Practices and Procedures

=== Practices and Procedures === CHAMBERS PRACTICES AND PROCEDURES OF MAGISTRATE JUDGE CHRISTOPHER B. BROWN I. GENERAL MATTERS A. Communications with the Court Unless otherwise specified in these practices and procedures, communication with the Court should be in the form of motions (rather than letters to Chambers), accompanied by a proposed order specifying the relief requested. Requests for the rescheduling of conferences may be made by email to [email protected]. All counsel shall be copied on the email and the parties should set forth alternative conference dates on which all counsel agree. Otherwise, such requests are to be made by motion stating whether all counsel consent to rescheduling and setting forth alternative conference dates on which all counsel agree.

B. Communications with Chambers Counsel may contact Chambers staff to discuss administrative matters only. C. Video and Telephonic Conferences As appropriate, the Court may conduct conferences or other proceedings by telephone or video. If a proceeding is to be conducted via telephone or video, Chambers will supply log-in information to counsel and unrepresented parties in advance of such proceedings. D. Attendance of Necessary Counsel All parties (other than those proceeding pro se) shall be represented at any conference by counsel who is a member of the Bar of this Court, or who has been specially admitted, has entered an appearance of record, and is sufficiently familiar with all legal and factual matters involved in the action to allow counsel to meaningfully and fully participate in the proceedings.

At all conferences, counsel shall be prepared to discuss in detail and argue any pending motions, and to discuss settlement. Counsel are expected to confer with one another prior to any conference with the Court to review any issue which may be raised at such conference and to provide their respective positions on all such matters. E. Pro Hac Vice Admissions Pro hac vice motions are routinely granted, as long as all of the requirements of Local Rule 83.2.B. are met. F. Comments to the Media 1 Attorneys are expected to adhere to the Rules of Professional Conduct in all dealings, including those with the media.

II.

MOTIONS PRACTICE A. B. C.

Rule 12 Motions If a defendant determines that a Rule 12 motion is appropriate, defense counsel must first meet and confer with plaintiff’s counsel before filing such a motion to determine whether any purported defects with the complaint can be cured. Any motion to dismiss must be accompanied with a certificate stating that the defendant has made good-faith efforts to confer with the plaintiff to determine whether the identified pleading deficiencies properly may be cured by amendment. Rule 12 motions that do not contain the required certification will be stricken. This requirement applies to all Rule 12 motions, including motions for judgment on the pleadings under Rule 12(c).

Oral Argument Oral argument is reserved for factually or legally complex matters. The parties may file a motion requesting oral argument although such motions are generally disfavored. If the Court deems oral argument is appropriate, an Order will issue. The Court does not set aside a specific day or time for argument of motions.

Briefs Except for motions for extension of time, all motions must be accompanied by a brief. The supporting brief must be filed contemporaneously with the motion. 1. Page Limitations Unless otherwise ordered, supporting and responsive briefs for dispositive motions are limited to twenty-five (25) pages.

Supporting and responsive briefs regarding non-dispositive motions are limited to ten (10) pages. For good cause, parties may move for leave to exceed these page limitations. 2. Reply Briefs If the Court requires that a party submit a reply brief, the Court will so state in the briefing order entered on the motion.

Reply briefs shall not exceed five (5) pages. No sur-reply brief to a motion shall be filed without leave of Court. 2 3. 4.

Citation to Unpublished Opinions When citing to unpublished opinions, counsel are to use the Westlaw citation rather than the LEXIS citation. Font and Format All motions and briefs shall use a font not smaller than 12, double- spaced with one-inch page margins. Footnotes shall use a font not smaller than 12 and may be single spaced.

D. E. F. G.

Chamber Copies of Motion Papers Because all motions and briefs filed with the Court are available on CM/ECF, courtesy copies should not be forwarded to the Court unless requested by the Court. Scheduling Unless a separate briefing order issues, responses to non-dispositive motions shall be filed within fourteen (14) days of service, and responses to dispositive motions shall be filed within thirty (30) days of service. Summary judgment motions are generally scheduled to be filed within thirty (30) days of the close of discovery. Counsel must follow Local Rule 56.

Evidentiary Hearings The scheduling of evidentiary hearings is determined on a case-by-case basis. Proposed Orders In accordance with the Local Rules, all motions shall be accompanied by a proposed order of court. The proposed order shall include language detailing the specific relief sought, and not simply that the motion “is granted.” H. Motions to Seal All motions to seal any document or proceeding must set forth the specific factual and legal basis and necessity for sealing under prevailing law. Any order sealing any matter is subject to being vacated upon the motion of any party, any interested person, or by the Court on its own motion.

