Limited Scope Representation

An attorney may provide limited representation to an unrepresented party in a civil action by order granting a motion which defines the scope of limited representation with reasonable particularity and certifies the approval of the unrepresented party. Any change in the scope of limited representation must be approved by the court. Termination of the representation must also be approved by the court. D.Mont L.R. 83.8 Self-Represented Litigants 83 | P a g e CHAPTER II.

CRIMINAL RULES

Criminal Rule 1. Scope CR 1.1 Rules Incorporated from Chapter I Civil Local Rules 1, 5.1, 11.1(b)-(d), 11.2, 48.2, and 83, except 83.3(b), 83.6, and 83.8(c)-(e), apply in criminal proceedings. D.Mont L.R. CR 1.1 Rules Incorporated from Chapter I 84 | P a g e Criminal Rule 6. The Grand Jury CR 6.1 When and Where Impaneled Grand juries are summoned when the public interest requires and convene where and when the court deems appropriate.

CR 6.2 Secrecy (a) Grand Jury Matters. Matters associated with a grand jury are sealed with access provided only to designated court staff. (b) Service of Indictments. When the United States serves a summons, lodges a detainer, or executes an arrest warrant (whichever comes first), it shall provide the defendant with the indictment and contact information for the Federal Defenders of Montana.

(c) Sealing and Unsealing of Indictments. (1) Indictments generally will not be sealed. On motion by the United States based on the circumstances of the case, an indictment may be filed under seal. (2) While an indictment is sealed, the Federal Defenders or designated counsel may discuss the indictment with a defendant, provided: (A) the defendant so requests, and (B) either: (i) the United States requested a summons for the defendant; or (ii) the defendant is in custody in any jurisdiction.

(3) The United States may move to unseal an indictment at any time. (4) A sealed indictment will be unsealed when the clerk receives notice D.Mont L.R. CR 6.1 When and Where Impaneled 85 | P a g e that any named defendant has appeared on the indictment in a federal court. (d) Redaction of Indictments. All indictments available to the public must redact the name and signature of the grand jury foreperson.

The original indictment will be maintained under seal. (e) Proceedings Conducted Under Seal. This Rule does not affect cases required or authorized to be conducted entirely under seal, such as juvenile cases or cases in which the presiding judge orders all proceedings sealed to protect national security or an ongoing investigation. D.Mont L.R. CR 6.2 Secrecy 86 | P a g e Criminal Rule 11.

Pleas CR 11.1 Sealed Plea Agreements No plea agreement may be filed under seal unless a party moves for leave to seal under L.R. CR 49.3. D.Mont L.R. CR 11.1 Sealed Plea Agreements 87 | P a g e Criminal Rule 16. Discovery CR 16.1 Production by the Government (a) Unless the parties otherwise agree and where not prohibited by law, the government shall disclose to the defense all information “favorable to an accused” that is “material either to guilt or to punishment” under Brady v. Maryland, 373 U.S. 83, 87 (1963), and that is known to the government. This requirement applies regardless of whether the information would itself constitute admissible evidence.

The information shall be produced in a reasonably usable form unless that is impracticable; in such a circumstance, it shall be made available to the defense for inspection and copying. Beginning at the defendant’s arraignment and continuing throughout the criminal proceeding, the government shall make good-faith efforts to disclose such information to the defense as soon as reasonably possible after its existence is known, so as to enable the defense to make effective use of the disclosed information in the preparation of its case. (b) The information to be disclosed under (a) is favorable to the defendant because it: (1) (2) (3) is inconsistent with or tends to negate the defendant’s guilt as to any element, including identification, of the offense(s) with which the defendant is charged; casts doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief; casts doubt on the credibility or accuracy of any evidence, including witness testimony, the government anticipates offering in its case-in- chief; (4) may be relied upon to support an argument for a lesser punishment at sentencing. (5) (6) tends to mitigate the charged offense(s) or reduce the potential penalty; tends to establish an articulated and legally cognizable defense theory or recognized affirmative defense to the offense(s) with which the D.Mont L.R. CR 16.1 Production by the Government 88 | P a g e defendant is charged; or (7) may be used for impeachment purposes.

