raulerson & Middleton in Manchester. Mr. Howard is a principal in the Manchester law firm of Howard & Ruoff. Together they Co-Chair of the Local Rules Subcommittee of the Federal court Advisory Committee, with Mr. Glahn focusing on the Civil Rules and Mr. Howard the Criminal Rules.