As my colleague and I were getting ready to serve Rule 26(a)(3) disclosures in a case coming up for trial, we found ourselves asking whether we needed to also file the disclosures (like for motions) or just the certificate of service (like for interrogatory responses). A quick look at the Federal Rules of Civil Procedure seemed to give us our answer: Rule 5(d)(1)(A) does not exempt the disclosures from the filing requirement and, if that were not clear enough, Rule 26(a)(3) plainly states that they are to be filed. Even so, our jurisdiction’s local rules said that we were only to file the certificate of service—and so that is exactly what we did.
Had we failed to consult the local rules and filed the entire Rule 26(a)(3) disclosures, as the Federal Rules of Civil Procedure require, I expect the most severe consequence would have been a disappointed head shake from the presiding judge. But as the following examples show, local rules can regulate far more substantive aspects of pretrial practice.
Motion practice. Some local rules adopt meet-and-confer requirements that must be satisfied before counsel file any motion. The courts adopting these requirements have also not been shy about denying motions that were filed without satisfying them.
Briefing. Every set of local rules seems to impose a page limit (or, increasingly, word limit), which in some courts change depending on the type of motion. Some local rules also require parties to address certain topics and hew to certain formatting requirements. And at least one set of local rules requires all summary-judgment motions to be accompanied by a numbered set of material facts, which will be deemed admitted if not controverted by a similarly numbered statement in opposition.
Discovery. Local rules may define significant terms for discovery (such as “document”) or alternatively restrict or liberalize the number of written discovery requests (interrogatories, requests for production, requests for admission) that can be served. They can also impose requirements for discovery conferences and disputes.
Deadlines. Like briefing, every set of local rules seems to impose some sort of deadline requirement. These, too, can change based on the type of motion or procedure at issue. And at least one court suggests in its local rules that a party who misses the deadline to respond to a motion has waived its right to oppose the relief.
Because the Federal Rules of Civil Procedure govern practice in all of the federal district courts, it is tempting to think that each court conducts its business in the same way. But the local rules can affect practice in ways that have substantive consequences for the unwary attorney. A quick review of the local reviews before any filing is thus always advisable.
Joseph V. Schaeffer is a member with the law firm of Spilman Thomas & Battle, PLLC.