Such information includes but is not limited to: (i) information regarding whether any promise, reward, or inducement has been given by the government to any witness it anticipates calling in its case-in-chief; and (ii) information that identifies all pending criminal cases against, and all criminal convictions of, any such witness. (c) As impeachment information described in (b)(7) and witness-credibility information described in (b)(3) may be dependent on which witnesses the government intends to call at trial, this rule does not require the government to disclose such information until 7 days before trial unless otherwise ordered by the court. (d) In the event the government believes that a disclosure under this rule would compromise witness safety, victim rights, national security, a sensitive law- enforcement technique, or any other substantial government interest, it may motion the court for a modification of the requirements of this rule, which may include in camera review and/or withholding or subjecting to a protective order all or part of the information. (e) For purposes of this rule, the government includes federal, state, and local law-enforcement officers and other government officials who have participated in the investigation and prosecution of the offense(s) with which the defendant is charged.

The government has an obligation to seek from these sources all information subject to disclosure under this rule. (f) Unless the presiding judge orders earlier disclosure, the government must disclose all information identified in (b)(1)-(2), (4)-(6) in its possession in a timely manner. On the defendant’s request the government must provide all discovery required by: (1) Fed. R. Crim. P. 16(a)(1)(A)-(E) and (G) no later than 14 days after arraignment and (2) Fed. R. Crim. P. 16(a)(1)(F) as soon as reasonably possible and no D.Mont L.R. CR 16.1 Production by the Government 89 | P a g e later than seven days before trial. (g) If the government fails to comply with this rule, the court, in addition to ordering production of the information, may: (1) specify the terms and conditions of such production; (2) grant a continuance; (3) impose evidentiary sanctions; or (4) enter any other order that is just under the circumstances.

(h) The government’s obligation to disclose exculpatory information extends to information covered under Fed. R. Crim. P. 16(a)(2). Exculpatory information need not be admissible so long as it is reasonably likely to lead to the discovery of admissible evidence. (i) Questions as to whether information in the possession of the prosecution is exculpatory should be resolved in favor of the defendant. The government may voluntarily submit information to the court for in camera inspection to determine whether it constitutes exculpatory information that must be produced.

Upon submitting such information, the government shall file in the record a written notice of submission describing in general terms that information being submitted for inspection. CR 16.2 Production by the Defendant Upon request by the government, and unless otherwise ordered by the court, the defendant shall provide all discovery required by Fed. R. Crim. P. 16(b) within 21 days from the date of the request. CR 16.3 Expert Witnesses In addition to those requirements outlined under Fed. R. Crim. P. 16(a)(1)(G) or 16(b)(1)(C), an expert witness disclosure must include the following information: (a) identification of all documents or other information reviewed by the D.Mont L.R. 16.2 Production by the Defendant 90 | P a g e expert; (b) a summary of the results of any studies, examinations, or tests performed by the expert regarding the subject matter of the testimony; and (c) a statement as to whether the expert will also testify as a lay witness. Unless the presiding judge sets a specific disclosure deadline, the parties must disclose all the above information no later than 21 days before trial.

CR 16.4 Sensitive Material (a) When disclosing information that is of a sensitive nature because it contains personal information, personal identifiers, or financial information, a party may make the disclosure subject to protections contained in this rule by including with the disclosure a written notice explicitly referencing this rule and setting forth the reasons why such protections are warranted. Upon disclosure the party must include the designation “SENSITIVE MATERIAL - SUBJECT TO L.R. CR 16.4.” (b) Upon written notice and designation of sensitive material in accordance with this rule, the following restrictions shall apply to the designated material: (1) Access to documents shall be limited to: (A) attorneys representing the defendant or the government; (B) the CJA Supervising Attorney; (C) (D) expert witnesses whose review of the material is necessary for the presentation of the party’s case; such law clerks, investigative agents, paralegals, and secretaries employed by defendant or the government, whose review of the material is required for the preparation and presentation of the party’s case; and (E) the defendant. Documents shall not be left in the defendant’s possession without defense counsel present. D.Mont L.R. CR 16.4 Sensitive Material 91 | P a g e (2) Documents shall be used in connection with a matter pending before this court and for no other purpose.

