The most significant proliferation of local rules governs electronic discovery. Local practice requirements range from disclosing how electronic discovery will be handled to issuing guidelines or extensive protocols that suggest how the parties should conduct discovery. District courts typically adopt local rules requiring the identification of custodians and relevant computers, the individuals responsible for retention policies prior to the Rule 26(f) conference, and an e-discovery liaison representing each party. Some district courts suggest principles for document preservation and collection, as well as the discovery of electronically stored information relating to operating database types, file applications, and computer-related backup systems.
In addition to e-discovery rules and guidelines, most district courts have provisions governing general discovery and experts that serve to supplement Rule 26. Counsel should examine the local rules for definitions affecting significant terms such as “document,” requirements expanding or restricting the number of interrogatories, requests for production, and requests for admission that a party is permitted to propound. Failure to comply with the local rule disclosure requirements for experts 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 affidavit or a meet-and-confer before counsel can file the moving papers. When filing 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 regulating the cases filed within the district. These orders typically address a range of issues relating to the final pretrial conference. Similarly, counsel should review any district court case management plans that may address the timing and agenda for the pretrial 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 requiring 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 matters as procedures for hearing dates, matters to be covered at final 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 substance, not procedure, will affect the outcome of the case.