Absent exceptional circumstances, any proposed Order must include this language: “The Order may be vacated and sealing lifted for cause shown upon the motion of any party or other person with a recognized interest, or after due notice by the Court upon the Court’s own motion.” The parties are reminded that all proceedings in federal court are presumptively open to the public, including those in which “sealed” material may discussed.

III.

CIVIL CASES 3 A. Pretrial Procedures 1. Local Rule 16.1 The Court uses a standard case management order form based on Local Rule 16.1. 2. Conferences a. Initial Case Management Conferences The Court will issue a scheduling order for the initial case management conference after the filing of an answer by all defendants.

Lead counsel shall attend the initial case management conference, but the parties need not attend unless otherwise ordered. The following matters are generally discussed at the initial case management conference: (1) length of time needed for discovery; (2) ADR/settlement elections; (3) the Court's standing Order on Motions Practice; and (4) dates that will control pretrial scheduling. b. Mid-Discovery Conferences A mid-discovery video conference will take place after the completion of ADR. The Court will provide log-in information to counsel and unrepresented parties in advance. The following matters are usually discussed at the mid- discovery video conference: (1) outcome of ADR; (2) progression of discovery; and (3) need for expert discovery, if not determined at the initial case management conference.

The parties need not submit an updated confidential position statement prior to a mid-discovery video conference. c. d. Post-Discovery Conferences A post-discovery conference will be scheduled after the close of discovery. Lead counsel must attend, and the Court will inform counsel if attendance by the parties is necessary. Counsel shall be prepared to discuss all other pretrial deadlines, and the possibility of returning to ADR. Settlement Conferences In some instances, the Court will hold a settlement conference in a case.

The Court requires lead counsel and their clients, or persons with authority, including insurance companies, to attend all settlement conferences. In the event that counsel 4 has full authority to negotiate a settlement, the client may be permitted to participate by telephone or video conference on an as-needed basis. e. Other Conferences Additional case management conferences may take place at the request of counsel or at the Court's discretion. 3. Settlement The Court will explore the possibility of resolving the case short of continued litigation at each stage of litigation and may suggest arbitration, early neutral evaluation, mediation, or other forms of ADR.

Except for social security appeals, petitions for habeas corpus and prisoner civil rights cases, all cases are required to participate in the Court's ADR program pursuant to Local Rule 16.2. Absent good cause shown, the ADR process shall occur within sixty (60) days of the initial case management conference. 4. Confidential Position Statements Unless otherwise ordered, at least ten days prior to a scheduled initial case management conference or post-discovery status conference, the parties shall submit to the Court a confidential position statement.

The statements shall be emailed to [email protected]. To ensure candor, the position statements shall not be filed on the docket, nor served upon the opposing party, and the Court will not disclose the content of any statement to opposing counsel. The confidential position statement shall not exceed three (3) pages and shall include the following: a. b. c. A brief statement of the facts of the case; A brief statement of the claims and defenses, including a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses, and a description of the major issues in dispute; An estimate of the cost and time to be expended for trial; d. The relief sought; and 5 e. The party's position on settlement, including present demands and offers and history of past settlement discussions, offers, and demands. The parties shall not attach exhibits to the confidential position letter.

If the matter involves a non-jury trial, the parties shall not submit confidential position letters. 5. Extensions and Continuances Requests for extensions of time and continuances shall be presented by written motion, contain supporting facts and indicate the position of opposing counsel. Any such motion shall include a proposed scheduling order adjusting any dates affected by an extension or continuance.

Reasonable extensions generally will be granted. For requests for extensions submitted after the filing deadline has passed, the moving party shall show excusable neglect pursuant to Fed. R. Civ. P. 6(b)(1)(B).

B. Discovery Matters 1.

Length of Discovery Period and Extensions The Court solicits input from counsel on the anticipated length of discovery required. In this regard, counsel must comply with Local Rule 26, the provisions of Fed. R. Civ. P. 26, and must file the written report required by Fed. R. Civ. P. 26(f) proposed discovery plan prior to the initial case management conference. Generally, one-hundred and fifty (150) days are allowed for discovery. 2.

Expert Witnesses The Court has no specific practice regarding expert discovery, but generally disfavors expert discovery taking place after the close of fact discovery. The parties shall definitively state their position on using experts at the mid- discovery video conference. 3. Deposition and Discovery Disputes It is the Court’s practice not to take phone calls from the parties for disputes arising during a deposition.