Attorneys shall expressly advise every authorized person who reviews the documents as to this limitation on lawful use. (3) It shall be the responsibility of the attorneys of record in this action to employ, consistent with this rule, reasonable measures to control duplication of, access to, and distribution of the documents. (c) Failure of any party to comply with the terms of this rule will be subject to punishment to the full extent of the Local Rules, the Federal Rules of Criminal Procedure, and the court’s inherent authority. CR 16.5 Continuing Duty to Disclose Any party that discovers additional information subject to disclosure under this rule after the deadline for such disclosure shall promptly disclose the information to the other party or the court.

D.Mont L.R. CR 16.5 Continuing Duty to Disclose 92 | P a g e Criminal Rule 17. Subpoena CR 17.1 Obtaining Presence of Incarcerated Person A party to a criminal proceeding requesting production of a prisoner by the United States Marshals Service for any court proceeding, by writ of habeas corpus ad testificandum or otherwise, must obtain a court order directing such production no later than 21 days before the date of the proceeding. A lesser time period may be allowed only upon motion and good cause shown. CR 17.2 Summons and Subpoena (a) Any party to a criminal proceeding requesting service of a criminal summons or subpoena by the United States Marshals Service must notify the Marshal of the request, along with all documentation necessary to effectuate service, no later than 21 days before the desired date of service.

A lesser time period may be allowed only upon motion and good cause shown. Orders issued under Fed. R. Crim. P. 17(b) and this rule must direct the United States Marshals Service to serve the subpoena. (b) Only a judge or a grand jury may direct a witness to produce designated items within a federal courthouse before trial. D.Mont L.R. CR 17.1 Obtaining Presence of Incarcerated Person 93 | P a g e Criminal Rule 17.1.

Pretrial Conferences CR 17.1.1 When Pretrial Conference Held When deemed advisable by the court, a pretrial conference will be held in criminal cases pursuant to Fed. R. Crim. P. 17.1. CR 17.1.2 Continuances No extension of time or continuance may be granted except upon order of a judge or a full-time magistrate judge. Enlargements are to be sparingly granted and only in a manner consistent with the Speedy Trial Act. D.Mont L.R. CR 17.1.1 When Pretrial Conference Held 94 | P a g e Criminal Rule 18.

Place of Prosecution and Trial CR 18.1 Place of Trial Criminal cases are tried in the division to which the case is assigned, unless the court, in its discretion, orders trial in another division. D.Mont L.R. CR 18.1 Place of Trial 95 | P a g e Criminal Rule 24. Trial Jurors CR 24.1 Impaneling a Trial Jury (a) Examination of Jurors. (1) Examination of jurors in criminal cases must be in accordance with the Federal Rules of Criminal Procedure.

(2) Alternate jurors may be impaneled in criminal cases in the discretion of the court in accordance with the provisions of the Federal Rules of Criminal Procedure. (3) Unless the court orders otherwise: (A) examination of trial jurors will be conducted by the court; and (B) questions the parties want the court to ask the jurors must be submitted at least one court day before trial commences. (b) Manner of Selection and Order of Examination of Jurors. (1) Composition of Panel.

(A) Initial Panel. The initial panel called will consist of twelve jurors plus the number of alternates ordered by the court plus the number of allowable peremptory challenges. The clerk will assign numbers to the jurors in the order in which they are called. (B) Challenges.

If any juror in the initial panel is excused for cause, an additional juror will be immediately called and will take the seat and number of the excused juror. After the initial panel is filled and challenges for cause are exhausted, the parties will exercise peremptory challenges. (C) Trial Jury. After challenges are exhausted, the clerk will call by name the agreed number of jurors who have the lowest assigned numbers.

