Is the Practice of Civil Litigation All Local?

• Pages: 18-18
• Date: 01 October 2022
• Author: Brian A. Zemil
• Subject Matter: Civil Law

oday, there are more than 6, 000 federal d istrict

court local r ules that govern much of federal

civil litigation prac tice, including pleading and l-

ing requirements , pretrial discovery procedures , and

deadlines. Add itional rules can be found in cas e

management plans , general orders, and standing orders.

Collectively, the local r ules are comprehensive, controlling a

case’s procedural cour se, signi cantly increa sing the impor-

tance and scope of d istrict court rules that m ay substan-

tively impact a case.

Reliance on spec ialized legal knowledge and t he FederalRules

of Civil Procedure i s no longer sufcient to represent a client in

district cou rt. Failure to comply with any of the applicable dis -

trict cour t rules gives the court broad disc retion to determine

the appropriate relief, rang ing from the exclusion of evidence

to sanctionin g counsel. Prudent federal practitioners fol low the

controlling loca l rules and general and standi ng orders, and

they consider the assig ned judge’s individual practices when

developing an efcie nt and effective case strategy.

The Rules Enabling Act and Rule 83 allow a district court

to prescribe rules “governing its practice.” While a district

court’s local rules must be consistent with and organized in

accordance with the Federal Rules of Civil Procedure, local

rules differ from district court to district court. At the incep-

tion of every case, counsel should refer to the district court’s

website to obtain the court’s controlling local rules and the

assigned judge’s particular practices.

The most signi cant proliferation of local rules gover ns

electronic di scovery. Local pract ice requirements range from

disclosing how elect ronic discovery will be hand led to issuing

guidelines or ex tensive protocols that suggest how the par ties

should conduct discover y. District cour ts typically adopt local

rules requir ing the identication of custodia ns and relevant

computers, the indiv iduals responsible for retention policies

prior to the Rule 26(f) confere nce, and an e-discovery lia ison

representing each pa rty. Some district courts su ggest principles

for document preser vation and collection, as well as the di s-

covery of electronic ally stored information relating to oper -

ating database t ypes, le applications, and computer- related

backup systems.

In addition to e-d iscovery rules and guidelin es, most dis-

trict cour ts have provisions governing general discovery a nd

experts th at serve to supplement Rule 26. Counsel should

examine the lo cal rules for denitions af fecting signi-

cant terms such as “docu ment,” requirements exp anding or

restricti ng the number of interrogatories, request s for produc-

tion, and requests for ad mission that a party is perm itted to

propound. Failure to comply wit h the local rule disclosure

requirements for exp erts may result in the exclusion of the

expert’s opinion testimony.

Counsel should always consult the district court rules

when preparing a motion to determine whether the local

rules impose page and word limits. Counsel should also

review whether the local rules require an afdavit or a meet-

and-confer before counsel can le the moving papers. When

ling a motion for summary judgment, check the local rules

that may require particularized numbering of material facts.

In such a case, opposing counsel will need to controvert each

material fact by referring to the corresponding “fact” number.

Some district courts will deem admitted any material facts

that the opposing party fails to properly controvert with a

corresponding number. District courts will also issue different

deadlines depending on the motion or procedure at issue, and

failure to timely respond under the local rules can constitute

a waiver in certain district courts.

Counsel’s review of the local rules is the starting point for

understanding the district court’s procedural requirements.

Counsel must also consider district court general orders regu-

lating the cases led within the district. These orders typically

address a range of issues relating to the nal pretrial conference.

Similarly, counsel should review any district court case manage-

ment plans that may address the timing and agenda for the pre-

trial conference. Lastly, counsel should consider whether district

courts have established COVID-19 protocols specifying the

requirements for remote and in-person proceedings to ensure

the safety of the litigants and court personnel.

After understanding the district court’s local rules, general

orders, and case management plans, counsel should determine

whether the presiding judge has any standing orders requir-

ing compliance with additional practices and procedures. The

judge’s courtroom rules will also provide valuable guidance and

insight into his or her individual practices, including such mat-

ters as procedures for hearing dates, matters to be covered at

nal conferences, and courtroom conduct and demeanor.

Is the practice of civil litigation all local? Perhaps not.

But a meaningful response may be found in the adage “When

in Rome, do as the Romans.” Effective client representation

always requires credible counsel who demonstrates a working

knowledge of the district court’s local rules, general orders,

case management plans, and the individual judge’s practices

expressed in the court’s standing orders. Understanding the

rules controlling where you are litigating ensures that sub-

stance, not procedure, will affect the outcome of the case.

Digital vers ions of all Civil Proc edure stories, i ncluding links to res ources and

authorities , are available at http://bit.ly/LN-civpro.

Is the Practice of Civil Litigation

All Local?

By Brian A. Zem il, Litigation News Associate Editor

FALL 2022 • VOL. 4 8 NO. 1

18 | ABA LITIGATION SECTIO N

Published in Litigation News Volume 48, Number 1, Fall 2022 . © 2022 by the American B ar Association. Repr oduced with permis sion. All rights rese rved. This informa tion or any portion th ereof may not be cop ied or disseminated in any for m

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

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