Practice Pointers (JFD.pdf)

Magistrate Judge John F. Docherty Practice Pointers and Preferences Resources for Pro Se Litigants • People representing themselves without the help of a lawyer - pro se litigants - have free, online access to the Federal Rules of Civil Procedure here. The Local Rules of the District of Minnesota can be found here. Additionally, the Pro Se page on the District Court’s website has other useful resources for pro se litigants. Magistrate Judge Docherty expects pro se litigants to be familiar with and to follow the Federal Rules of Civil Procedure and the Local Rules.

Contact with Chambers • If you have questions about Magistrate Judge Docherty’s Practice Pointers and at Courtroom Deputy the Preferences, please [email protected] contact • Neither Magistrate Judge Docherty nor members of Chambers staff will provide answers to legal questions. For procedural questions, please refer to the Federal Rules of Civil Procedure, the Local Rules for the District of Minnesota (available here) or the pretrial scheduling order in the case. • Requests for relief must be brought by motion, stipulation, or by using Magistrate Judge Docherty’s informal dispute resolution (“IDR”) process, which is described further down in these Practice Pointers and Preferences. Emails and telephone calls to Chambers are not appropriate means for requesting relief from the Court. • Neither Magistrate Judge Docherty nor any member of Chambers staff will communicate with the press about any matter before the Court. • When contacting Chambers with a question regarding a specific case, please first identify yourself and the party you represent, and please have the case name and number ready to provide to Chambers. • If you have a question or seek clarification regarding an order entered by Magistrate Judge Docherty, please do not call or email Chambers seeking an answer or clarification. Instead, file a letter on CM/ECF containing your question or request for clarification. • If you have a question about how to file a document on CM/ECF, please contact the Help Desk in the Clerk of Court’s Office at 612-664-5155 or toll-free at 866-325- 4975, or by email at [email protected].

Scheduling Hearings Judge • All motions to be heard by Magistrate Judge Docherty must be scheduled through Magistrate at [email protected]. When scheduling a motion, the parties should inform the Court of all motions pending or anticipated so they can be heard at the same time. The party scheduling the motion shall include counsel for the opposing party, or the opposing party themselves if they are not represented, on the email. Docherty’s Courtroom Deputy • When scheduling a motion, the parties should inform the Court if there are related cases with related motions. • The parties should jointly contact the Court if a hearing date or time must be rescheduled. • Even if the parties agree that a motion can be submitted on the papers without oral argument, chambers must be contacted to set the date for submission of the matter to the Court.

The matter will be deemed submitted upon receipt of the last filing. The Court will determine whether to hold a hearing. • Magistrate Judge Docherty allows for hearings via Zoom if all parties agree. If one party objects to a Zoom proceeding, the hearing will be held in-person. The parties should discuss their preferences before contacting the Court for scheduling.

In Court • Counsel should be prepared to refer to the record using citations to the CM/ECF docket (e.g., Dkt. No. 22 rather than “Exhibit M”). • Magistrate Judge Docherty will read all relevant filings in advance of a hearing. The hearing is primarily to allow questions to be put to counsel and receive clarifications from counsel. • If you intend to use visual aids at a hearing, such as PowerPoint or other presentation graphics, bring sufficient hard copies for the Court, the law clerk, the court reporter, and opposing counsel to be used in case of technology issues. The copy should reference the case name and case number.

2 • If you intend to use paper copies of cases, documents, etc., at a hearing, bring sufficient copies for the Court, the law clerk, the court reporter, and opposing counsel. • Magistrate Judge Docherty strongly encourages litigants to seek opportunities for newer lawyers to conduct hearings before the Court. This is particularly true of motions which the newer lawyer drafted or made a significant contribution to preparing. Magistrate Judge Docherty believes it is crucial to provide substantive courtroom opportunities to newer lawyers. This will benefit the newer lawyer and will also benefit their law firm, clients, and the legal profession in general.

Magistrate Judge Docherty will emphatically not make any inferences about the importance a party places on a particular point from the experience level of the lawyer chosen to argue that point. • If you plan to use the courtroom technology, please become familiar with it ahead of time. Courtroom technology manuals can be found on the court’s website here. You may coordinate a time to test your technology in advance of the hearing by contacting chambers at [email protected] or 651-848-1180. Magistrate Judge Docherty and his staff are not responsible for the courtroom technology’s functioning, so have a back-up plan if the technology is not available.

