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Litigation News

Fall 2022, Vol. 48, No. 1

Is the Practice of Civil Litigation All Local?

Brian Alain Zemil


  • Federal district court local rules govern federal civil litigation practice, including pleading, discovery, and deadlines.
  • Compliance with local rules is essential to avoid adverse consequences and sanctions for counsel.
  • Understanding and adhering to local rules, general orders, and individual judge's practices is crucial for effective client representation and ensuring procedural matters do not overshadow substantive aspects of the case.
Is the Practice of Civil Litigation All Local?
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Today, there are more than 6,000 federal district court local rules that govern much of federal civil litigation practice, including pleading and filing requirements, pretrial discovery procedures, and deadlines. Additional rules can be found in case management plans, general orders, and standing orders. Collectively, the local rules are comprehensive, controlling a case’s procedural course, significantly increasing the importance and scope of district court rules that may substantively impact a case.

Reliance on specialized legal knowledge and the Federal Rules of Civil Procedure is no longer sufficient to represent a client in district court. Failure to comply with any of the applicable district court rules gives the court broad discretion to determine the appropriate relief, ranging from the exclusion of evidence to sanctioning counsel. Prudent federal practitioners follow the controlling local rules and general and standing orders, and they consider the assigned judge’s individual practices when developing an efficient 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 inception 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 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.