Courtroom Decorum; Procedures for Civil Discovery and Settlement Matters; Guidelines for Proposed Protective Orders; Pretrial Matters and Trial Instructions

=== Courtroom Decorum ===

Courtroom Decorum 1. Counsel and parties should be seated at counsel table and prepared to proceed no later than three minutes before the Court’s scheduled time. 2. On trailing calendar proceedings, including all preliminary criminal proceedings, special requests to advance or delay appearance times because of counsel’s scheduling conflicts may be presented to the Court’s courtroom deputy. 3. Please determine well in advance of a proceeding if there is a need for court interpreters for civil cases. The Court’s courtroom deputy can assist counsel in locating qualified interpreters for civil proceedings. In all criminal cases, the Court will supply certified interpreters. 4. Gum chewing is not permitted in court. Counsel is responsible for ensuring that parties, witnesses, and court observers associated with counsel’s party properly dispose of gum in appropriate receptacles prior to entering the courtroom. 5. All cell phones exempt from the prohibition in Local Rule 83.1 must be silenced. Counsel is responsible for ensuring that parties, witnesses, and court observers associated with counsel’s party comply with this requirement. 6. Judge Martínez has authorized the use of Federal Bar Association WiFi during court proceedings. 7. Dress Code: a. All individuals should wear business or business-casual appropriate clothing. Jeans are acceptable. b. All individuals must wear shoes in the courtroom. Flip-flops and thong sandals are not acceptable. c. Examples of clothing that is not acceptable: shorts, t-shirts, sweatpants/athletic apparel, revealing clothing. d. Hats or caps must be removed while in the courtroom. 1

=== Procedures for Civil Discovery and Settlement Matters ===

Procedures for Civil Discovery and Settlement Matters This document contains information on the following matters: General Briefing and Hearing Guidelines Checklist for Rule 26(f) Meet-and-Confer and Rule 16 Scheduling Conferences I. II. III. Minor Discovery Matters IV. Settlement Conference Guidelines I. General Briefing and Hearing Guidelines A. Opposing counsel must be copied on all email communications that counsel initiate with the Court. B. For any opposed motion, counsel should indicate in their briefing whether they request a hearing on the motion. Hearings are held at the Court’s discretion. Judge Martínez normally conducts discovery hearings telephonically. C. If materials must be sent to the Court for any reason, they should be sent electronically to Martí[email protected]. Please do not send by facsimile. Opposing counsel must be copied on all written or email communications that counsel conduct with the Court with the exception of the confidential letter sent in anticipation of a settlement conference. D. Even if stipulated, parties seeking an extension in excess of ten days for any filing deadline must file a Motion to Extend with the Court by the day of the original deadline. If the parties agree to a filing extension of less than ten days that does not interfere with other established case management deadlines, they must file a notice as required by Local Rule 7.4(a). E. Proposed orders must be sent to Martí[email protected] after the filing of any unopposed motion. They should be submitted in Microsoft Word format (as .docx files), with 1” margins, be justified, and use Times Roman font, size 12. In civil cases, the case number should be presented as follows: Case No. ###-cv-### [Presiding Judge initials] / [Referral Judge initials]. Further, they must indicate the approval of all parties by including the electronic signature of all parties at the end of the document. F. Parties must clearly label all exhibits attached to a filing on CM/ECF. For example, rather than merely labeling an exhibit “Exhibit A,” parties must provide additional description, such as “Exhibit A: Deposition of Plaintiff Jones,” or “Exhibit A: Defendant Smith’s Responses to Interrogatories.” G. For telephonic conferences or hearings, counsel must call into the conference line no later than three minutes before the conference or hearing begins. H. Counsel are reminded that when Judge Martínez is assigned as the discovery/referral judge, the parties may consent to him presiding over the case pursuant to Local Rule 73.2. Judge Martínez will conduct trials in Albuquerque or Roswell if the parties unanimously request it. Should the parties wish to do so, they must fill out Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge. The form must be returned to the Clerk’s Office and should not be sent directly to either assigned judge. II. Checklist for Rule 26(f) Meet-and-Confer and Rule 16 Scheduling Conferences To ensure that civil litigation is “just, speedy, and inexpensive” as required by Federal Rule of Civil Procedure 1, attorneys and parties must collaborate in the discovery process. To that end, the Court requires attorneys and pro se litigants to review this Checklist at the mandatory Rule 26(f) Meet-and-Confer conference. The Court expects the parties to summarize any actual or anticipated disputes in each area of the Checklist in the Joint Status Report and Provisional Discovery Plan (JSR) they file prior to the Rule 16 Scheduling Conference. A. Counsel must use the Court’s form JSR.1 Counsel shall thoroughly read and comply with the Court’s Initial Scheduling Order and this Checklist when completing the JSR. The Initial Scheduling Order is normally entered shortly after the first answer is filed in a lawsuit. Parties must take care to respond to each section of the JSR completely (i.e., by writing the parties’ contentions in the appropriate spot rather than directing the Court to read the pleadings) and to fill in specific dates as requested. 