Hearings on Motions

The judicial officer may require or permit hearings on motions and may permit attendance by telephone.

87 III.

LOCAL RULES OF CRIMINAL PROCEDURE

Applicability of General Rules LR Cr P 1.01. Applicability. In all criminal proceedings, the General Rules of this Court shall be followed insofar as they are applicable. All rights and duties contained in these Local Rules of Criminal Procedure apply equally to all parties.

All disclosure deadlines and pretrial dates set forth herein are subject to modification by court order to allow for compliance with the Speedy Trial Act and trial dates set by the district judges. LR Cr P 2.01. Grand Jury. Pursuant to the Amended Jury Plan agreed to and entered on February 27, 2009, grand jurors are empaneled in each of the four active points of holding court within the district (i.e., Clarksburg, Elkins, Martinsburg and Wheeling).

The jurors drawn from those counties assigned to the four active points of holding court typically review evidence to determine whether to issue indictments for crimes allegedly committed in their respective counties. Occasionally, due to issues that may arise and affect the statute of limitations, the Speedy Trial Act, 18 U.S.C. § 3161, et seq., criminal complaints and other matters, it may be necessary for the United States Attorney to present matters to a grand jury in one point of holding court that arose from another point of holding court. LR Cr P 10.01. Duties of the Magistrate Judge.

(a) Jurisdiction: The United States Magistrate Judges in this judicial district are 88 hereby specially designated and, with the consent of the parties, shall have jurisdiction to try persons accused of, and sentence persons convicted of, misdemeanors committed within this judicial district, in accordance with the provisions of 18 U.S.C. § 3401, Fed. R. Crim. P. 58 and 28 U.S.C. § 636. (b) Arraignments: All magistrate judges are specially designated to handle arraignments in criminal cases pursuant to Fed. R. Crim. P. 10, including acceptance of “not guilty” pleas; scheduling of motions hearings, pretrial conferences and trials; and issuance of bench warrants for the arrest of defendants who fail to appear for arraignment. (c) Waiver of Presence at Arraignment: Defendants may waive the right to be present at their arraignment. Waivers must be submitted in writing and signed by the defendant not later than four (4) days before the arraignment to permit the Court or the government sufficient time to order the defendant’s appearance if required.

No hearing shall be necessary to determine the providence or voluntariness of the defendant’s written, signed waiver of the right to appear at the arraignment. (d) Additional Duties: As an additional duty under 28 U.S.C. § 636(c), all magistrate judges are designated to take pleas in felony criminal cases under Fed. R. Crim. P. 11. With written consent of the parties, the magistrate judge may take the plea and enter it on the record. Such pleas, conducted with the consent of the parties, do not require de novo review by the district judge if no exceptions are made to the recommendation of the magistrate judge.

See United States v. Osborne, 345 F.3d 281 (4th Cir. 2003). If a defendant does not consent to a magistrate judge taking the plea, 89 the magistrate judge may conduct the proceeding and make a recommendation to the district judge. Discovery LR Cr P 16.01.

Pretrial Discovery and Inspection. (a) Do Not File Discovery With the Court: Parties shall not file discovery with the Court. Parties shall serve discovery on other parties to the criminal action and will file with the Court only the Certificate of Service. (b) Standard Discovery Request Form: Pursuant to Fed. R. Crim. P. 16(a), counsel for the defendant may request standard discovery at arraignment or upon filing of an information or indictment.

(c) Reciprocal Discovery: If counsel for the defendant requests discovery under Fed. R. Crim. P. 16(a), the defendant must provide reciprocal discovery to the government under Fed. R. Crim. P. 16(b). (d) Time for Government Response: The government must provide the standard discovery under Fed. R. Crim. P. 16(a) within seven (7) days of the standard discovery request. (e) Reciprocal Discovery Response: The defendant must provide all reciprocal discovery due to the government within seven (7) days of receiving discovery materials from the government. (f) Defense Discovery Request Deemed Speedy Trial Motion: Any request made by the defendant pursuant to this Rule will be deemed a motion under the provisions of 90 the Speedy Trial Act, 18 U.S.C. § 3161, et seq.

(g) Duty to Supplement: All duties of disclosure and discovery under this Rule are continuing. The parties must produce any additional discovery as soon as they receive it, and in no event later than the time for such disclosure as required by law, rules of criminal procedure or order of the Court, and without the necessity of further request by the opposing party. (h) Modification for Complex Cases: (1) At any time after arraignment, the Court, on its own or upon motion by any party, and for good cause shown, may designate a case as complex. (2) In all cases designated as complex, not later than seven (7) days following such designation, the parties shall confer to develop a Proposed Complex Case Schedule addressing the following: (i) the scope, timing and method of the disclosures required by federal statute, rule or the United States Constitution, and any additional disclosures that will be made by the government; (ii) whether the disclosures should be conducted in phases, and the timing of such disclosures; (iii) discovery issues and other matters about which the parties agree or disagree, and the anticipated need, if any, for motion practice to resolve discovery disputes; (iv) proposed dates for the filing of pretrial motions; and (v) stipulations with regard to the exclusion of time for speedy trial 91 purposes under 18 U.S.C. § 3161, et seq.

(3) The parties shall file the Proposed Complex Case Schedule no later than seven (7) days after conferring under this section. (4) As soon as practicable after the filing of the Proposed Complex Case Schedule, the Court shall enter an order fixing the schedule for discovery, pretrial motions and trial, and determining exclusions of time under 18 U.S.C. § 3161, et seq., or shall conduct a pretrial conference to address unresolved scheduling and discovery matters. LR Cr P 16.02. Declination of Disclosure.

If, in the judgment of the United States Attorney, it would not be in the interests of justice to make any one or more disclosures set forth in LR Cr P 16.01 and requested by the defendant’s counsel, the United States Attorney may decline disclosure. A declination of any requested disclosure shall be in writing, set forth specific reasons therefor, be directed to the defendant’s counsel, signed personally by the United States Attorney or the Assistant United States Attorney assigned to the case and shall specify the types of disclosures that are declined. If the United States Attorney invokes declination, the United States Attorney or the Assistant United States Attorney assigned to the case shall immediately notify the magistrate judge for the purpose of expediting a hearing thereon. LR Cr P 16.03.

Additional Discovery or Inspection. If additional discovery or inspection is sought, the defendant’s attorney shall confer with the appropriate Assistant United States Attorney within fourteen (14) days of 92 the arraignment (or such later time as may be set by the Court for the filing of pretrial motions) to satisfy the requests in a cooperative atmosphere without recourse to the Court. The request may be oral or written, and the United States Attorney shall respond in like manner. In the event the defendant thereafter moves for additional discovery or inspection, the motion shall be filed within the time set by the Court for the filing of pretrial motions.

The motion shall contain: (a) a statement that the prescribed conference was held; (b) the date of the conference; (c) the name of the Assistant United States Attorney with whom the conference was held; (d) a statement that an agreement could not be reached concerning the discovery or inspection that is the subject of the defendant’s motion; and (e) the pertinent facts and law bearing upon the issues raised by the motion, as required by LR Cr P 47.01. LR Cr P 16.04. Additional Evidence. If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered that is subject to inspection or discovery under the Federal Rules of Criminal Procedure, this Local Rule, court order or other judicial or statutory obligation, that party shall promptly notify the other party, or opposing counsel, and the Court of the existence of the additional evidence or material.

93 LR Cr P 16.05. Exculpatory Evidence. Exculpatory evidence, as defined in Brady v. Maryland, 373 U.S. 83 (1963), as amplified by United States v. Bagley, 473 U.S. 667 (1985), shall be disclosed at the time the disclosures described in LR Cr P 16.01 are made. Additional Brady material not known to the government at the time of its disclosure of other discovery material, as described above, shall be disclosed immediately upon discovery in writing setting forth the material in detail.

LR Cr P 16.06. Rule 404(b), Giglio and Roviaro Evidence. No later than fourteen (14) days before trial, the government shall disclose notice of any evidence under Federal Rule of Evidence 404(b), Giglio material and notice of any Roviaro witness not previously turned over in discovery. See Giglio v. United States, 405 U.S. 150 (1972); Roviaro v. United States, 353 U.S. 53 (1957).