These jurors constitute the trial jury. D.Mont L.R. CR 24.1 Impaneling a Trial Jury 96 | P a g e (2) Exercise of Peremptory Challenges. The court may order either of the following two methods for exercising peremptory challenges: (A) Traditional Method. In criminal cases in which the government has six and the defense ten challenges, the first is exercised by the government, the second by the defense, the next by the Government, the next two by the defense, the next by the government, the next two by the defense, the next by the government, the next two by the defense, the next by the government, the next two by the defense, the next by the government, and the last by the defense.

The passing of a peremptory challenge by either party is the equivalent of a challenge. (B) Arizona Strike Method. All peremptory challenges are exercised simultaneously and without disclosure to other parties. CR 24.2 Communications with Trial Jurors (a) Before or During Trial.

No person involved with the case may communicate with, or cause anyone else to communicate with, a juror, a prospective juror, or a juror’s or prospective juror’s family member. (b) After Trial. (1) Unless a different time applies under Fed. R. Crim. P. 33(b)(1) or a judge’s order, neither parties nor counsel may interview jurors unless, within 14 days after the jury returns its verdict, a party files: (A) proposed written questions to be asked of the jurors; (B) an affidavit showing good cause; and, (C) if granted leave, a second affidavit showing the results. (2) Unless otherwise ordered by the court, any juror or prospective juror may decline to communicate with anyone concerning a trial in which the juror was involved.

D.Mont L.R. CR 24.2 Communications with Trial Jurors 97 | P a g e Criminal Rule 32. Sentencing and Judgment CR 32.1 Presentence Reports (a) Electronic Filing. (1) The probation office shall provide to the clerk for filing under seal in the electronic record the final presentence report as transmitted to the parties and the court before sentencing. (2) Unless the sentencing judge adopts the final presentence report in full, the judge’s rulings and determinations under Fed. R. Crim. P. 32(i)(3)(B) and any other changes to the guideline calculation must be set forth in the Statement of Reasons or, if the judge so orders, in the certified sentencing transcript or an excerpt of it.

(b) Delivery to Bureau of Prisons. The probation office must ensure that the Bureau of Prisons receives both the pre-sentencing version of the presentence report and any rulings, determinations, or changes made by the sentencing judge. (c) Recommendation. The probation officer shall not disclose to anyone other than the court the officer’s recommendation on the sentence.

(d) Reciprocal Arrangements with State and County Probation and Parole. The United States Probation Office for the District of Montana may, at the discretion of the chief United States Probation Officer, enter into reciprocal working arrangements with Montana state and county probation and parole agencies allowing for the exchange of information contained in presentence investigation reports. Any such arrangements must require that information disclosed be used only for presentence investigation and the preparation of presentence reports, and that the receiving agencies maintain the essential confidentiality of the information exchanged. Any presentence investigation report shared pursuant to this rule must be redacted to include only the cover sheet, Identifying Data, Part B (The Defendant's Criminal History), and Part C (Offender Characteristics).

Disclosure of information relating to defendants not yet sentenced is prohibited, except where necessary to prevent harm to the defendant or others. (e) Disclosure to Pardon Attorney. Upon request of the Office of the Pardon Attorney of the Department of Justice, the United States Probation and D.Mont L.R. CR 32.1 Presentence Reports 98 | P a g e Pretrial Services Office (“USPO”) for the District of Montana may disclose presentence investigation reports for defendants seeking executive clemency and/or pardon for federal offenses. Information disclosed may be used only for the evaluation of pardon or clemency applications, and the Office of the Pardon Attorney shall otherwise maintain the essential confidentiality of presentence investigation reports.

Upon disclosure of any such reports, the USPO shall include a statement advising the Office of the Pardon Attorney of these confidentiality requirements. D.Mont L.R. CR 32.1 Presentence Reports 99 | P a g e Criminal Rule 41. Search and Seizure CR 41.1 Return of Seized Property Before the conclusion of a case, the parties must confer to identify non-contraband property in federal custody or control that may be returned to the defendant or his or her designee and to facilitate its return as soon as it is no longer needed as evidence. D.Mont L.R. CR 41.1 Return of Seized Property 100 | P a g e Criminal Rule 44.