1. Although the JSR does not mention requests for production (RFP), the Court asks the parties to discuss and, if possible, agree on how many RFPs each side will need. B. Protective Orders: The parties must discuss whether a protective order is necessary prior to exchanging information in discovery. If so, the parties should be prepared to submit a proposed order, formatted according to this Chambers’ Guidelines,2 no later than seven days following the Rule 16 Scheduling Conference. C. Preservation and Collection of Information: The parties must confirm that they are preserving relevant evidence, including electronically stores information (ESI), and that proper litigation holds are in place. The parties should be wary of applying too narrow a definition of what constitutes relevant ESI, since a miscalculation could lead to the permanent loss of relevant information. They must also disclose the scope of any litigation hold with respect to custodians, information sources, and time period. The parties should discuss collection of ESI and any specific requirements for collection, such as forensic imaging. The parties should also discuss whether they agree that certain categories of ESI need not be preserved or produced because they are inaccessible, burdensome, or unlikely to yield relevant information. D. Sources of Information: The parties must discuss the sources of relevant information, including corporate and personal accounts, and disclose all software and applications that 1 The JSR is available at https://www.nmd.uscourts.gov/forms/joint-status-report-and-provisional-discovery-plan-pdf. 2 See Guidelines for Proposed Protective Orders, available at https://www.nmd.uscourts.gov/content/honorable- damian-l-martinez. 2 are used to generate, manage, and store that information. This includes, but is not limited to: • Email systems • Mobile device data • Text and messaging applications, including, for example, iMessage, WhatsApp, Facebook Messenger, SnapChat, Signal, Wickr, and Telegram • Workplace collaboration tools and chat applications, such as Slack and Microsoft Teams • Social media accounts • Unstructured data, such as documents created by commonly used Microsoft Office programs and Google programs • Structured data, such as information stored in structured databases like Salesforce and Basecamp • Wearable devices, such as data from watches or tags • Backup media, such as data from tapes, discs, or cloud accounts • External storage media, such as portable hard drives or flash drives • Voicemail systems • Video surveillance systems E. Search Methodology for ESI: The parties must discuss what search methodologies will be used to identify responsive ESI, including the use of search terms or technology assisted review, and how those methodologies will be validated. An agreed-upon search methodology should include whether a producing party reserves the right to conduct a separate relevance review of information that is identified as responsive under the search methodology. The Court expects the parties to follow The Sedona Principles “and seek to reach agreement regarding the preservation and production of [ESI].”19 The Sedona Principles, Third Ed., 19 Sedona Conf. J. 1, 71 (2018). F. Production of ESI: The parties must discuss how ESI will be produced, including: • The format of production, i.e., native files, PDF files, TIFF+ files, etc. • Whether the production will include a load file • Applicable metadata by source of ESI • The scope of messages to be produced from text messages and collaborative apps; i.e., the entire thread or a portion based on proximity to the responsive information • Threading of emails • Any applicable process for de-duplication of information • Whether hyperlinked documents will be included in the production, and (where applicable) whether they will be produced in a family relationship with the underlying communication (email, chat message, text message, etc.) • How to resolve any claims of privilege, and whether a separate court order under Fed. R. Evid. 502(d) is appropriate • How redactions will be handled and logged • Production methods and timing, including any plans for supplemental or rolling productions 3 G. ESI Order: The parties must discuss whether the case warrants a joint submission of a proposed order governing discovery of ESI. The parties must include language in any proposed ESI order that recognizes the Court’s authority to modify the terms of the order for good cause at later stages of the litigation. H. At the Rule 16 Scheduling Conference, counsel shall be prepared to discuss items from the above checklist. Counsel must also be prepared to discuss setting a settlement conference. III. Minor Discovery Matters Judge Martínez will accept requests for telephonic resolution on discovery matters, including resolution of problems occurring during a deposition, provided that the following requirements are met: A. The parties have not briefed the matter. B. The matter involves a narrow or discrete issue: i.e., instructing a witness not to answer, a question about a protective order, scheduled depositions, or production of files or documents. Requests to compel responses to a number of interrogatories, etc., cannot be easily resolved in telephonic conferences. C. Counsel shall attempt to resolve the dispute themselves by telephone or in person before contacting Judge Martínez. An email