LR Cr P 16.07. List of Witnesses. No later than fourteen (14) days before trial, counsel for each party shall file, with service on counsel of record (via CM/ECF or other acceptable means), a list of probable and possible witnesses (identified as such). The witness list should not include whether the defendant will testify.

The parties shall include in the list the full name and address of each witness and a brief statement of the subject matter to be covered by each witness. Expert witnesses and records custodians shall be expressly identified. “Witnesses,” as used in this paragraph, mean probable and possible witnesses, including experts and records custodians, which the parties intend to call in their cases-in-chief. 94 LR Cr P 16.08.

List of Trial Exhibits. No later than fourteen (14) days before trial, counsel for each party shall file, with service on opposing counsel (via CM/ECF or other acceptable means), a list of exhibits to be offered during trial. In addition, counsel for each party shall number the listed exhibits with evidence tags available from the Clerk of Court and shall exchange a complete set of marked exhibits with opposing counsel (except for large or voluminous items or exhibits that cannot be reproduced easily). LR Cr P 16.09.

Protective and Modifying Orders. Upon a sufficient showing, the Court may at any time order that discovery, inspection or disclosure be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by a party, the Court may permit the party to make the showing, in whole or in part, in the form of a written statement to be inspected by the Court alone. Upon written request, either party may be entitled to an evidentiary hearing on this issue.

If the Court enters an order granting relief following an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the Court to be made available to the appellate court in the event of an appeal. LR Cr P 16.10. Failure to Comply With Discovery. If, at any time during the course of the proceedings, it is brought to the Court’s attention that a party has failed to comply with LR Cr P 16, the Court may order the party to permit the discovery or inspection, grant a continuance, prohibit the party from introducing evidence not disclosed or enter any other order as it deems just under the 95 circumstances, up to and including dismissal of the indictment with prejudice.

The Court may specify the time, place and manner of making the discovery, inspection or disclosure, and may prescribe such terms and conditions as are just. LR Cr P 16.11. Continuing Disclosure. Any duty of disclosure or discovery is a continuing one.

Up to and including the end of trial, all parties shall immediately produce any information which has been subsequently acquired. LR Cr P 16.12. Effect of Disclosure by the Government. Any disclosure filed by the government shall be considered as relief sought by the defendant and granted by the Court unless the defendant files a pleading within five (5) days of arraignment stating that he or she is refusing and not seeking such disclosures pursuant to Fed. R. Crim. P. 16.

Motions in Limine LR Cr P 24.01. Motions in Limine, Jury Instructions and Voir Dire. Ten (10) days before the pretrial conference, all motions in limine (which must be limited to matters actually in dispute), jury instructions and voir dire shall be filed by counsel with service on opposing counsel, and responses filed at least one (1) day before the pretrial conference. If no pretrial conference is conducted, then all motions in limine, jury instructions and voir dire (which must be limited to matters actually in dispute) shall be filed by counsel, with service on opposing counsel, seven (7) days before trial.

Pursuant to Fed. R. Cr. P. 47, any responses are due at least one (1) day 96 before trial. Petition for Disclosure of Presentence, Pretrial or Probation Records and Guideline Presentence Reports LR Cr P 32.01. Disclosure of Presentence Reports (a) Disclosure: Any disclosure of the presentence report to the defendant, defendant’s counsel, attorney for the government or any party other than the Court shall not include any recommendation as to sentencing.

(b) Time: The Court may modify the time requirements of Fed. R. Crim. P. 32(e)(2) for good cause, but may not, without the defendant’s consent, reduce the thirty-five (35) day period from the initial disclosure of the presentence report until the sentencing hearing. (c) Probation Officer Duties: The probation officer shall inform the Court of the date of the initial presentence report disclosure to the parties, after which a sentencing hearing will be scheduled. In the alternative, the Court may set a date when the presentence report will be initially disclosed, after which time the sentencing hearing will be scheduled. The presentence report shall be deemed to have been disclosed: (1) when a copy of the report is physically delivered to the defendant, the defendant’s counsel and the attorney for the government; (2) three (3) days after a copy of the presentence report is mailed to the defendant, counsel for the defendant and the attorney for the government; or (3) three (3) days after a copy of the presentence report is electronically sent in a secure manner to the defendant, counsel for the defendant and the attorney for 97 the government.

(d) Objections: Within fourteen (14) days after receiving the presentence report, counsel may provide to the probation officer written objections thereto, and shall provide a copy to opposing counsel. Counsel shall not, however, file objections to the presentence report electronically in CM/ECF or with the Clerk’s Office in any manner. (e) No Objections Form: Counsel shall not file the “no objections” form with the Court. If counsel provides a “no objections” form to the probation office, counsel must also provide a copy to opposing counsel.

Nonetheless, counsel shall not file the form with the Court either electronically or in paper. (f) Sentencing Memoranda: The Court will accept sentencing memoranda received in the Clerk’s Office no later than three (3) days before the sentencing hearing. This three (3) day time period shall exclude holidays and weekends. To file a sentencing memorandum with the Court, counsel may present the document for filing to the Clerk’s Office in person, via mail, or fax, to be filed under seal.

In the alternative, counsel may file the sentencing memorandum in CM/ECF using the “Sentencing Memorandum” event, which is a sealed event. Regardless of the means of transport, the sentencing memorandum must be received by the deadline. (g) Presentence Report After Sentencing: When a term of imprisonment is imposed during a trial or hearing on revocation of supervision, the probation officer shall forward the presentence report to the United States Marshals Service and the Clerk of Court, but shall not, under any circumstance, file the presentence report on the docket via CM/ECF. The Clerk of Court shall file the presentence report on CM/ECF under 98 seal to assure its confidentiality.

Immediately upon receiving the presentence report, the United States Marshals Service shall forward it, along with the United States Marshals Service designation form and the judgment and commitment order, to the Bureau of Prisons. The presentence report will not be opened by anyone other than the Bureau of Prisons, except by order of the Court. LR Cr P 32.02. Disclosure of Records or Testimony.

Except as otherwise provided, no confidential records of the Court maintained by the probation office, including presentence reports, pretrial services records, probation records or testimony, shall be disclosed or provided unless a written application is made to the Court in compliance with the Rules for Disclosure adopted by the Judicial Conference of the United States in March of 2003. No disclosure shall be made or testimony provided until an order is entered. However, the probation officer shall release necessary probation records to other federal, state, county and municipal law enforcement agencies, as required by 18 U.S.C. § 4042, without petitioning the Court or obtaining a court order directing the disclosure of those records. The probation officer shall immediately provide the Court with notice of the disclosure.

When a demand for a disclosure of presentence records, pretrial services records, probation records or testimony is made to a probation officer by subpoena or other judicial process, the Chief Probation Officer or Deputy Chief Probation Officer shall request an order from the sentencing judge . The probation officer shall make no disclosure until an order is entered. 99 Videoconference in Criminal Cases LR Cr P 43.01. Matters That May Be Conducted by Videoconference.

In criminal proceedings, the Court may use video telecommunications to conduct: (a) Initial appearances pursuant to Fed. R. Crim. P. 5(a), with the consent of the defendant; (b) Arraignment pursuant to Fed. R. Crim. P. 10, with the consent of the defendant; (c) Hearings to determine whether probable cause exists to revoke pretrial release, with the consent of the defendant; (d) Hearings to determine whether probable cause exists to revoke supervised release, with the consent of the defendant; (e) Any postconviction proceedings under 28 U.S.C. §§ 2254 or 2255 or any prisoner case under 42 U.S.C. § 1983; (f) The taking of a plea of guilty to a misdemeanor charge; (g) Detention hearings with the consent of the defendant; (h) Returns by the grand jury; (i) Removal hearings; (j) Final pretrial conferences; and (k) Any other proceeding in which the parties consent. 100 Deadlines LR Cr P 45.01. Deadlines. The deadlines set forth in LR Cr P 16.07, 16.08 and 47.01 are deadlines for hand delivery, delivery by fax or electronic delivery via CM/ECF.