Audio-Only Hearings • Magistrate Judge Docherty uses Zoom audio-only (no video) to hold status conferences and Rule 16 hearings. The parties will receive an email from Chambers in advance of the call that will provide the necessary Zoom information. • Magistrate Judge Docherty may periodically schedule a Zoom audio-only status conference in your case to discuss the current state of the case and how it is progressing, and to see whether the parties could use the Court’s assistance in reaching a mediated resolution of their dispute. If counsel or a pro se litigant has a scheduling conflict with a scheduled status conference, please contact the Courtroom Deputy at [email protected] to ask that the status conference be rescheduled. Criminal Cases • Motions for reconsideration of detention premised upon acceptance into a treatment program shall set out an appropriate release plan in accordance with the 3 recommendations of a Rule 25 substance abuse evaluation.

Further, Defendant shall provide to chambers a substance abuse evaluation and a letter of acceptance from the proposed treatment program, accompanied by a statement of the program’s requirements contemporaneously with the filing of a motion. • All motions for reconsideration of detention, whether premised on acceptance into a treatment program or on some other change in circumstances, shall contain a statement as to the respective positions of U.S. Probation and Pretrial Services and the United States Attorney.

CIVIL CASES

First Pretrial Conference and Rule 26(f) Report • The parties are encouraged to use the downloadable templates, in both pdf and Word formats, for Rule 26(f) reports found on Magistrate Judge Docherty’s website here. Templates are available for general civil cases, intellectual property cases, and ERISA cases. • The parties must discuss whether electronic discovery will be a factor in their case and be prepared to discuss electronic discovery issues at the pretrial conference. Well in advance of the conference, please review the Court’s “Discussion of Electronic Discovery at Rule 26(f) Conferences: A Guide for Practitioners,” developed by the Court’s Federal Practice Committee to help attorneys and parties prepare for a meaningful discussion of electronic discovery issues early in the litigation. The Guide is available here and on the District of Minnesota’s website.

Motion Practice • The meet-and-confer requirement of the Local Rules is intended to lead to a meaningful, pre-motion-filing exchange of views between the parties to a lawsuit, and, if possible, to a full or partial resolution of the matter(s) that are the subject of a contemplated motion. Neither a desultory, pro forma conversation, nor letter- writing or email campaigns satisfy the letter—or the spirit—of the meet-and-confer requirement of the Local Rules. • If a pending motion is resolved, please notify Chambers as soon as possible so that any scheduled hearing can be removed from the calendar. If a motion has been partially resolved, please notify Chambers to let the Court know what parts have been resolved and no longer need to be addressed by the Court. If time permits, notification should be by joint stipulation, as provided by Local Rule 7.1.

4 • There is no need to provide paper courtesy copies of filings to Chambers. Magistrate Judge Docherty prefers not to receive hard copies. • Magistrate Judge Docherty’s IDR process is available to resolve non-dispositive disputes. Typically, if the IDR process is used, the matter is not briefed, nor are declarations and sworn affidavits filed. IDR offers prompt resolution of an issue, but because of IDR’s less formal procedure, Magistrate Judge Docherty’s decision is not appealable to either the District Court judge or the Eighth Circuit.

Therefore, all parties must agree to use the IDR process. If there is no agreement to resolve a dispute though IDR, then the dispute must be presented to the Court through formal motion practice. If the parties agree to use the IDR process, each party will submit a short (no more than three single-spaced pages) letter outlining their position on the issue. No exhibits to the IDR letters are allowed and Magistrate Judge Docherty will not resolve more than one issue per party in an IDR proceeding unless other arrangements are made at least one week in advance of the IDR conference call.

Two business days after submitting the letters the parties will participate in a Zoom audio-only conference call to further discuss and argue the issue. Magistrate Judge Docherty will verbally rule on the dispute at the end of the conference call. Magistrate Judge Docherty will not write an order or a report and recommendation; the practical effect of this is that the parties will be unable to appeal an IDR decision. IDR offers rapid resolution, at the expense of appealability.

IDR is best-suited to situations in which the parties’ need for a resolution of some sort before they can move on with the case is more important to them than having a dispute resolved in a particular way. Settlement Conferences • Magistrate Judge Docherty expects all parties and counsel to fully comply with any Order for Settlement Conference issued by the Court. • If a party to a settlement conference finds any reason not to hold the settlement conference (for example, waiting on a motion to be ruled on that is important to valuing the case for settlement, waiting on the deposition of a critical witness, etc.) they should promptly reach out to chambers. Protective Orders • Proposed Protective Orders should be a standalone document inclusive of all of the terms and conditions of the stipulation, not an order simply referencing the Stipulation for Protective Order. 5 • If the parties use the form protective order on the Court’s website as a template for their own protective order, they should submit both the agreed-on protective order and a redline showing deviations from the Court’s form order.

(If the only change to the Court’s form order is a change of caption and the insertion of the case name and file number as appropriate in the body of the protective order, then no redline need be submitted.) 6