or letter exchange is not sufficient. D. Counsel shall file a motion for an informal discovery conference. All parties must agree to a telephonic conference before any one counsel files the motion. Counsel shall also email chambers (Martí[email protected]) to make an appointment. E. Written requests for a telephonic discovery conference shall not include any argument on the merits of the request or complaints about opposing counsel. The email should include a brief outline of the narrow and discrete nature of the request, the request for a conference, and alert the Court to any relevant deadlines or time constraints. IV. Settlement Conference Guidelines A. Unless otherwise requested and ordered, all settlement conferences with Judge Martínez are held in the Doña Ana courtroom of the U.S. District Courthouse in Las Cruces. B. The Court does not provide interpreters for settlement conferences. If a participant requires an interpreter, counsel must ensure one is present. C. Counsel must email settlement documents as instructed to Judge Martínez’s chambers. 4

=== Guidelines for Proposed Protective Orders ===

Guidelines for Proposed Protective Orders I. Stipulated Protective Orders In certain cases, the parties may agree that discovery should be governed by a protective order limiting the disclosure, use, and dissemination of confidential information. If all parties agree concerning the need for a protective order and its scope and form, their counsel should file a stipulated motion for protective order with the proposed protective order attached as an exhibit to the motion. The parties must also e-mail a copy of their proposed protective order to [email protected]. If the proposed protective order is appropriate, the Court will sign and enter it. If it is not appropriate, the Court will, in its discretion, modify and enter a revised protective order or deny the motion, notifying counsel of any objectionable language or provisions. II. Opposed Protective Orders If the parties disagree concerning the need for a protective order and/or its scope or form, the party or parties seeking such an order should file an opposed motion for protective order with the proposed protective order attached as an exhibit to the motion. Where there is an objection to the scope or form of a proposed order, the party or parties opposing the motion shall, in their written response to the motion, provide the Court with proposed language that would resolve their specific objections to the order’s scope or form. III. Guidelines in Drafting Proposed Protective Orders1 The following guidelines have been developed to assist the parties in drafting stipulated protective orders. 1 As with all proposed orders submitted to Judge Martínez, proposed protective orders should be submitted in Microsoft Word format (as .docx files), with 1” margins, be justified, and use Times Roman font, size 12. The case number should be presented as follows: Case No. ###-cv-### [Presiding Judge initials] / [Referral Judge initials]. Further, they should indicate the approval of all parties by including the electronic signature of all parties at the end of the document. 1 A. Recitation of Facts Showing Good Cause Under Fed. R. Civ. P. 26(c) Any proposed protective order must include a concise but sufficiently specific recitation of the particular facts that, according to the parties, provide the Court with an adequate basis on which to find good cause to issue the order pursuant to Federal Rule of Civil Procedure 26(c). B. Scope of the Protective Order The scope of the protective order must be narrowly tailored and specific. It should include a clear and precise description of the categories of documents, information, items, or materials (including electronically created or stored information) that are subject to the protective order, such as “medical records,” “personnel files,” or “tax returns.” Categories such as “all documents a party designates as confidential” or “all business records” are vague and overbroad. The protective order should clearly reflect that its provisions only apply to the named categories of documents, information, items, or materials specifically set forth in the protective order. The protective order should explicitly exempt information or documents that are available to the public or that have not previously been kept in a confidential manner. C. Provisions for Filing Documents Containing Confidential Information under Seal The proposed protective order should not contain a blanket provision that requires or allows the parties to file documents containing confidential information under seal without the Court’s approval. As a public forum, the Court’s policy is to provide the public with access to filed documents to the fullest extent possible consistent with the law and the parties’ rights to confidentiality and privacy. Where the sealing of documents is not explicitly mandated by law or regulation (e.g., False Claims Act complaints), a document will only be sealed if the Court finds that there is good cause to withhold the specific document in question from the public by sealing it. The mere designation of information as confidential pursuant to a protective order may not be sufficient to satisfy the Court’s requirements for filing under seal in light of the public’s 2 presumptive right of access to the Court’s dockets. Rather, where a document containing information subject to a protective order is included in a pleading filed with the Court, the party filing such pleading should also file a motion to seal the document. In accordance with this policy, a proposed protective order must