If the items required to be served on opposing counsel are served by mail, the deadline for mailing shall be three (3) days earlier than the deadline for hand delivery, delivery by fax, or electronic delivery via CM/ECF. All deadlines contained in this Rule may be shortened or lengthened sua sponte or by the Court on motion and for good cause shown to the satisfaction of the Court. Any party, including the government, may be relieved from the performance of any of the obligations described in this Rule, in advance of any applicable deadline, upon motion and for good cause shown. Good cause may include, but is not limited to, the safety or security of witnesses or protection of the identity of informants.

Motions LR Cr P 47.01. Motions. (a) Pretrial Motions: Unless otherwise ordered, all motions, including motions for a bill of particulars under Fed. R. Crim. P. 7(f), shall be filed within fourteen (14) days after receipt by defense counsel of LR Cr P 16.01 materials unless the Court, for good cause shown, extends the time upon written application made within the fourteen (14) day period. Such application shall set forth the grounds upon which the motion is made and shall be served on the opposing party.

101 All pretrial motions and accompanying memoranda shall contain the reason and legal support for granting the motion. Within seven (7) days of service, the opposing party shall file a response to all such motions with legal support or memoranda. All pretrial motions, responses and memoranda shall be filed with the Court and served upon all other counsel of record and any person appearing pro se. Pretrial motions, responses and memoranda shall cite reasons and provide points of authority and legal support, either in the body or in a separate brief, when their complexity requires more than a short statement of authorities.

(b) Post-trial Motions: Unless the court extends the time, all post-trial motions shall be filed within fourteen (14) days from the return of the verdict by the jury or the Court. Unless the Court extends the time, the non-moving party shall file a response within fourteen (14) days following the filing of post-trial motions. Continuance of Trial LR Cr P 50.01. Continuances.

The Court will grant a continuance of a trial date, hearing or deadline only for good cause. When a party requests a continuance, that party must first meet and confer with all other parties in an attempt to reach an agreement as to three (3) possible non-consecutive dates to which the trial date, hearing or deadline may be continued. If an agreement is reached, the moving party must specify the three (3) possible non-consecutive dates within the motion to continue. If the parties cannot reach an agreement, then each party must advise the Court of their suggested dates.

102 If no agreement to continue can be reached and the party requesting the continuance is relying on the Speedy Trial Act, that party must provide the provision of the Speedy Trial Act in its motion to continue. Forfeiture of Collateral in Lieu of Appearance for Certain Misdemeanor Offenses LR Cr P 58.01. Forfeiture of Collateral. (a) Posting Collateral: Pursuant to Fed. R. Crim. P. 58(d)(1), a person charged with certain petty offenses, as defined in 18 U.S.C. § 19 and described in a schedule of collateral offenses that will be published and announced by court order, may, in lieu of an appearance, post collateral in the amount indicated for the offense, waive appearance before a United States Magistrate Judge and consent to forfeiture of collateral.

The schedule of collateral offenses will also describe certain petty offenses that require a mandatory appearance before a United States Magistrate Judge. The current schedule of collateral offenses will be reflected by the latest order appearing on the court docket. The Clerk of Court will distribute copies of the order to all offices, agencies and individuals involved in the forfeiture of collateral program and shall make copies available upon request. (b) Petty Offense: The provisions of this Rule do not create or otherwise define an offense.

This Rule applies to petty offenses that have otherwise been created or defined by federal statutes, regulations or applicable state statutes lawfully assimilated by virtue of 18 U.S.C. § 13, which are committed within the jurisdiction of the United States District Court for the Northern District of West Virginia. 103 (c) Arrest: Nothing contained in this Rule shall prohibit a law enforcement officer from arresting a person for committing any offense, including those for which collateral may be posted and forfeited, and requiring the person charged to appear before a United States Magistrate Judge or, upon arrest, immediately taking the person charged before a United States Magistrate Judge. (d) Failure to Post Collateral: If a person charged with a petty offense not requiring a mandatory appearance fails to post and forfeit collateral, the Court shall issue a notice directing the defendant to appear before a United States Magistrate Judge and shall impose any penalty within the limits established by law upon conviction, including fine, imprisonment or probation. (e) Collateral Posted: If collateral is posted for any offense in which forfeiture of collateral is authorized by this Rule, the collateral shall be forfeited to the United States and shall signify that the defendant neither contests the charge nor requests a hearing.

Such action shall be tantamount to a finding of guilty and the defendant shall be deemed convicted of any offense for which collateral is paid and forfeited. (f) Violation Notices: The Clerk of Court shall establish a procedure for the processing of violation notices, citations and collateral. The procedure may include use of automated facilities located in other United States District Courts. (g) Certification of Record of Traffic Violations: Either the Clerk of Court or United States Magistrate Judge shall certify the record of any traffic violation conviction, as required by applicable state law, to the proper state authority.

(h) Non-Collateral Forfeiture Cases: No collateral forfeiture will be permitted for 104 the following violations: (1) Offenses denominated in the schedule of collateral offenses for which appearance is mandatory; (2) Offenses resulting in an accident with personal injury or property damage in excess of $500.00; or (3) Subsequent offenses not arising from the same facts or sequence of events that resulted in the original charges. 105 IV.

LOCAL RULES OF PRISONER LITIGATION PROCEDURE

All litigation brought in the Northern District of West Virginia by, or on behalf of, incarcerated individuals shall be governed by the Rules and Procedures set forth herein. Part 1 - General Provisions LR PL P 1. Scope. These Rules shall govern the procedure for the filing of the following actions by, or on behalf of, prisoners in the United States District Court for the Northern District of West Virginia: (a) Petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (common law habeas corpus); (b) Petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (state prisoner attacking conviction or sentence); (c) Motions to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (federal prisoner attacking conviction or sentence); (d) State civil rights complaints pursuant to 42 U.S.C. § 1983 (prisoner alleging a constitutional deprivation under color of state law); (e) Federal civil rights complaints filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (prisoner alleging a constitutional deprivation under color of federal law); (f) Complaints filed pursuant to the Federal Tort Claims Act; and (g) Any other civil action filed in the Northern District of West Virginia by an incarcerated person, or on behalf of an incarcerated person.

106 These Rules are intended to supplement the Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure, the Rules Governing Section 2254 Cases in the United States District Courts (“Section 2254 Rules”) and the Rules Governing Section 2255 Proceedings in the United States Districts Courts (“Section 2255 Rules”) promulgated by the United States Supreme Court. Except to the extent that they are inconsistent with these Local Rules of Prisoner Litigation Procedure, the LR Gen P and LR Civ P are applicable to these proceedings. LR PL P 2. Prisoner Cases Assigned to Magistrate Judges.

All petitions, applications, complaints and motions to vacate or modify sentences filed by, or on behalf of, prisoners are assigned to the magistrate judges. The magistrate judges are authorized to consider the record and do all things proper to recommend the disposition of any dispositive motions filed in these actions and to decide any nondispositive motions, including, without limitation, conducting a hearing and entering into the record a written order setting forth the disposition of the motions or recommendation for disposition. LR PL P 3. Pro Se Prisoner Petitions.

Applications, Motions and Complaints are to be Filed on Court-Approved Forms. LR PL P 3.1. Generally. All pro se prisoner petitions, applications, complaints and motions to vacate or modify sentences must be submitted on the designated forms approved by this Court and signed by the prisoner under penalty of perjury.

LR PL P 3.2 Applications to Proceed In Forma Pauperis. (a) Application and Required Documentation: In the event that a prisoner 107 believes he or she cannot afford the filing fee for an action covered by these Rules, he or she must file an Application to Proceed Without Prepayment of Fees and Affidavit, on the form provided by the Court, requesting permission to proceed in forma pauperis. A certified Prisoner Trust Account Report, signed by an authorized official from the institution where the prisoner is confined must also be filed, together with ledger sheets from the preceding six months. In addition, a Consent to Collection of Fees from Trust Account must be filed in all cases other than habeas petitions.