Right to and Appointment of Counsel CR 44.1. Submissions by Defendant Personally If a defendant is represented by counsel, documents received from the defendant personally must be filed and sealed from public view pending the court’s review. When the right to counsel no longer applies in this court, pro se filings may not be dismissed or stricken on the grounds that the filer was represented by counsel. CR 44.2 Withdrawal of Counsel When an attorney’s withdrawal will leave any defendant without counsel for any period of time before the expiration of the time for filing a notice of appeal of the final judgment, the attorney may withdraw only by leave of court.

D.Mont L.R. CR 44.1. Submissions by Defendant Personally 101 | P a g e Criminal Rule 46. Bail CR 46.1 Security (a) All bonds in non-capital criminal cases for appearance before a magistrate judge taken by a magistrate judge or other officer acting as a committing magistrate judge pursuant to 18 U.S.C. § 3041 must be endorsed with his/her approval and immediately forwarded to the clerk of court, together with any money or negotiable bonds or notes of the United States deposited as security. Any money deposited may be forwarded to the clerk of court by cashier’s check or certified check.

(b) A receipt will be given by the magistrate judge for any money, bonds or notes deposited with him/her and a copy forwarded to the clerk of court. The clerk must deposit such monies received from the magistrate judge into the registry of the court. (c) When a bond is exonerated, disbursement from the registry of the court or release of bonds or notes may only be made on order of the court. CR 46.2 Persons Not to Act as Sureties (a) No officer of the court, nor any member of the Bar, nor his/her office associates or employees may act as surety.

(b) In lieu of surety in any criminal case there may be deposited with the clerk of court lawful money or negotiable bonds or notes of the United States. D.Mont L.R. CR 46.1 Security 102 | P a g e Criminal Rule 47. Motions and Supporting Affidavits CR 47.1 Prerequisites to Filing a Motion (a) Except for motions for appointment of counsel, the text of the motion must state that all other parties have been contacted and state whether any party objects to the motion. Defendants who have not yet been arraigned by a judge of this court need not be contacted.

(b) When a motion is unopposed, the word “unopposed” must appear in the title of the motion. (c) Except as otherwise provided in these rules or by order, a proposed order is required and permitted only with a motion for extension of time or with an unopposed motion. All proposed orders must: (1) (2) be attached to the motion in PDF format as an exhibit, so that the order, as proposed, is filed in the electronic record of the case; be e-mailed in Word format to the presiding judge, so the judge may alter it; (3) use 14-point font; (4) (5) (6) omit macros or special coding or formatting other than appropriate citation format; be e-mailed only to the judge’s address for proposed orders; for example, a judge whose initials are XYZ would have an e-mail address of [email protected]; and be identified in the subject line of the e-mail by the first defendant’s last name, the case number, and an abbreviated description of the document and the moving party, for example, Smith CR 08-29-GF p- ord gr def ext time. (d) Failure to comply with this rule may result in summary denial of the motion.

Denial must be without prejudice on the first occasion, and the filer must be given an opportunity to refile the motion. D.Mont L.R. CR 47.1 Prerequisites to Filing a Motion 103 | P a g e CR 47.2 Briefing (a) A motion must be accompanied by a brief in support filed separately and at the same time as the motion. A motion is deemed ripe for ruling after the response is filed. Briefing will proceed as follows: [Date Entered] Motion and Supporting Brief 6500 words maximum +14 days + 7 days Response Brief 6500 words maximum Reply 3250 words maximum (b) Failure to file briefs within the prescribed time may subject any motion to summary ruling and may be deemed an admission that the non-filing party’s position lacks merit.

(c) Briefs must include a certificate of compliance with this rule stating the number of words in the brief, excluding the caption, certificate of compliance, and any certificate of service. An attorney may rely on the word count of a word- processing program used to prepare the brief. (d) Where leave to file a longer brief is granted, the brief must include a table of contents and a table of authorities with page references. (e) Oral argument may be ordered sua sponte or on a party’s motion.

