Trial Procedures; Procedures in Criminal Cases; Policies and Procedures for Scheduling and Motion; Report of Rule 26(f) Meeting; Order Governing Electronic Discovery

=== Trial Procedures ===

UNITED STATES DISTRICT COURT Eastern District of Pennsylvania JUDGE SAVAGE=S TRIAL PROCEDURES 1. Scheduling of Cases The Scheduling Order will set a date certain for trial or the date when the case will be placed in the trial pool. For cases in the trial pool, counsel must be prepared to commence trial upon 48 hours notice. 2. Voir Dire Counsel must discuss voir dire questions and resolve any differences the day before jury selection. If they cannot agree, counsel must advise the deputy clerk that the judge must rule upon the disputed issues. 3. Trial Objections and Sidebars Speaking objections are not permitted. Objections shall be made by reciting the appropriate rule number or a one word basis. Sidebar conferences are discouraged and are rarely permitted. Only unanticipated issues will necessitate a sidebar conference. 4. Motions in Limine Motions in limine must be filed by the deadline set in the Scheduling Order. Rulings upon such motions are usually made before or at the final pretrial conference. 5. Opening Statements and Summations Time limits on opening statements and summations are generally not fixed. However, depending upon the issues in the case and the length of the trial, time limits may be imposed. Rebuttal must not be a rehashing of closing argument. 6. Examination of Witnesses by More Than One Attorney Only one attorney for a party may examine the same witness or argue the same legal point. More than one attorney for a party may examine different witnesses or argue different legal points. 7. Offers of Proof Counsel must confer privately to resolve any unanticipated evidentiary issues that may arise during trial. Only if they are unable to reach agreement should counsel bring the matter to the deputy clerk=s attention at the beginning of the day or during an appropriate break when the jury is not present. 8. Videotaped Testimony testimony Counsel must discuss in advance of trial all objections to the presentation of videotaped their disagreements, they should present any outstanding disagreements at least ten days prior to the final pretrial conference by providing a transcript of the testimony with the challenged question and answer highlighted, and a list setting forth each objection by page and line numbers and the basis for the objection. If counsel cannot resolve to resolve all conflicts. The videotape must be edited prior to trial to eliminate pauses and speed-ups so there are no interruptions. Counsel must arrange with the deputy clerk a date and time before the trial date to test and learn to operate the courtroom equipment. 9. Reading of Material into the Record There is no special practice or policy for reading stipulations, pleadings or discovery material into the record. Reading of material into the record may be done in a manner agreed upon by Judge Savage and counsel. 10. Preparation of Exhibits At the final pretrial conference, the parties shall provide the Court with one copy of each exhibit and two copies of a schedule of exhibits which shall briefly describe each exhibit. At the trial, the parties must provide the court with an additional copy of each exhibit. Exhibits shall be tabbed in a three-ring binder containing all exhibits numbered consecutively. 11. Offering Exhibits into Evidence Exhibits are admitted into evidence at the close of each party=s case-in-chief and not during testimony or after the exhibit is identified. Counsel should review the exhibits in advance so that agreed upon exhibits can be admitted quickly and disputed exhibits ruled upon at the conclusion of the party=s case. Exhibits may be published to the jury at the end of the party=s examination of the witness or prior to a break. If the exhibit is necessary to explain the testimony, Judge Savage may permit it to be published during the testimony. Permission must be sought prior to the witness taking the stand. 12. Proposed Jury Instructions and Verdict Forms Counsel must meet and discuss proposed jury instructions for the purpose of submitting agreed-upon jury instructions and verdict forms. Proposed instructions should cover only the substantive issues regarding the elements of each cause of action and each defense. Basic instructions, such as the burden of proof, credibility and procedure, should not be submitted. Counsel are expected to cooperate in the preparation of the joint proposed instructions. Failure to cooperate in the process will result in the imposition of sanctions. Submitting a proposed point does not constitute a waiver of objection. Counsel are instructed to work on proposed instructions regardless of counsel=s position with respect to a point=s applicability. If the Court sustains an objection to a particular instruction, it will not be submitted to the jury. Objections to jointly submitted points will be discussed and ruled upon at the charging conference. If counsel cannot agree, proposed alternative instructions must be submitted with authority for each instruction. If a model jury instruction is used, the party submitting it shall state whether the proposed instruction is unchanged or modified. If a party modifies a model instruction, additions shall be underlined and deletions shall be placed in brackets. 13. Proposed Findings of Fact and Conclusions of Law In a non-jury trial, the parties shall file a stipulation of uncontested facts. Each party shall submit proposed findings of fact and conclusions of law. 14. Exhibits in the Jury Room After the jury has retired to deliberate, counsel shall review the exhibits to determine which exhibits will go out with the jury. If counsel cannot agree, they should request a ruling immediately after the jury retires to the deliberations room. 15. Availability of Counsel During Jury Deliberations Counsel must be available upon fifteen (15) minutes notice during jury deliberations. As a practical matter, this means that counsel must stay in or near the courthouse. 16. Interviewing the Jury After a verdict has been recorded and the jury has been discharged, counsel may request to interview jurors. The jurors are told that they are permitted to talk to counsel if they desire, but they need not do so. Counsel shall respect the jurors’ desire not to speak to them.