(b) Eligibility: A prisoner shall be entitled to proceed in forma pauperis if the prisoner’s financial affidavit or certified trust account statement, or both, demonstrates that the prisoner is unable to pay or prepay for the costs of the action and the Court determines that the prisoner has not deliberately depleted his or her assets in order to become eligible for in forma pauperis status. (c) Rescission of Leave to Proceed In Forma Pauperis: The Court may, either on its own or on the motion of any party, review and rescind, wholly, or in part, leave to proceed in forma pauperis if the prisoner who was granted leave becomes capable of paying the full filing fee, is found to have willfully misstated information in the Application or for any other lawful ground. (d) Requirements for In Forma Pauperis Applicants: The specific procedures required for prisoners seeking leave to proceed in forma pauperis in habeas actions are set forth below in LR PL P 17. The specific procedures required for prisoners seeking leave to proceed in forma pauperis in all other civil actions are set forth below in LR PL P 25.

108 LR PL P 3.3. Obtaining Copies of the Local Rules of Prisoner Litigation. A prisoner who wishes to obtain a copy of the Local Rules of Prisoner Litigation may do so by sending a written request to: Office of the Clerk of Court, P.O. Box 471, Wheeling, WV 26003, ATTENTION: INMATE LITIGATION CLERK. The following items must be included with the request: (a) A letter requesting a copy of the Local Rules of Prisoner Litigation and (b) A large (at least 8 ½ by 11 inch) self-addressed envelope.

Subsequent requests by any prisoner for additional copies of the Local Rules of Prisoner Litigation must be accompanied by a check in the amount of $5.00, made payable to the Clerk of the United States District Court. LR PL P 3.4. Use of the Court-Approved Forms. (a) Pro se petitions, applications, complaints and motions to vacate or modify sentences shall be in English and typed or legibly printed on the Court-approved forms.

(b) Prisoners shall follow the instructions provided with the forms and complete the forms using only one side of the page. Every section of the form must be fully completed and all information required by the form must be included. (c) After completing the Court-approved form, the prisoner may attach additional pages containing additional information as permitted by the instructions on the form. The information contained in any additional pages must specifically relate to the information provided in a designated section of the Court-approved form, must be permitted by the instructions and must be identified as supplementing the information contained in that section.

109 (d) No more than five (5) typewritten pages or ten (10) legibly printed pages may be attached to any Court-approved form unless accompanied by a motion for leave to file excess pages. (e) Additional pages shall be printed or typed on standard white 8 ½ by 11 inch-size, lined notebook or legal pad paper. Only one side of the page shall be used. Each page shall be numbered consecutively.

The printing or typewriting shall be no smaller than the standard elite type and shall contain numbered paragraphs which correspond to the numbered paragraphs on the Court-approved form. The typing or printing on each page shall be double-spaced. Exhibits submitted for filing shall be on 8 ½ by 11 inch paper. (f) Every pro se petition, motion, application or complaint must be signed by the prisoner under penalty of perjury.

All petitions, motions, applications and complaints that do not comply with this Rule, and are not corrected after notice, will be stricken by the Court. LR PL P 4. Filing Pro Se Prisoner Petitions, Applications, Motions and Complaints. (a) Points of Holding Court: The four active points of holding Court for the Northern District of West Virginia and the addresses for each of the Clerk’s Offices are as follows: (1) Wheeling Point of Holding Court: Address: Clerk of Court, U.S. District Court, P.O. Box 471, Wheeling, WV 26003.

110 (2) Clarksburg Point of Holding Court: Address: Clerk of Court, U.S. District Court, P.O. Box 2857, Clarksburg, (3) Elkins Point of Holding Court: Address: Clerk of Court, U.S. District Court, P.O. Box 1518, Elkins, WV WV 26302. 26241. (4) Martinsburg Point of Holding Court: Address: Clerk of Court, U.S. District Court, 217 W. King St., Room 207, Martinsburg, WV 25401. (b) Mailing Petitions, Motions, Applications and Complaints to the Clerk of Court: Prisoners shall file a petition, motion, application or complaint by mailing the completed forms in a sealed envelope to the Clerk of Court at any point of holding court.

Every envelope containing any type of inmate filing shall be marked: “ATTENTION: INMATE LITIGATION CLERK.” (c) Proof of Service: All documents, except the initial petition or complaint, presented for filing by prisoners shall contain proof of service in the form of a statement of the date and the manner of service and the names of the persons served, certified by the person who made service. Proof of service may appear on, or be affixed to, the documents filed and shall be designated by title as “Certificate of Service” in the following format: “I, (your name here), appearing pro se, hereby certify that I have served the foregoing (title of the document being served) upon the defendant(s) or respondent 111 (choose one) by depositing true and exact copies of the same in the United States mail, postage prepaid, upon the following counsel of record on (insert date).” (Then list the name(s) and address(es) of counsel for the defendant(s) or respondent(s) and sign your name.) LR PL P 5. Notice of Deficient Pleading. If a pleading received by the Court does not comply with the requirements of these Rules, it will be stricken from the docket and returned to the prisoner.

LR PL P 6. Current Mailing Address. All pro se prisoner litigants are responsible for promptly informing the Court of any change in their addresses, monitoring the progress of their cases and prosecuting or defending their actions diligently. Notification of a prisoner’s change of address must be accomplished by filing a Notice with the Clerk of Court and serving that Notice upon all other parties within ten (10) days of the change of address.

The envelope containing the Notice shall state on its face: “ATTN: CHANGE OF ADDRESS.” Failure to notify the Clerk of Court of an address change will result in dismissal of the prisoner’s case. LR PL P 7. Discovery. No discovery pursuant to Rules 26 through 37 of the Federal Rules of Civil Procedure shall be conducted with respect to petitions, motions, applications and complaints filed under these provisions without leave of the Court.

LR PL P 8. Prisoners May Not Utilize This Court’s CM/ECF System. Unless and until the administrative rules are changed, pro se litigants are 112 prohibited from using CM/ECF in the Northern District of West Virginia. Accordingly, all filings by pro se prisoners must be submitted on Court-approved forms or as otherwise provided in these Local Rules.

LR PL P 9. Court Personnel Cannot Provide Legal Advice. Court personnel are forbidden from interpreting any rules of procedure or giving any legal advice. This includes offering interpretations of rules, recommending a course of action, predicting a decision a judicial officer might make on any given matter or interpreting the meaning or effect of any Court order or judgment.

Prisoners are prohibited from having oral or written communications with the Court or Court personnel on matters in a pending case, other than to request copies of documents. LR PL P 10. Procedures for Cases Where a Prisoner is Represented by Counsel. (a) Use of Court-Approved Forms: In cases where a prisoner is represented by a licensed practicing attorney who is admitted to practice in the Northern District of West Virginia, use of the Court-approved forms is strongly encouraged, but is not mandatory for the filing of a motion, petition, application or complaint under these Rules.

(b) Required Information: Whether or not a Court-approved form is utilized by a licensed practicing attorney when filing a motion, petition, application or complaint on behalf of an incarcerated individual pursuant to these Local Rules, all information required by such forms must be included. Failure to comply with the Local Rules may be grounds for dismissal. 113 LR PL P 11. Motions Practice and Court Deadlines.

(a) A party named as a Respondent or Defendant by a pro se prisoner litigant may comply with the Court’s order to answer or show cause why a petition, application, complaint or motion to vacate or modify sentence should not be granted by filing a dispositive motion, exhibits and a supporting memorandum of law. The memorandum of law submitted in support of a dispositive motion shall not exceed twenty-five (25) pages. (b) Unless otherwise ordered by the Court, memoranda and other materials in response to a dispositive motion by the opposing party shall be filed within twenty-one (21) calendar days from the date of service of the motion. Memoranda filed in response to a motion shall not exceed twenty-five (25) pages.

(c) Memoranda in reply to a response filed by the opposing party shall be filed within fourteen (14) calendar days from the date of service of the memorandum in response. Memoranda filed in reply to a response shall not exceed fifteen (15) pages. (d) Surreply and surrebuttal memoranda may not be filed. (e) The Court, for good cause shown, may modify any of the time limitations set forth in these Rules or by Court order.

Failure to comply with the page limitations set forth in these Rules will, upon Court order, result in the entire document being stricken from the docket. LR PL P 12. Objections to a Magistrate Judge’s Recommended Disposition. (a) Any party may object to a magistrate judge’s recommended disposition by 114 filing and serving written objections within fourteen (14) calendar days after being served with a copy of the magistrate judge’s recommended disposition.