(f) Post-judgment motions are governed by the briefing schedule in subsection (a) unless the motion is docketed as a motion under 28 U.S.C. § 2255 or the court issues an order regarding recharacterization of the motion under § 2255. Notwithstanding subsection (a), the court may deny a post-judgment motion without awaiting a response. D.Mont L.R. CR 47.2 Briefing 104 | P a g e CR 47.3 Motion Exhibits [Omitted Dec 2023; incorporated into LR 5.1(b)(2)] CR 47.4 Notice of Supplemental Authority If pertinent and significant authority comes to a party’s notice after the briefs have been filed but before decision, a party may promptly advise the court by notice setting forth the citations and stating the reason the authority was not cited in the party’s brief. The notice must specifically refer either to a page of the brief(s) already filed or to a point argued orally.

The notice may not exceed two pages and must not present a new argument. No response may be filed unless the presiding judge so authorizes. D.Mont L.R. 47.4 Notice of Supplemental Authority 105 | P a g e Criminal Rule 49. Serving and Filing Papers CR 49.1 Filing with the Clerk Papers not filed electronically must be delivered to the clerk.

A judge’s acceptance of any paper for filing does not constitute agreement to accept any other paper for filing. CR 49.2 Signature (omitted December 2024 and incorporated into CR 1.1) CR 49.3 Filing under Seal (a) When Motion to Seal Required. (1) Regardless of subsection (2), a motion for leave to file under seal is always required if a party wants to seal a plea agreement. (2) A motion for leave to seal is not required if the case is sealed or if the item to be sealed: (A) is submitted for in camera inspection; (B) contains sensitive material as defined by L.R. CR 16.4(a); (C) (D) (E) is or contains material from a psychiatric or psychological report or contains confidential medical information and redaction is not practical; contains minutes or transcribed material from sealed proceedings and redaction is not practical; is a motion under USSG § 5K1.1 or Fed. R. Crim. P. 35(b) or otherwise contains details of or seeks a reduced sentence for a defendant’s assistance to authorities; (F) is or contains material from a pretrial services report, a presentence report, or a statement of reasons for the sentence D.Mont L.R. CR 49.1 Filing with the Clerk 106 | P a g e and redaction is not practical; or (G) is otherwise preauthorized to be filed under seal by federal or state law or an order previously entered in the case.

(b) Caption. Any document preauthorized to be filed under seal or ex parte must include the phrase “FILED UNDER SEAL” or “EX PARTE” in the case caption, followed by citation to the authority for sealing, e.g., “Fed. R. Crim. P. 17(b)” or “D. Mont. L.R. CR 49.3(a)(2)(E).” (c) Contents of Motion for Leave. A motion for leave to file under seal must: (1) be filed in the public record of the case; (2) without disclosing confidential information, describe the document or item to be sealed and explain why inclusion in the public record is not appropriate; and (3) either: (A) state why it is not feasible to file a redacted version of the document or item in the public record, or (B) be accompanied by a redacted version of the document or item filed in the public record.

(d) Electronic Filing. Following the directions of the clerk’s office, attorneys filing electronically must lodge under seal the document or item for which leave to seal is sought. Unless ex parte filing is authorized, the filing party must serve the sealed documents on all other parties. (e) Nonelectronic Filing.

Persons not filing electronically must submit to the clerk: (1) (2) the document or item to be sealed, placed in an envelope with the case number, date, and “Filing Under Seal Requested” clearly printed on the envelope; and, if required, the motion for leave to seal and brief in support. D.Mont L.R. CR 49.3 Filing under Seal 107 | P a g e (f) Response and Order. (1) (2) (3) (4) The court may rule on a motion for leave to seal without awaiting a response. If leave to file under seal is granted, the document or item will be deemed filed under seal, and the party need not refile the document.

The court may order that a document be redacted for the public record. Until the filing party complies, the unredacted document will not be deemed filed. If leave to file under seal is denied, the document or item will remain in the record under seal but will be deemed not filed. CR 49.4 Motions Under 28 U.S.C. § 2255 Except as otherwise ordered by the presiding judge, documents filed in connection with proceedings under 28 U.S.C. § 2255 need not be served on other defendants or defense counsel.