include the following acknowledgement: The parties acknowledge that this Order does not entitle them to seal confidential information filed with the Court. In general, before filing a motion for leave to seal a document filed with the Court, the parties should consider other steps to prevent the unnecessary disclosure of confidential information in court filings, such as redacting confidential information from the document to be filed. See Fed. R. Civ. P. 5.2. If the parties wish to include a provision for filing confidential materials under seal in the proposed protective order, the following language would generally be acceptable: In the event a party seeks to file any document containing Confidential Information subject to protection under this Order with the Court, that party must take appropriate action to ensure that the document receives proper protection from public disclosure, including: (a) filing a redacted document with the consent of the party who designated the document as confidential; (b) where appropriate (e.g., in relation to discovery and evidentiary motions), submitting the document solely for in camera review; or, (c) when the preceding measures are inadequate, seeking leave to file the document or portions thereof under seal by filing a written motion for leave to file under seal. The submitting party may file a document designated as confidential under this Order as a separate sealed exhibit before a sealing order is obtained. Contemporaneously with that filing, however, the party must file a motion for leave to file the document under seal, identifying the party that has designated the material as confidential (“the designating party”). If the party filing the document containing confidential information is the designating party, the motion for leave to file under seal should include a declaration identifying the confidential information contained in the document and explaining why the document is sealable. If the party filing the document is not the designating party, the designating party must file a declaration identifying the confidential information contained in the document and stating whether the designated material is sealable, and if so, why, within 14 days of the filing of the motion to file under seal. If the designating party does not file a responsive declaration within the 14-day time period, the submitting party may file the document in the public record no earlier than four days, and no later than ten days, after the motion is denied. 3 D. Introduction of Documents Containing Confidential Information into Evidence The protective order should not attempt to limit the Court’s judgment or discretion in any way regarding the treatment, handling, or admission of documents containing confidential information at a hearing or trial. If the parties wish to include a provision regarding the use of documents containing confidential information at hearings and trial, the following language would generally be acceptable: The terms of this protective order do not preclude, limit, restrict, or otherwise apply to the use of documents at court proceedings. Subject to the Federal Rules of Evidence, a confidential document may be offered into evidence at trial or any court hearing, provided that the proponent of the evidence gives advance notice to opposing counsel of the intended use of the confidential document as may be required by a scheduling or other order. Any party may move the Court for an order that the confidential document be received in camera or under other conditions to prevent unnecessary disclosure. The Court will then determine whether the proffered evidence should continue to be treated as a confidential document and, if so, what protection(s) may be afforded to such information at the trial or hearing. E. Application to Non-Parties The protective order should refrain from stating that it is binding on non-parties or that the Court has jurisdiction over non-parties to enforce the protective order’s provisions. The Court will not order a non-party to consent to the Court’s jurisdiction or to abide by the protective order’s terms. The parties may attach a form agreement to the proposed protective order and a non-party may agree to be bound by the terms of the protective order by signing the agreement. The protective order may include provisions that protect confidential information, documents and materials produced by a non-party or parties who are later added to the action. Any new party to the lawsuit must be given the opportunity to review the protective order and decide whether to stipulate to or contest it. F. Jurisdiction Ordinarily the Court’s jurisdiction, including jurisdiction to enforce a protective order, 4 terminates upon final disposition of the case. While the protective order should not state that the Court has continuing jurisdiction over the protective order, if the parties agree to be bound by its terms after the litigation ends, the protective order may appropriately state that its provisions will continue in force after the litigation terminates. If the protective order includes such a provision, the parties may also include a provision allowing a party to seek leave to reopen the case to enforce the protective order’s provisions. G. Instructions to the Clerk of the Court The protective order should not direct the Clerk of the Court to return or destroy confidential documents that are filed in the case. H. Court Personnel and Jurors The protective order should neither state nor imply that it is binding on court personnel or jurors. If the protective order would otherwise leave room for interpretation as to this point, it should explicitly provide an exception for court personnel and jurors. 5