(b) The written objections shall identify each portion of the magistrate judge’s recommended disposition that is being challenged and shall specify the basis for each objection. (c) Any party may respond to another party’s objections within fourteen (14) calendar days after being served with a copy thereof. (d) Objections to a magistrate judge’s recommended disposition, or any response to the opposing party’s objections, shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation. LR PL P 13.

Filing of Pleadings or Papers Not Authorized by the Rules. Prisoners shall not file pleadings or papers not authorized by these Rules. Pleadings or papers not authorized by these Rules will be stricken from the docket by the Court and returned to the prisoner. LR PL P 14.

Filing Fee for Appeals. A Notice of Appeal must be accompanied by the required filing fee. In the event that a prisoner believes he or she cannot afford the fee, he or she must file a new Application to Proceed Without Prepayment of Fees and Affidavit on the form provided by the Court, requesting permission to proceed on appeal in forma pauperis. A new certified Prisoner Trust Account Report, signed by an authorized official from the institution where the prisoner is confined, must also be filed, together with ledger sheets 115 from the preceding six months.

LR PL P 15. Sanctions. Pro se prisoner litigants are subject to sanctions that include, but are not limited to, those available to the Court under Rule 11 of the Federal Rules of Civil Procedure for the submission of false, improper or frivolous filings in the Court. LR PL P 16.

Appointment of Counsel. Pro se prisoners who file civil actions, including habeas petitions, do not have an absolute right to appointed counsel. The Court may, in its discretion, appoint an attorney to represent a pro se prisoner at any point in the proceedings if it finds that a particular need or exceptional circumstance exists. Part 2 - Habeas Corpus Petitions and Motions to Vacate or Modify Sentence (28 U.S.C. §§ 2241, 2254 and 2255) LR PL P 16.

Filing Fee. No filing fee is required for filing a petition under 28 U.S.C. § 2255. However, a petition filed under 28 U.S.C. § 2241 or 2254 must be accompanied by the required filing fee . LR PL P 17.

Applications by Prisoners to Proceed In Forma Pauperis in § 2254 and 2241 Petitions. In the event that a prisoner believes he or she cannot afford the fee, he or she must file an Application to Proceed Without Prepayment of Fees and Affidavit, on the form provided by the Court, requesting permission to proceed in forma pauperis. A certified Prisoner Trust Account Report, signed by an authorized official from the 116 institution where the prisoner is confined must also be filed, together with ledger sheets from the preceding six months. Failure to send the fee with the petition or submit the necessary Application with supporting Prisoner Trust Account Report and ledger sheets will result in the Clerk of Court sending the petitioner a deficiency notice.

Failure to comply with the deficiency notice within twenty-one (21) calendar days of entry will result in the petition being dismissed without prejudice. In the event that the magistrate judge assigned to the case determines that the petitioner has the ability to pay the fee, an order will be entered requiring the petitioner to pay the fee within twenty-eight (28) calendar days. Failure to comply with the order will result in the case being dismissed without prejudice. All payments by or on behalf of prisoners must be by money order or United States Treasury check.

Cash and personal checks will not be accepted. LR PL P 18. Separate Petitions are Required for Judgments Entered by Different Courts. A petition or motion filed pursuant to § 2241, 2254 or 2255 shall be limited to a challenge against one judgment, except that a claim may be asserted against more than one judgment if the trial or proceeding in which the judgments were entered were heard or tried in one court at the same time in consolidated proceedings.

Prisoners seeking to challenge judgments entered by different courts or by the same court at a separate time must file separate petitions as to each court and judgment. LR PL P 19. No Responses Required Without Court Order. The named respondent need not respond unless or until directed to do so by the 117 Court.

LR PL P 20. Filing a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (a) Proceeding Under 28 U.S.C. § 2241: A petition for a writ of habeas corpus pursuant to § 2241 may be filed by a prisoner being held in federal or state custody who wishes to challenge the manner in which his or her sentence is being executed. (b) Use of Court-Approved Forms: To properly file a petition for a § 2241 writ of habeas corpus, pro se prisoners must use the Court-approved form titled “Application for Habeas Corpus Pursuant to 28 U.S.C. Section 2241” and must answer every question and complete the form in its entirety.

LR PL P 21. Filing a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (a) Proceeding Under 28 U.S.C. § 2254: A petition for a writ of habeas corpus pursuant to § 2254 may be filed by a prisoner in state custody who wishes to challenge the validity of his or her state conviction or sentence on the ground that it violates the Constitution, federal statutes or treaties of the United States. (b) Use of Court-Approved Form: To properly file a Petition for a § 2254 writ of habeas corpus, pro se prisoners must use the Court-approved form titled: “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody” and must answer every question and complete the form in its entirety.

(c) Place of filing: A state prisoner may file a petition for a writ of habeas corpus pursuant to § 2254 in either the judicial district in which the prisoner is presently confined or the judicial district where the prisoner was sentenced. It is the practice of this Court, in cases where the Northern District of West Virginia is the district of 118 confinement, to transfer habeas petitions challenging state convictions to the district in which the prisoner was sentenced. (d) Successive Applications for Writ of Habeas Corpus Pursuant to § 2254 or § 2255: Before a second or successive petition or application may be filed in this Court, a prisoner shall file a “Motion Under 28 U.S.C. § 2244 for Order Authorizing District Court to Consider Second or Successive Application for Relief Under 28 U.S.C. § 2254 or 2255” in the United States Court of Appeals for the Fourth Circuit. This Court may not consider a second or successive application without an order from the United States Court of Appeals for the Fourth Circuit authorizing it to do so.

LR PL P 22. Filing a Motion to Vacate or Modify Sentence Pursuant to 28 U.S.C. § 2255. (a) Proceeding Under 28 U.S.C. § 2255: A Motion to vacate, set aside or correct a sentence may be filed pursuant to § 2255 only by a prisoner in custody who wishes to attack or challenge a federal sentence or conviction imposed by the United States District Court for the Northern District of West Virginia. (b) Use of Court-Approved Forms: To properly file a § 2255 motion, pro se prisoners must use the Court-approved form titled “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” and must answer every question and complete the form in its entirety.

(c) Place of Filing: A § 2255 motion will be filed at the point of holding court where the sentence was imposed. (d) Filing Fee: No filing fee is required for a motion filed under 28 U.S.C. § 2255. Therefore, an Application to Proceed Without Prepayment of Fees and Affidavit 119 is not necessary. LR PL P 23.

Appeals. (a) Appealing the Denial of a 28 U.S.C. § 2241 Petition: A federal prisoner who desires to appeal the denial of a § 2241 petition must file a Notice of Appeal in the District Court within sixty (60) calendar days from the date of the adverse ruling. A state prisoner who desires to appeal the denial of a § 2241 petition must file a Notice of Appeal in the District Court within thirty (30) calendar days from the date of the adverse ruling. (b) Appealing the Denial of a 28 U.S.C. § 2254 Petition: To appeal the denial of a § 2254 petition, a prisoner must file a Notice of Appeal in the District Court within thirty (30) calendar days from the date of the adverse ruling.

Pursuant to Title 28 U.S.C. § 2253 and FRAP 22, prisoners must also file an application for a “certificate of appealability” in the District Court in order to proceed with an appeal. If the District Court denies a certificate of appealability, then the prisoner may reapply for the certificate from the United States Court of Appeals for the Fourth Circuit. (c) Appealing the Denial of a 28 U.S.C. § 2255 Petition: To appeal the denial of a § 2255 petition, a prisoner must file a Notice of Appeal in the District Court within sixty (60) calendar days from the date of the adverse ruling. Pursuant to Title 28 U.S.C. § 2253 and Federal Rule of Appellate Procedure 22, prisoners must also file an application for a “certificate of appealability” in the District Court in order to proceed with an appeal.

If the District Court denies a certificate of appealability, then the prisoner 120 may reapply for a certificate from the United States Court of Appeals for the Fourth Circuit. Part 3 - All Other Civil Causes of Action (Including, but not limited to, civil rights complaints filed by state prisoners pursuant to 42 U.S.C. § 1983 or Bivens, and complaints filed by federal prisoners pursuant to the Federal Tort Claims Act (“FTCA”).) LR PL P 24. Filing Fee for Civil Causes of Action. Civil complaints filed under this section must be accompanied by the required filing fee.