=== Procedures in Criminal Cases ===

UNITED STATES DISTRICT COURT Eastern District of Pennsylvania JUDGE SAVAGE=S PROCEDURES IN CRIMINAL CASES 1. Oral Argument and Motions Judge Savage will grant oral argument on motions if he believes it will assist him in deciding the motions. He considers and decides motions in limine prior to trial. 2. Pretrial Conferences Pretrial conferences in criminal cases are held only in complex cases or those involving several attorneys. 3. Pretrial Hearings Suppression, Starks and Daubert hearings are typically held at least two weeks prior to trial. The government is required to file proposed findings of fact and conclusions of law prior to the commencement of the hearing. The parties may request leave to supplement proposed findings of fact after the hearing. 4. Voir Dire Judge Savage conducts voir dire in criminal cases. Counsel may submit proposed voir dire questions. 5. Proposed Jury Instructions and Verdict Forms Each party must submit to the Court and serve on opposing counsel proposed points for charge and any proposed jury interrogatories no later than seven days prior to the trial date. Each point for charge and proposed jury interrogatory shall be numbered and on a separate sheet of paper identifying the name of the requesting party. Each proposed instruction must be submitted with authority. If a model jury instruction is used, the party submitting it shall state whether the proposed instruction is unchanged or modified. If a party modifies a model instruction, additions shall be underlined and deletions shall be placed in brackets. 6. Trial Memorandum At least one week prior to the trial date, the government must file a trial memorandum setting forth the essential elements of the offenses, the facts which it intends to present, the identity of each witness it intends to call, a statement of the substance of each witness= testimony and any legal issues. The defendant is not required to file a trial memorandum but may do so. 7. Guilty Plea Memorandum The government must submit a guilty plea memorandum at least two days prior to the change of plea hearing. The memorandum shall include the elements of each offense to which the defendant is pleading guilty and legal citations for the elements, the maximum statutory penalties for each offense, the terms of any plea agreement, and the factual basis for the plea. 8. Motions for Downward Departure A motion for downward departure, except a motion filed under ' 5K1.1 of the United States Sentencing Guidelines, must be filed two weeks prior to the sentencing date. The motion should include legal and factual support for the proposed departure. A government motion pursuant to ' 5K1.1 must be filed at least one week before sentencing. 9. Sentencing Memoranda Judge Savage requires the submission of sentencing memoranda by both the government and the defendant no later than one week before sentencing. The memorandum must set forth any legal authority relied upon by the party. One copy of each sentencing memorandum, motion and response shall be served on the opposing party, the Court (Chambers, Room 9614) and the United States Probation Office when the original is filed. If a defendant is responsible for restitution, the government must submit sufficient information in its sentencing memorandum to enable the Court to determine entitlement, the name and the address of each victim, the amount of loss for each victim, and documentary support for each amount. If liability for restitution is joint and several, the government shall itemize the restitution amount for which each defendant is responsible. 2