The parties shall place the objection on the record and continue the deposition. For all other discovery disputes, prior to filing any discovery motions, the parties shall first meet and confer in an attempt to resolve the 6 dispute as required by Federal Rule of Civil Procedure 37(a)(1). If the matter is still unresolved after meeting and conferring, then the parties shall jointly email [email protected] setting forth a brief summary of the dispute. The summary shall not exceed a few paragraphs nor include any exhibits.

The Court will schedule a conference to discuss the dispute. Any discovery motions filed without first contacting the Court to resolve the issue will be summarily denied. Stay of Discovery The Court will not stay discovery pending the ADR process. The Court will discuss requests for limited discovery deemed necessary to conduct a meaningful ADR session at the initial case management conference.

A stay may be sought by motion but will be granted only if the right to relief is clear or some other compelling reason exists. Limitations on Discovery The Court follows the Federal Rules of Civil Procedure on this matter and does not impose additional restrictions or limitations. Rule 11 Motions and Rule 37 Sanctions Motions Counsel are expected to comply with the Federal and Local Rules. The Court will issue a briefing order on any sanctions motion.

4. 5. 6. C. Preliminary Injunctions Either upon consent of the parties or referral by a District Court Judge, a briefing schedule will be issued, and a hearing date will be scheduled.

Requests for and the use of expedited discovery are considered on a case-by-case basis.

D. Trial Procedures 1.

Scheduling of Cases For cases in which the parties have consented to jurisdiction before a magistrate judge, a date certain will be given for trial following the resolution of any Rule 56 motion or, if none are filed, after the post- discovery status conference. The Court will enter a comprehensive pretrial order at that time. Vacation schedules and personal/professional obligation conflicts of the attorneys, parties and witnesses will be accommodated where possible. Should a conflict arise, counsel must notify the Court as soon as possible.

2. Pretrial Conferences 7 In some cases, the Court’s law clerk will conduct a preliminary pretrial conference. The following matters are generally discussed at the preliminary pretrial conference: (1) compliance with the pretrial order; (2) exhibit charts; (3) courtroom technology; and (4) counsel’s questions regarding trial procedure. The Judge will conduct a final pretrial conference approximately one week before the commencement of trial.

At the final pretrial conference, the Court will rule on witness lists, exhibits, motions in limine, jury instructions (to the extent feasible), voir dire, verdict slips and any other pretrial matters will be discussed, in detail, and generally ruled upon. Trial Hours/Days Generally, cases will be tried Monday through Friday, 9:00 a.m. to 5:00 p.m., with breaks when appropriate. The Court will meet with counsel before and after these appointed times to discuss trial/evidentiary issues, and before the afternoon session. Counsel must be available at 8:30 a.m. (or earlier if necessary to ensure that trial commences on time) and after the jury has been dismissed at the end of the trial day to meet with the Court concerning scheduling, trial problems, and to obtain advance rulings on evidentiary or other issues.

Motions In Limine The filing date for motions in limine will be set forth in the pretrial order. Motions in limine and supporting briefs are expected prior to trial and a date for filing the same will be set at the final pretrial conference. Generally, the Court will rule on these motions prior to trial. Counsel shall comply with Local Rule 16.1.C.4 with respect to all motions in limine.

3. 4. 5. Voir dire The filing date for proposed voir dire questions will be set forth in the pretrial order.

The Court or the Courtroom Deputy will conduct the voir dire. 6. Use of Courtroom Technology If the parties intend to use courtroom technology and require training or other information on its use, the parties may contact the Court’s Courtroom Deputy. The parties are welcome to contact Chambers to 7.

8. 9. schedule a time to visit the courtroom and review the available technology. Notetaking by Jurors The Court usually allows jurors to take notes unless counsel articulates a valid objection prior to the commencement of trial. Side Bars Side bars will be permitted when necessary, by permission of the Court.

Counsel should anticipate matters to be discussed outside of the jurors' presence and raise them either at the beginning or end of each trial day. Examination of Witnesses Out of Sequence Examination of a witness out of sequence is permitted, either within the party’s own case or within an opposing party’s case and on a showing of good cause or consent of all parties. 10. Opening Statements and Summations The Court may impose time limits on opening statements and closing arguments.

The Court will determine those limits at the final pretrial conference. Defense counsel may defer opening statements. 11. 12.

13. Examination of Witnesses or Argument by More than One Attorney Only one attorney for each party may conduct an examination of any one witness and may argue any one motion or point. Examination of Witnesses Beyond Direct and Cross Redirect and recross of a witness will be permitted but may not exceed the scope of the immediately preceding line of questions. Videotaped Testimony and Reading Deposition Testimony in Lieu of Live Testimony The use of videotaped testimony and reading deposition testimony into the record in lieu of live testimony are generally disfavored.