LR PL P 25. Applications by Prisoners to Proceed In Forma Pauperis in Civil Actions Other Than Those Filed Pursuant to 28 U.S.C. § 2241 or 2254. (a) Application to Proceed Without Prepayment of Fees: In the event that a prisoner believes he or she cannot afford the fee, he or she must file an Application to Proceed Without Prepayment of Fees and Affidavit, on the form provided by the Court, requesting permission to proceed in forma pauperis. A certified Prisoner Trust Account Report, signed by an authorized official from the institution where the prisoner is confined, must also be filed, together with ledger sheets from the preceding six months and a Consent to Collection of Fees from Trust Account.

Failure to send the fee with the complaint or submit the necessary Application with supporting Prisoner Trust Account Report and ledger sheets will result in the Clerk of Court sending the prisoner a deficiency notice. Failure to comply with the deficiency 121 notice within twenty-one (21) calendar days of entry will result in the complaint being dismissed without prejudice. In the event that the magistrate judge assigned to the case determines that the prisoner has the ability to pay the fee, a Report and Recommendation will be entered recommending that the Application be denied. If, upon review of the Application, the magistrate judge finds that it should be granted, an order will be entered setting forth the specific terms and conditions for payment of the filing fee.

In the event that an initial partial filing fee is ordered, failure to pay the fee within twenty-eight (28) days of the entry of the order will result in the case being dismissed without prejudice. Subsequent payments shall be made until the filing fee is paid in full. All payments by or on behalf of prisoners must be by money order or United States Treasury check. Cash and personal checks will not be accepted.

Regardless of whether the complaint is eventually dismissed upon order of the Court, or the prisoner voluntarily withdraws the complaint, the entire fee will be collected through the prisoner’s trust account. UNDER NO CIRCUMSTANCES WILL ANY FEE OR PARTIAL FEE BE REFUNDED. If, while incarcerated, a prisoner has had three or more civil actions or appeals in federal court dismissed as frivolous, malicious or based upon a failure to state a claim upon which relief may be granted, a new civil action or appeal of a judgment in a civil action cannot be filed in forma pauperis. See 28 U.S.C. § 1915(g).

122 (b) Objections: Objections to any filing fee ordered by the Court shall be filed with the Clerk’s Office within fourteen (14) days of the order and shall specifically demonstrate a factual basis for the prisoner’s alleged lack of ability to pay the filing fee. (c) Litigation Expenses: The granting of in forma pauperis status waives only the costs of filing and serving the complaint. It does not waive the prisoner’s responsibility to pay the expenses of litigation which are not waived by 28 U.S.C. §§ 1825 and 1915. LR PL P 27.

Service of the Complaint. (a) Service Without Prepayment of Fees: If the prisoner has been granted leave to proceed without prepayment of fees, the Clerk of Court, upon order of the Court, will complete and issue a summons form for each defendant, complete the Form USM 285 -- Process Receipt and Return -- and forward these documents, along with copies of the complaint and order directing service, to the United States Marshals Service. (b) Service After Prepayment of Fees: In cases where the prisoner has not been granted leave to proceed without prepayment of fees, the Court will enter an order directing the plaintiff to serve the complaint on each defendant after payment of the fees has been made in full. (c) Service on Federal Defendants: In cases where there are individually named federal defendants, the United States Attorney General and the United States Attorney for the Northern District of West Virginia must also be served with a copy of the complaint.

123 (d) Service on the Federal Government and Federal Agencies: In cases where the United States or federal agencies are the named defendants, the United States Attorney General, the United States Attorney for the Northern District of West Virginia and the head of the named federal agency must all be served with a copy of the complaint. LR PL P 28. Consent to Trial by Magistrate Judge. On the date the Court receives a responsive pleading from the defendant(s), the Clerk of Court shall provide all parties with Form AO 85 -- Notice, Consent, and Order of Reference -- Exercise of Jurisdiction by a United States Magistrate Judge, notifying them that they may consent to have a magistrate judge conduct any or all proceedings in the case and order the entry of a final judgment, pursuant to 28 U.S.C. § 636.

Within thirty (30) calendar days of the filing of the responsive pleading, each party shall advise the Clerk of Court in writing whether or not it will consent to having the United States Magistrate Judge assigned to conduct any and all proceedings in the action pursuant to 28 U.S.C. § 636. Consent may be given by completing and returning Form AO 85 -- Notice, Consent, and Order of Reference -- Exercise of Jurisdiction by a United States Magistrate Judge to the Clerk’s Office. LR PL P 29. Appeals from an Adverse Decision in a Civil Action.

(a) Appeal of Adverse Decision Against an Individual Defendant: To appeal an adverse decision in a civil action against an individual defendant (or defendants) a prisoner must file a Notice of Appeal in the District Court within thirty (30) calendar 124 days from the date of the adverse ruling. (b) Appeal of Adverse Decision Against a Federal Defendant: To appeal an adverse decision in a civil action against the federal government or a government agency, a prisoner must file a Notice of Appeal in the District Court within sixty (60) calendar days from the date of the adverse ruling. LR PL P 30. Filing a Pro Se State Civil Rights Complaint Pursuant to 42 U.S.C. § 1983.

(a) Proceeding Under 42 U.S.C. § 1983: Generally, a complaint pursuant to § 1983 may be filed by a state prisoner against a person or persons acting under the authority of state law who violates the prisoner’s constitutional or federal statutory rights or to challenge prison conditions that violate the prisoner’s constitutional or federal statutory rights. In addition, a current federal prisoner who was in the custody of state authorities may also file a complaint pursuant to § 1983 for the same reasons. (b) Use of Court-Approved Forms: To properly file a complaint pursuant to § 1983, pro se prisoners must use the Court-approved form titled “State Civil Rights Complaint Pursuant to 42 U.S.C. § 1983” and must answer every question and complete the form in its entirety. LR PL P 31.

Filing a Pro Se Federal Civil Rights Complaint Pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (a) Proceeding Under Bivens: A Bivens complaint may be filed by a federal prisoner, against a person or persons acting in his or her individual capacity, under color of federal authority, for violations of a prisoner’s constitutional rights. 125 (b) Use of Court-Approved Forms: To properly file a complaint pursuant to Bivens, pro se prisoners must use the Court-approved form titled “Federal Civil Rights Complaint (Bivens Action)” and must answer every question and complete the form in its entirety. LR PL P 32.

Filing a Pro Se Complaint Pursuant to the Federal Tort Claims Act (“FTCA”). (a) Proceeding Under the FTCA: An FTCA complaint may be filed by a prisoner against the United States for claims for property damage, personal injury or death caused by the negligent or wrongful acts or omissions of an employee of the federal government while acting within the scope of his or her office of employment. (b) Use of Court-Approved Forms: To properly file a complaint pursuant to the FTCA, pro se prisoners must use the Court-approved form titled “Complaint Pursuant to the Federal Torts Claims Act (FTCA)” and must answer every question and complete the form in its entirety. LR PL P 33.

Filing a Pro Se Complaint Pursuant to Any Statutory Authority Not Specifically Designated Above. To properly file a civil action other than those described above, pro se prisoners must use the Court-approved form titled “Pro Se Prisoner Civil Complaint” and must answer every question and complete the form in its entirety. 126 The Local Rules of the United States Bankruptcy Court for the Northern District of West Virginia are available at http://www.wvnb.uscourts.gov 127 Appendix L.R. Civ. P. 26.06A – CHECKLIST United States District Court for the Northern District of West Virginia CHECKLIST FOR RULE 26(f) MEETING REGARDING ELECTRONICALLY STORED INFORMATION In cases where electronically stored information will be exchanged between the parties, the Court encourages the parties to engage in on-going discussions and use the following Checklist to guide those discussions. These discussions should be framed in the context of the specific claims and defenses involved.