=== Policies and Procedures for Scheduling and Motion ===

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JUDGE TIMOTHY J. SAVAGE POLICIES AND PROCEDURES I. COMMUNICATIONS WITH CHAMBERS Written communications concerning any case must be by the filing of a pleading, motion, application, or other similar filing provided for in the Federal Rules of Civil Procedure or the Local Rules of Civil Procedure. Counsel shall not send copies of correspondence among and between counsel to the Court. Correspondence is permitted only in the following instances: (1) When there is an unanticipated personal matter concerning counsel, a party, a witness, or counsel’s immediate family, such as medical problems or other personal problems; or (2) To advise that a case has been settled. When a written communication concerning a case cannot timely address a problem, counsel may initiate necessary telephone communications with chambers. Deputy Clerk, Alex Eggert – 267-299-7480 II. INITIAL PRETRIAL CONFERENCE The Rule 26(f) meeting is not perfunctory. It is a meaningful and substantive discussion among professionals to formulate the proposed discovery plan required by the Rule and to discuss the parties’ factual and legal positions, and settlement. Topics addressed at the initial pretrial conference are those listed in Local Rule of Civil Procedure 16.1(b), and Federal Rule of Civil Procedure 16(b) and (c), the progress of self-executing disclosure under Federal Rule of Civil Procedure 26(a), discovery, the preservation and production of electronically stored information, settlement and mediation proposals, and facts regarding liability, damages and relief sought. Outstanding motions will not excuse the requirements of holding the meeting and submitting the plan. Parties who do not comply will have no voice at the scheduling conference and may be subject to sanctions. Lead trial counsel, not an associate, must attend the Rule 16 conference. Counsel shall have a thorough comprehension of the facts and shall be prepared to discuss all claims and defenses in detail, including settlement, and have authority from their clients to do so. Counsel shall be prepared to discuss the merits of any outstanding motions at the conference. Counsel moving for the pro hac vice admission of an attorney must file a motion setting forth the attorney’s admissions, the reason why the party desires the attorney to participate and why the attorney is especially qualified to do so. The form application provided by the Clerk is inadequate. If the motion does not comply with this requirement, it will be denied. III. DISCOVERY The Federal Rules of Civil Procedure call for voluntary, cooperative discovery in a timely manner. The information required to be disclosed pursuant to Fed. R. Civ. P. 26(a) is required to be exchanged no later than fourteen (14) days after the date of the Order scheduling the Rule 16 conference. Compliance with the Rules is mandatory. The parties are required to commence discovery immediately upon receipt of notice of the Rule 16 conference. Pending motions will not excuse counsel from proceeding with discovery. Counsel will be required to report on the progress of discovery at the Rule 16 conference. Discovery motions are routinely acted upon before a response is filed either with or without a telephone conference. When timely discovery is not forthcoming after a reasonable attempt has been made to obtain it, the party seeking the discovery may file a motion to compel. If the motion is based on the opposing party’s failure to timely file discovery responses, the motion will be granted. If the motion is for any other dispute, Judge Savage will consider the parties’ positions and rule on the motion in a telephonic conference the same or the next day. The motion must comply with Local Rule 26.1(f). The certification must state in detail what efforts were made to resolve the dispute. IV. MOTIONS PRACTICE A. Oral Argument Oral argument is not routinely scheduled. A party desiring oral argument may request it in the body of the motion or responsive pleading. B. Reply Briefs Reply briefs, addressing only issues raised in the brief in opposition and not repeating arguments in the brief, may be filed within seven days of service of the opponent’s brief in opposition and shall be limited to ten pages. No further briefs may be filed. V. FINAL PRETRIAL CONFERENCE In the pretrial memoranda, counsel must detail the substance of the testimony of each witness. Identifying a witness as giving testimony on liability and/or damages is insufficient. The parties shall provide the Court with one copy of each exhibit to which there is an objection and two copies of a schedule of exhibits which shall describe each exhibit. Exhibits shall be arranged and tabbed in a three-ring binder. One of the goals of the final pretrial conference is to resolve all evidentiary issues to avoid delay at trial and to provide counsel with advance notice of evidentiary requirements. Therefore, rulings on all outstanding motions and objections to witnesses and exhibits will be made at the final pretrial conference. Counsel shall be prepared to state objections to witnesses and exhibits, and to respond to opposing counsel’s objections. It is expected that counsel discussed and attempted to resolve all objections to exhibits and testimony prior to the final pretrial conference, leaving only those objections the parties could not resolve. Any party intending to use depositions, written or video, at trial must notify all other parties in the pretrial memorandum. Objections to deposition testimony shall be made prior to the pretrial conference in writing, setting forth the page and line numbers of the challenged testimony and a clear statement for the basis of the objection. The objecting party must provide the Court with a copy of the deposition transcript with the challenged testimony highlighted.