If a party intends to use videotaped testimony and/or read deposition testimony into the record, the party must file a motion in accordance with the pretrial order prior to the initial pretrial conference and show good cause as to why live testimony is not feasible. 14. Reading of Material into the Record The Court has no special practice regarding reading deposition testimony, stipulations and the like into the record. It will be considered on a case-by-case basis.

15. Exhibits All exhibits must be listed in the Pretrial Statements. Plaintiff(s) shall use numbers; defendant(s) shall use letters. The parties are expected to comply with Local Rule 16.1.C.5 by exchanging exhibits prior to the final pretrial conference, unless otherwise ordered by the Court, and should be prepared to indicate a position at the final pretrial conference with regard to the authenticity and admissibility of the opponent's exhibits.

All exhibits shall be marked before trial. Exhibits may be introduced out of sequence. Counsel shall give notice to opposing counsel and obtain the Court's approval in advance for use of any visual aid(s) or demonstrative exhibits during opening statements. Otherwise, visual aids are permitted during trial and should be marked and offered into evidence as with any other exhibit.

Counsel for each party will be expected to provide four (4) tabbed exhibit binders to the Court and one (1) binder to counsel for each opposing party in advance of trial. 16. Directed Verdict Motions The Court does not have any special requirements beyond those set forth in the Federal Rules of Civil Procedure. Motions may be made orally or in writing.

17. Jury Instructions and Verdict Forms The Court requires counsel to confer and submit a single set of agreed upon jury instructions and a proposed verdict form, and to submit to Chambers via [email protected] an electronic copy of said jury instructions and verdict form in Microsoft Word format. To the extent that the parties cannot agree on a particular instruction or form, the various versions proposed by the parties and/or any objections shall be included where appropriate in the document, placing competing versions of a given instruction one after the other, and objections to a given instruction immediately following the contested instruction. The date for filing same will be set in the pretrial order.

The Court will hold a charging conference at which time counsel will receive the final charge and verdict form to be given to the jury. 18. Proposed Findings of Fact and Conclusions of Law In any non-jury trial, the Court will order the parties to submit proposed findings of fact and conclusions of law. The parties are required to separately submit to the Court their respective proposed findings and conclusions in Microsoft Word format to [email protected].

19. Offers of Proof Offers of proof should not be required because the Court sets aside time before and after a trial day to discuss trial/evidentiary matters with counsel. Should the need arise during trial, however, the Court does not impose any restrictions. 20.

General Courtroom Rules Counsel shall conduct themselves with courtesy and civility at all times. The Court will not tolerate demonstrations of hostility, discrimination or bias of any kind. All parties and party representatives are also expected to conduct themselves in a similarly appropriate manner.

E. Jury Deliberations 1.

Written Jury Instructions The jury will be given a written copy of the jury instructions. 2. 3. Exhibits in the Jury Room All admitted exhibits will be given to the jury for use in deliberations, except those that could prove dangerous.

Jury Requests to Read Back Testimony or Replay Video During Deliberations Where appropriate, and after conferring with counsel, the Court will permit the reading back of testimony or replaying of video to the jury. 4. Jury Questions Jury questions must be in writing. The Court will confer with counsel and arrive at a satisfactory instruction/response.

5. 6. Availability of Counsel During Jury Deliberations Trial counsel need not remain in the courtroom during deliberations but must be available by telephone and able to return to the courthouse within a reasonably short period of time. Interviewing the Jury The Court will inform the jurors that they may speak to counsel but are not required to do so.

Counsel shall not approach any juror until the Court has met with and dismissed the members of the jury.

F. General 1.

Cases Referred to Magistrate Judge for Mediation and Settlement The Court requires that lead counsel and a representative of each party with full settlement authority, including a representative of any insurance company, attend all mediations and settlement conferences in person. It is counsel’s responsibility to ensure that the attending representative has full settlement authority. The Court will enter a more comprehensive scheduling order for those cases referred to it for mediation and settlement. 2.

Other Individual Practices and Procedures The attorneys, parties and witnesses must be civil and courteous to one another at all times. IV.

CRIMINAL CASES

Criminal cases before the Court are limited to petty offenses, misdemeanor charges and preliminary criminal proceedings (e.g., initial appearances, arraignments, preliminary hearings, detention hearings, etc.). Counsel must be well prepared and have conferred with their client prior to the scheduled criminal proceeding.