Where a movant appears pro se, movant’s trial and appellate counsel need not be served. CR 49.5 Non-Parties A non-party required or permitted to file (such as a material witness) must file electronically if represented by counsel. D.Mont L.R. CR 49.4 Motions under 28 U.S.C. § 2255 108 | P a g e Criminal Rule 55. Records CR 55.1 Matters Held Under Seal (a) Parties and Counsel.

Parties aware of matters or items under seal must employ reasonable measures to control access to them. Counsel may not release a jury list or a transcript of voir dire to a defendant without a written order. (b) Court Staff. (1) (2) Court staff must obtain a judge’s approval to provide a party with copies of sealed charging documents, pretrial services reports, jury lists, voir dire transcripts containing jurors’ names, presentence reports, statements of reasons, or documents submitted by the United States for in camera review.

Court staff will not respond to inquiries about indictments unless the indictment is unsealed. Consequently, failure to respond to an inquiry about an indictment may mean an indictment is sealed or may mean no indictment exists. (3) After sentencing, and subject to subsection (1), court staff may provide copies of sealed documents filed with respect to a particular defendant to that defendant. (c) Sealed Proceedings.

Delinquency proceedings against juveniles are confidential and must be conducted entirely under seal with electronic access provided only to court staff. (d) Sealed Items. The following items must be filed in the electronic record under seal: (1) grand jury matters, if filed in a case; (2) pretrial services reports; (3) petitions for summons or warrant, until the defendant appears on the petition; D.Mont L.R. CR 55.1 Matters Held Under Seal 109 | P a g e (4) psychological or psychiatric reports; (5) lists of prospective or seated jurors; (6) transcripts of voir dire, if filed, unless jurors’ names or other identifying information are not used; (7) presentence reports; and (8) the judge’s statement of reasons for the sentence imposed. D.Mont L.R. CR 55.1 Matters Held Under Seal 110 | P a g e Criminal Rule 57.

District Court Rules CR 57.1 Pretrial Publicity (a) Investigative Phase. When an investigation or grand jury proceeding is pending, an attorney and his or her agent must not, outside judicial proceedings, make a statement that a reasonable person would expect to be publicly disseminated, unless the statement is: (1) (2) limited to informing the public that an investigation is underway or describing its scope; or necessary to warn the public of danger or to obtain assistance in locating evidence or a suspect. (b) Judicial Phase. From the initiation of a prosecution to disposition, and outside judicial proceedings, an investigative agency, attorney, or agent of either, if involved in the prosecution or defense: (1) must not release, comment on, or authorize release of or comment on: (A) the defendant’s character, reputation, or criminal record, including arrests or other charges; (B) the fact or content of any statement by the defendant; (C) the fact or content of the defendant’s decision not to make a statement; (D) the performance or result of an examination or test or the defendant’s decision not to submit to an examination or test; (E) the identity, testimony, or credibility of a prospective witness; (F) the possibility of a guilty plea to the offense charged or a lesser offense; or (G) an opinion about the defendant’s guilt or innocence or the merits of the case; and D.Mont L.R. CR 57.1 Pretrial Publicity 111 | P a g e (2) may quote or refer without comment to public records of the court and may publicly announce: (A) the charge and a brief description of the offense; (B) the defendant’s name, age, city of residence, and occupation; (C) (D) information necessary to warn the public of any danger or to obtain assistance in locating evidence or a suspect; the time, place, and circumstances of an arrest, the identity of the investigating officer or agency, and the length of the investigation; (E) without further comment, the fact that the defendant denies guilt; (F) a brief description of physical evidence, excluding any reference to statements or testimony; (G) the identity of the victim, if not otherwise prohibited; and (H) the schedule or result of any stage in the judicial process.

(c) Action by Court. The court, on motion or sua sponte, may issue different or additional orders governing the conduct of persons involved in a case to ensure a fair trial by an impartial jury. D.Mont L.R. CR 57.1 Pretrial Publicity 112 | P a g e Criminal Rule 58. Petty Offenses and Misdemeanors CR 58.1 Fixed Sums Payable in Lieu of Appearance In criminal cases with petty offense charges at issue, defendants must be permitted to pay a fixed sum in lieu of appearance.