=== Report of Rule 26(f) Meeting ===

FORM IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA v. : : : : CIVIL ACTION NO. REPORT OF RULE 26(f) MEETING In accordance with Federal Rule of Civil Procedure 26(f), counsel for the parties conferred on (date) and submit the following report of their meeting for the court=s consideration: 1. Discussion of Claims, Defenses and Relevant Issues You should assume that the court has read the complaint and is familiar with the claims. However, the facts supporting those claims and defenses are unknown. Therefore, counsel shall set forth concisely the factual background that the parties contend support their claims and defenses. Summarize your discussion of primary issues, threshold issues and those issues on which the parties will need to conduct discovery. Identify what information each party needs in discovery as well as when and why. Also indicate likely motions and their timing. 2. Informal Disclosures State the parties= agreement on timing, form and scope of informal disclosures. Specifically identify not only the information listed in Rule 26(a)(1), but any additional information the parties agree to disclose informally. 1 Keep in mind that self-executing discovery must not be delayed until the pretrial conference. If the parties have not made the Rule 26(a) initial disclosures within the time required by the Court=s Order scheduling the pretrial conference, they should explain why not. 3. Formal Discovery Indicate nature, sequence and timing of formal discovery, as well as any need to conduct discovery in phases to prepare for the filing of motions or for settlement discussions. Specifically delineate what discovery will be conducted formally. The discovery deadline should normally be no more than 120 - 150 days from the date of the Rule 16 pretrial conference. If the parties believe there are compelling reasons for a longer period of discovery, state them. The parties are required to address procedures to preserve electronically stored information, to avoid inadvertent privilege waivers, and to determine the form in which electronic information will be produced. The cost of producing the information must be discussed. 4. Electronic Discovery It is expected that the parties will reach an agreement on how to conduct electronic discovery. In the event the parties cannot reach such an agreement before the Rule 16 scheduling conference, the court will enter an order incorporating default standards. The default order can be viewed at www.paed.uscourts.gov. The parties shall discuss the parameters of their anticipated e-discovery at the Rule 26(f) conference and shall be prepared to address e-discovery at the Rule 16 2 scheduling conference with the court. 5. Expert Witness Disclosures Indicate agreement on timing and sequence of disclosure of the identity and anticipated testimony of expert witnesses, including whether depositions of experts will be needed. The parties should expect that the court requires expert reports to be exchanged simultaneously. If there are compelling reasons to stagger the production of expert reports, state them. 6. Early Settlement or Resolution The parties must familiarize themselves with Local Rule 53.3 before responding. Recite the parties= discussion about early resolution through ADR, motion or otherwise explain what steps were taken by counsel to advise the client of alternative dispute resolution options. Explain any decision not to seek early resolution and what mediation options the parties may consider and when mediation would be appropriate. 7. Trial date If a date certain is requested, state the reasons. Generally, if requested, a firm trial date will be scheduled. 8. Other Matters Indicate discussion and any agreement on matters not addressed above. ___________________________________ (Attorney Signature) ___________________________________ (Attorney Signature) 3