The usefulness of particular topic on the checklist, and the timing of discussion about these topics, may depend on the nature and complexity of the matter. Parties may obtain discovery of such materials, and on such terms, as permitted by the Federal Rules of Civil Procedure, the Local Rules, and the applicable orders of the court. I. Preservation  The ranges of creation, last modified, last accessed, or receipt dates for any known ESI to be preserved.  The description of data from sources that are not reasonable accessible and that will not be reviewed for responsiveness or produced, but that will be preserved pursuant to Federal Rule of Civil Procedure 26(b)(2)(B).  The description of data (including source and volume) from sources that (a) the party believes could contain relevant information but (b) has determined, under the proportionality factors, should not be preserved.  Whether or not to continue any interdiction of any document destruction program, such as ongoing erasures of e-mails, voicemails, and other electronically-recorded material and/or ongoing preservation requirements (i.e. “evergreen”).  The names and/or general job titles or descriptions of custodians for whom ESI will be preserved (e.g. “HR head,” “scientist,” “marketing manager,” etc.).  The number of custodians for whom ESI will be preserved.  The lists of systems, if any, that contain ESI not associated with individual custodians and that will be preserved, such as enterprises databases, legacy data, and human resource records.  Any disputes related to scope or manner of preservation.  Any non-party to consult regarding ESI, including entities over which a party has control. II.

Resource Person  The identity of each party’s e-discovery resource person(s).

III.

Informal Discovery About Locations of Data and Types of Systems  Identification of systems from which discovery will be prioritized (e.g. email, structured databases, database types, and unstructured data).  Description of systems in which potentially discoverable information is stored.  Location of systems in which potentially discoverable information is stored.  How potentially discoverable information is stored.  How discoverable information can be collected from systems and media in which it is stored.  Whether there are known relevant file paths or data locations. IV. Proportionality and Costs  The amount and nature of the claims being made by either party.  The nature and scope of burdens associated with the proposed reservation and discovery of ESI.  The likely benefit of the proposed discovery.  Costs that the parties will share to reduce overall discovery expenses, such as the use of a common electronic discovery vendor or a shared document repository, or other cost-saving measures.  Limits on the scope of preservation or other cost-saving measures.  Whether there is potentially discoverable ESI that will not be preserved consistent with proportionality concerns.

V. VI.

Search  The search method(s), including specific words or phrases or other methodology (cluster technology/predictive coding), that will be used to identify discovery ESI and filter our ESI that is not subject to discovery.  The quality control method(s) the producing party will use to evaluate whether a production is missing relevant ESI or contains substantial amounts of irrelevant ESI. Phasing  Whether it is appropriate to conduct discovery of ESI in a phased or iterative approach (e.g. by issue, timeframe, custodians, databases, liability v. damages).  Sources of ESI most likely to contain discoverable information and that will be included in the first phases of Fed. R. Civ. P. 34 document discovery (i.e. known relevant file paths, email between specific parties during a given period of time).  Sources of ESI less likely to contain discoverable information from which discovery will be postponed or avoided.  Custodians (byname or role) most likely to have discoverable information and whole ESI will be included in the first phases of document discovery.  Custodians (byname or role) less likely to have discoverable information and from whom discovery of ESI will be postponed or avoided.  The time period during which discoverable information was most likely to have been created or received.  The issues that are relevant to pay party’s claim or defense.

VII.

Production  The formats in which structured ESI (database, collaboration sites, etc.) will be produced. formats  The in which unstructured ESI (email, presentations, word processing. Etc.) will be produced.  The extent, if any, to which metadata will be produced and the fields of metadata to be produced.  The production format(s) that ensure(s) that any inherent searchability of ESI is not degraded when produced.

VIII.

Privilege  How any production of privileged information or trial preparation material will be handled.  Whether the parties can agree upon alternative ways to identify documents withheld on the grounds of privilege or protection of trial preparation materials to reduce the burdens of such identification.  Whether the parties will enter into a Fed. R. Evid. 502(d) Stipulation and Order that addresses inadvertent or agreed production, and if so, the form and content of such order. IX. E-Discovery Special Maters and/or E-Mediators  Would it be helpful to the parties for the court to appoint an E-Discovery Special Master and/or E-Mediator? X. Expedited or Limited Discovery  Are the parties willing to engage in limited discovery or an expedited discovery schedule?

Appendix L.R. Civ. P. 26.06B – GUIDELINES United States District Court for the Northern District of West Virginia GUIDELINES FOR THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION GENERAL GUIDELINES Guideline 1.01 (Purpose) Discovery often now includes the review and production of electronic information. The discovery of electronically stored information (“ESI”) provides many benefits such as the ability to search, organize, and target the ESI using the text and associated data. At the same time, the Court is aware that the discovery of ESI is a potential source of cost, burden, and delay. These Guidelines should assist the parties as they engage in electronic discovery.

The purpose of these guidelines is to encourage reasonable electronic discovery with the goal of limiting the cost, burden, and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits. At all times, the discovery of ESI should be handled consistently with Fed. R. Civ. 1 to “secure the just, speedy, and inexpensive determination of every action and proceeding.” These guidelines also promote, when ripe, the early resolution of disputes regarding the discovery of ESI without Court intervention. These guidelines are a supplement to LRCivP 26.06. Guideline 1.02 (Cooperation) The court expects cooperation on issues relating to the preservation, collection, search, review, and production of ESI.

The court notes that an attorney’s representation of a client is not compromised by conducting discovery in a cooperative manner. Cooperation is reasonably limiting ESI discovery requests on the one hand, and in reasonably responding to ESI discovery requests on the other hand, tends to reduce litigation costs and delay. The court emphasizes the particular importance of cooperative exchanges of information at the earliest possible stage of discovery, including during the parties’ Fed. R. Civ. P. 26(f) conference. Guideline 1.03 (Discovery Proportionality) The proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) and 26(g)(1)(iii) should be applied to the discovery plan and its elements, including the preservation, collection, search, review, and production of ESI between parties.1 To assure 1 Fed. R. Civ. P. 45(c)(2)(B) outlines a different standard with regard to non-parties through its direction to courts to protect, through measures that include fee-shifting, such non-parties from significant discovery reasonableness and proportionality in discovery, parties should consider factors that include the importance of the issues at stake in the litigation, the burden or expense of the proposed discovery compared to its likely benefit, the amount in controversy, the parties’ resources, the parties’ relative access to relevant information, and the importance of the discovery in adjudicating the merits of the case.

To further the application of the proportionality standard, discovery requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable. Guideline 2.01 (Preservation) (a) At the outset of a case, or sooner if feasible, counsel for the parties should discuss preservation. Such discussions should continue to occur periodically as the case and issues evolve. (b) In determining what ESI to preserve, parties should apply the proportionality standard referenced in Guideline 1.03.

The parties should strive to define a scope of preservation is proportionate and reasonable and not disproportionately broad, expensive, or burdensome. that (c) The parties should be directed in their discussions concerning preservation by the Checklist for Rule 26(f) Meeting Regarding Electronically Stored Information set forth in Appendix L.R. Civ. P. 26.06A-CHECKLIST to the Local Rules. At the discretion of the court, or at the request of a party or the parties, a court order concerning preservation may be submitted for court approval providing a framework for applicable provisions. Guideline 2.02 (Rule 26(f) Initial Planning Meeting) At the required Rule 26(f) Initial Planning Meeting, when a case involves electronic discovery, the topics that the parties should consider discussing include: a) Preservation; b) Systems that contain discoverable ESI; c) Search and production; d) Phase of discovery; e) Protective orders (including application of Fed. R. Evid. 502); and f) Opportunities to reduce costs and increase efficiency. In order to be meaningful, the meeting should involve direct communications between counsel (preferably, in person and/or by telephone) and be as sufficiently detailed on these topics as is appropriate in light of the specific claims and defenses at issue in the case.

Some or all of the details set forth in L. R. Civ. P. 26.06 and the Checklist for Rule 26(f) Meeting Regarding Electronically Stored Information set forth in Appendix L.R.Civ. P. 26.06A-CHECKLIST to the Local Rules may be useful to discuss, especially in cases where the discovery of ESI is likely to be a significant cost or burden. The expenses. court encourages the parties to address any agreements or disagreements related to the above matters in the Rule 26(f) Meeting Report. At the direction of the court, the parties may be required to submit a draft of a Stipulated Order re: Discovery of Electronically Stored Information for Standard Litigation such as the model order set forth in Appendix LRCivP26.06C-MODEL ORDER to the Local Rules. Guideline 2.03 (Information Discovery Regarding ESI) Consistent with Guideline 1.02, the court strongly encourages an informal discussion about the discovery of ESI (rather than deposition) at the earliest reasonable stage of the discovery process.