=== Pretrial Matters and Trial Instructions ===

Pretrial Matters and Trial Instructions This document contains information on the following matters: I. II. III. IV. V. Pretrial Matters and Deadlines General Trial Instructions Exhibits Jury Trials Exhibit/Witness List Form I. Pretrial Matters and Deadlines Counsel must seek leave of the Court in the form of a written motion to extend any pretrial deadline. The following pretrial deadlines will be included in the pretrial order but will roughly follow the schedule below: Event Pretrial motions, including Daubert motions Motions in limine Consolidated exhibit list Witness lists Deadline Due shortly after discovery ends. Approx. 6 wks before pretrial conference (PTC) Approx. 6 wks before PTC Approx. 6 wks before PTC Jury instructions Approx. 2 wks before PTC Contested exhibit list Approx. 2 wks before PTC Objections to use of deposition testimony Approx. 4 wks before PTC 1 Comment The pretrial motion deadline is set in the Court’s Scheduling Order. Response brief due two wks after motion; no reply brief considered unless requested and allowed. Motions in limine filed after the deadline may be summarily denied. The parties must confer over all trial exhibits and stipulate when possible. Each list must indicate whether the witness is testifying by deposition or in person. If a deposition will be used in part, counsel shall mark the parts to be used. The parties must confer about proposed jury instructions (see Section IV below). Parties shall file written objections to jury instructions four working days after jury instructions are filed. For any exhibits on which a stipulation could not be reached, the offering party must file a separate contested exhibit list. The contested exhibit list identifies exhibits that the parties have stipulated are admissible and/or that the parties have stipulated to be authentic, but to which there are other objections. The objecting party must identify those portions of the requested deposition testimony to which they object. The Voir dire question Statement of the case Approx. 2 wks before PTC Approx. 2 wks before PTC Proposed Findings of Fact and Conclusions of Law Approx. 3 wks before trial II. General Trial Instructions parties must confer about any disputes and, if unable to resolve their differences, must notify the Court in writing no later than seven days before trial. Any party wishing to participate in voir dire must file proposed voir dire questions. The parties must confer and submit an agreed statement of the case to the Court that will be read to the jury panel during jury selection. In non-jury trials, parties shall file proposed findings of fact and conclusions of law with references to exhibits and proposed testimony. A. Counsel shall notify the Court at least 14 days before trial if they require audio-visual or other special equipment. Counsel must contact and receive training from the Court’s IS department before trial regarding any technology needs. Counsel are responsible for operating the equipment as needed. B. All expert reports must have been exchanged in advance in accordance with Fed. R. Civ. P. 26(a)(2). As in other areas, cumulative expert testimony will not be permitted. C. Each party is typically permitted 15 minutes for voir dire. Do not argue the case or cite legal principles in your voir dire. D. Each party is responsible for securing the appearance of witnesses the party has listed. E. Counsel should always have witnesses available to fill a full trial day. F. Counsel should question witnesses from the podium and approach the witness stand or jury box only with the Court’s permission. G. If a jury is present, speaking objections are prohibited. Counsel should simply state the objection and the basis for the objection without argument, i.e., “Objection. Hearsay,” or “Objection. Leading.” H. Opposing counsel should not respond to objections unless the Court specifically requests a response. I. Please stand when the jury enters or leaves the courtroom; stand also when stating objections or addressing the Court unless otherwise directed. 2 III. Exhibits A. The Court strongly encourages counsel to stipulate to the admissibility of exhibits wherever possible, particularly regarding their authenticity. B. When filing exhibit lists with the Court, use Judge Martinez’s Exhibit/Witness List Form. (See Exhibit/Witness List Form at Section V of this document.) C. Exhibits shall be marked and identified (Plaintiff’s by numbers and Defendant’s by letters). D. In submitting electronic exhibits to the Court, refer to the Court’s Jury Evidence Recording System (JERS) guide for instructions. IV. Jury Trials A. Parties shall meet and confer in advance of the deadline to agree on as many instructions as possible. Parties are expected to agree on stock instructions and avoid submitting separate requests for the same stock instructions. (See Stock Jury Instructions Form at Section VI of this document.) B. Proposed instructions shall be numbered and annotated. Submit no more than one instruction per page. Proposed instructions should include both requested instructions and the proposed verdict forms. C. Counsel shall submit proposed jury instructions both via CM/ECF and via email (in Word format) to [email protected]. 3 Case Name: Case No. Witness/Exhibit List Form Plaintiff’s Attorney: Defendant’s Attorney: Trial Dates: Presiding Judge: Damian Martinez Court Reporter: Courtroom Deputy: Becky Wilson Pl. No. Def. No. Witness Date Offered Obj. Adm. Description of Exhibit 4