=== Order Governing Electronic Discovery ===

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA v. : : : : : CIVIL ACTION NO. ORDER GOVERNING ELECTRONIC DISCOVERY NOW, this day of , 20__, in anticipation of the Rule 16 conference, it is ORDERED as follows: 1. Introduction. In the event the parties cannot reach an agreement on how to conduct electronic discovery ("e-discovery") before the Rule 16 scheduling conference, the following default standards shall apply until such time, if ever, the parties conduct e-discovery on a consensual basis. 2. Exchange of e-discovery materials. Prior to the Rule 26(f) conference, the parties shall exchange the following information: a. a list of the most likely custodians of relevant electronic materials, including a brief description of each person's title and responsibilities; and, b. a list of each relevant electronic system that has been in place at all relevant times and a general description of each system, including the nature, scope, character, organization, and formats employed in each system. c. the parties should also include other pertinent information about their electronic documents and whether those electronic documents are of limited accessibility, that is, those created or used by electronic media no longer in use, maintained in redundant electronic storage media, or for which retrieval involves substantial cost; d. the name of the individual responsible for the party's electronic document retention policies ("the retention coordinator"); e. a general description of the party's electronic document retention policies; f. the name of the individual who shall serve as the party's "e- discovery liaison"; and, g. A description of any problems reasonably anticipated to arise in connection with e-discovery. To the extent that the state of the pleadings does not permit a meaningful discussion of the above issues by the time of the Rule 26(f) conference, the parties shall either agree on a date by which this information will be mutually exchanged or submit the issue for resolution by the court at the Rule 16 scheduling conference. 3. E-discovery conference. The parties shall discuss the parameters of their anticipated e-discovery at the Rule 26(f) conference and shall be prepared to address e- discovery at the Rule 16 scheduling conference with the court. 4. E-discovery liaison. To promote communication and cooperation between the parties, each party shall designate a single individual through whom all e-discovery requests and responses are made ("the e-discovery liaison"). Regardless of whether the e-discovery liaison is an attorney (in-house or outside counsel), a third party consultant, or an employee of the party, he or she must be: a. familiar with the party's electronic systems and capabilities in order to explain these systems and answer relevant questions; b. knowledgeable about the technical aspects of e-discovery, 2 including electronic document storage, organization, and format issues; c. d. prepared to participate in e-discovery dispute resolutions; and, responsible for organizing the party's e-discovery efforts to insure consistency and thoroughness and, generally, to facilitate the e-discovery process. 5. Search methodology. If the parties intend to employ an electronic search to locate relevant electronic documents, the parties shall disclose any restrictions as to scope and method which might affect their ability to conduct a complete electronic search of the electronic documents. The parties shall reach agreement as to the method of searching, and the words, terms, and phrases to be searched with the assistance of the respective e-discovery liaisons, who are charged with familiarity with the parties' respective systems. The parties also shall reach agreement as to the timing and conditions of any additional searches which may become necessary in the normal course of discovery. To minimize the expense, the parties may consider limiting the scope of the electronic search (e.g., time frames, fields, document types). 6. Timing of e-discovery. Discovery of electronic documents shall proceed in the following sequenced fashion: a. after receiving requests for document production, the parties shall search their documents, other than those identified as limited accessibility electronic documents, and produce responsive electronic documents in accordance with Fed. R. Civ. P. 26(b)(2); b. electronic searches of documents identified as of limited accessibility shall not be conducted until the initial electronic document search has been completed; 3 c. requests for information expected to be found in limited accessibility documents must be narrowly focused with a factual basis supporting the request; and, d. on-site inspections of electronic media under Fed. R. Civ. P. 34(b) shall not be permitted, absent exceptional circumstances where good cause and specific need have been demonstrated. 7. Format. If, during the course of the Rule 26(f) conference, the parties cannot agree to the format for document production, electronic documents shall be produced to the requesting party as image files (e.g., PDF or TIFF). When the image file is produced, the producing party must preserve the integrity of the electronic document's contents, i.e., the original formatting of the document, its metadata and, where applicable, its revision history. After initial production in image file format is complete, a party must demonstrate particularized need for production of electronic documents in their native format. 8. Retention. Within the first thirty (30) days of discovery, the parties shall negotiate an agreement that outlines the steps each party shall take to segregate and preserve the integrity of all relevant electronic documents. In order to avoid later accusations of spoliation, a Fed. R. Civ. P. 30(b)(6) deposition of each party's retention coordinator may be appropriate. The retention coordinators shall: a. take steps to ensure that e-mail of identified custodians shall not be permanently deleted in the ordinary course of business and that electronic documents maintained by the individual custodians shall not be altered; and, b. provide notice as to the criteria used for spam and/or virus filtering 4 of e-mails and attachments; documents filtered out by such systems shall be deemed nonresponsive so long as the criteria underlying the filtering are reasonable. Within seven (7) days of identifying the relevant document custodians, the retention coordinators shall implement the above procedures and each party's counsel shall file a statement of compliance. 9. Privilege. Electronic documents that contain privileged information or attorney work product shall be immediately returned if the documents appear on their face to have been inadvertently produced or if there is notice of the inadvertent production. All copies shall be returned or destroyed by the receiving party. 10. Costs. Generally, the costs of discovery shall be borne by each party. However, the court will apportion the costs of e-discovery upon a showing of good cause. Rev. 022818 _________________________ TIMOTHY J. SAVAGE, J. 5