Counsel, or others knowledgeable about the parties’ electronic systems, including how potentially relevant data is stored and retrieved, should be involved or made available as necessary. Such a discussion will help the parties be more efficient in framing and responding to ESI discovery issues, reduce costs, and assist the parties and the court in the event of a dispute involving ESI issues. Guideline 2.04 (Disputes Regarding ESI Issues) Disputes regarding ESI that counsel for the parties are unable to resolve shall be presented the court at the earliest possible opportunity, such as at the initial Scheduling Conference. The court may require additional discussions, if appropriate.

The court may appoint and/or the parties may seek the appointment of an E-Discovery Special Master or E-Discovery Mediator to assist the court in resolving ESI disputes.

EDUCATION GUIDELINES

Guideline 3.01 (Judicial Expectations of Counsel) It is expected that counsel for the parties, including all counsel who have appeared, as well as all others responsible for making representations to the court or opposing counsel (whether or not they make an appearance), will be familiar with the following in each litigation matter: a) The electronic discovery provisions of the Federal Rules of Civil Procedure, including Rules 26, 33, 34, 37, and 45, and Federal Rules of Evidence 502 (including applicable Advisory Committee Reports); and b) L. R. Civ. P. 26.06, these Guidelines and the court’s Checklist for Rule 26(f) Meeting Regarding ESI set forth in Appendix L.R.Civ.P. 26.06A- CHECKLIST and Stipulated E-Discovery Order for Standard Litigation set forth in Appendix L.R.Civ.P. 26.06C-MODEL ORDER to the Local Rules. Appendix L.R. Civ. P. 26.06C – MODEL ORDER United States District Court Northern District of West Virginia Plaintiff(s), v. Case No. Defendant(s). MODEL STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR STANDARD LITIGATION 1.

PURPOSE

This order will govern discovery of electronically stored information (“ESI”) (including scanned hard-copy documents) in this case as a supplement to the Federal Rules of Civil Procedures, this court’s Guidelines for the Discovery of Electronically Stored Information, and any other applicable orders and rules. 2.

COOPERATION

The parties are aware of the importance the court places on cooperation and commit to cooperate in good faith throughout the matter consistent with this court’s Guidelines for the Discovery of ESI. 3.

RESOURCE PERSON

The parties have identified to each other the resource persons who are and will be knowledgeable about and responsible for discussing their respective ESI. Each ESI resource person will be, or have access to those who are, knowledgeable about the technical aspects of ESI, including the location, nature, accessibility, format, collection, search methodologies, and production of ESI in this matter. The parties will rely on the resource persons, as needed, to confer about ESI and to help resolve disputes without court intervention. The resource person is not necessarily the person who would be designated to testify related to a person or entity’s preservation efforts, document retention policies, collection efforts, or other related matters.

4.

PRESERVATION

The parties have discussed their preservation obligations and needs and agree that preservation of potentially relevant ESI (e.g. email, texts, voicemail, spreadsheets, databases, etc.) will be reasonable and proportionate. To reduce the costs and burdens of preservation and to ensure proper ESI is preserved, the parties agree that: a) Only ESI accessed, modified, created or received between the dates _________________ and ______________ relating to the above-captioned matter will be preserved1; b) Based upon their investigation to date, the parties have exchanged a list of the types of ESI they believe should be preserved and the custodians, or general job titles or descriptions of custodians, for whom they believe ESI should be preserved. The parties shall add or remove custodians as reasonably necessary; c) The parties have agreed/will agree on the number of custodians per party for whom ESI will be preserved; d) The following data sources are not reasonably accessible, and the parties agree not to preserve the following: [e.g. backup media created before ______, ESI in foreign jurisdictions, data in slack space, digital voicemail, instant messaging, automatically saved versions of ESI]; 1 The parties may estimate or agree to the volume of data to be produced (i.e. number of documents, files or GB of data). e) The following data sources will be preserved but not searched, reviewed, or produced: [e.g. backup media of [named] system, systems no longer in use that cannot be accessed, etc.]; f) In addition to the agreements above, the parties agree that data from the following sources (a) could contain relevant information but (b) under the proportionality factors, should not be preserved: [e.g. databases that by their nature change as new information is added to them, accessed and modified dates, etc.]: g) In terms of preservation, the parties agree/disagree that there is no need for forensic images of servers, databases, computers, cell phones, etc. [except for the following data sources:__________________]2. 5.

SEARCH AND IDENTIFICATION

The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if appropriate, they will meet and confer about methods to search ESI in order to identify ESI that is subject to production in discovery and filter out ESI that is likely not subject to discovery. The parties are permitted to use reasonable search methods to narrow down the ESI to be reviewed for production in discovery (e.g. search terms, technology assisted review, deduplication, elimination of correspondence with attorneys, client self-collection efforts, etc.). However, the parties must be prepared to discuss the reasonableness of such efforts. 6.

PRODUCTION FORMATS

The parties agree to produce ESI in (check all that apply):  TIFF,  native,  PDF, and/or  paper, or a combination thereof (check all that apply) file formats.3 If 2 To the extent the parties disagree, cost-shifting may occur to the extent a party is required to expend resources on imaging which the court determines to be unnecessary or not proportional. 3 To the extent production is not in native format, the parties should consider an agreement on metadata fields to particular ESI warrants a different format, the parties will cooperate to arrange for the mutually acceptable production of such ESI.4 7.

PHASING

When the parties require some discovery prior to ADR/mediation, the parties agree to phase the production of ESI. The initial production will be from the following sources and custodians: ______________________________________________ __________________________________________________________________. This agreement will not limit the parties’ discovery if ADR/mediation is unsuccessful. However, the parties will continue to explore appropriate and proportional phasing of discovery throughout the discovery process.

When a party propounds discovery requests pursuant to Fed. R. Civ. P. 34, the parties agree to phase the production of ESI and the initial production will be from the following sources and custodians: ____________________________________ __________________________________________________________________.5 Following the initial production, the parties will continue to prioritize the order of subsequent productions. 8. ESI PROTECTED FROM DISCOVERY OR PUBLIC DISCLOSURE a) Pursuant to Fed. R. Evid. 502(b) and (d), the production of ESI which is privileged or is protected trial preparation material is not a waiver of privilege or protection from discovery in this case or in any other federal, state, arbitration or be produced. 4 By way of example, the parties could agree to produce excel ESI in native format while providing other ESI in TIFF format with conventional production numbering (PI 00001) and load files.

5 A phased or iterative approach may be used to conduct ESI (e.g. by issue, timeframe, custodians, databases, issue, liability, or damages). other proceeding so long as it was: [the parties may include their stipulated agreement, if any as to waiver of privilege, in this order or in a separate order].6 b) The parties may agree upon a “quick peek” process, without waiver of privilege or protection as trial preparation material, pursuant to Fed. R. Civ. P. 26(b)(5). c) Communications involving trial counsel that post-date the filing of the complaint need not be placed on a privilege log. d) Communications may be identified on a privilege log by category, rather than individually, if agreed upon by the parties or ordered by the Court. 9.

MODIFICATION

This Stipulated Order may be modified by a Stipulated Order of the parties or by the court for good cause shown. IT IS SO STIPULATED, through counsel of record. Dated: Dated: _______________________________ Counsel for Plaintiff(s) _______________________________ Counsel for Defendant(s) IT IS SO ORDERED that the foregoing Agreement is approved. Dated: _______________________________ United States District/Magistrate Judge 6 This paragraph 8 can be modified to limit or entirely eliminate the situations in which a producing party (or non- party) can be found to have failed to take (i) reasonable steps to prevent the disclosure of privileged or trial preparation material ESI, and/or (ii) prompt and reasonable steps to rectify this error, as provided under Fed. R. Evid. 502(b)(2)-(3).

This paragraph can also be modified to address different types of produced materials to different standards than those outlined in Fed. R. Evid. 502(b).