Acceptance and payment of such fixed sum terminates the action. However, if payment of the fixed sum is not timely made, a magistrate judge may, in his or her discretion, fix a higher amount so long as the fixed sum does not exceed the maximum fine which could be imposed. CR 58.2 Appeal from Judgment of United States Magistrate Judge (a) When an appeal is taken from a judgment of a United States magistrate judge under 18 U.S.C. § 3402 and Fed. R. Crim. P. 58(g)(2), the clerk will issue an order setting specific due dates based on the following schedule: (1) The official transcript must be ordered seven days after the notice of appeal is filed; (2) The official transcript must be filed 21 days after the notice of appeal is filed; (3) The appellant’s brief must be filed within 14 days after the official transcript is filed; (4) The appellee’s brief must be filed within 14 days after the appellant’s brief is filed; (5) The reply brief must be filed seven days after the appellee’s brief is filed. (b) If the appellant’s brief is not timely filed, the appeal is subject to summary dismissal.

D.Mont L.R. CR 58.1 Fixed Sums Payable in Lieu of Appearance 113 | P a g e Criminal Rule 59. Matters Before a Magistrate Judge CR 59.1 Authority of Magistrate Judge Each United States magistrate judge appointed by this court is authorized and designated by the Article III judges of the court to exercise all powers and perform all duties described by 28 U.S.C. § 636 and by federal rules and other federal law and may perform any additional duty that is not inconsistent with the Constitution or laws of the United States or with these rules. Such duties include but are not limited to issuing orders upon appropriate application for disclosure of grand jury information pursuant to Rule 6(e)(3) of the Federal Rules of Criminal Procedure, and for subpoenas, writs, and orders to show cause as they relate to grand jury proceedings. CR 59.2 Objection to Findings and Recommendation of Magistrate Judge (a) An objection filed pursuant to Fed. R. Crim. P. 59 must: (1) (2) itemize each factual finding of the magistrate judge to which objection is made, identifying the evidence in the record the party relies on to contradict that finding; itemize each recommendation of the magistrate judge to which objection is made, setting forth the authority the party relies on to contradict that recommendation; and (3) comply with L.R. 7.1(d)(2).

(b) Objections must be limited to 6500 words and be filed within 14 days of service of the magistrate judge’s order or findings and recommendation. Response and reply are not permitted unless ordered by the court. D.Mont L.R. CR 59.1 Authority of Magistrate Judge 114 | P a g e Appendix A: Imminent Execution of Death Sentence Pre-Filing Requirements D.Mont L.R. Appendix A: Imminent Execution of Death Sentence Pre-Filing Requirements 115 | P a g e 1. This rule applies when: A. B. C. any party intends to file an action challenging the validity or manner of execution of any death sentence imposed by a court of the State of Montana; the action may, at any stage, result in temporary or permanent stay of execution; and any person’s execution is set for a date less than 90 days from the date of the intended filing.

2. Before filing any document to initiate an action described above: A. an attorney who is a member of the bar of this court and any attorney intending to apply for leave to appear pro hac vice must speak with the clerk of court or designee during regular business hours; and B. counsel must: i. ii. iii. iv. briefly explain the nature of the intended filing; state what relief will be sought and what relief will not be sought; state approximately when the filing will be made; and follow any further instructions of court staff. C. Counsel would comply with this rule if, for instance, she telephoned the clerk’s office at 4:45 p.m. and told the clerk of court or designee that she intended to file an action under 42 U.S.C. § 1983 challenging the method of execution, along with a motion for stay of execution, at about 7:00 a.m. the next day, but no challenge would be made to the underlying conviction or sentence. D. Failure to comply with this requirement may result in the unavailability of a judge to review the filing when it is made.

3. Counsel must be familiar with the applicable Federal Rules of Appellate D.Mont L.R. Appendix A: Imminent Execution of Death Sentence Pre-Filing Requirements 116 | P a g e Procedure and Ninth Circuit Rules 22-1 to 22-6. The clerk of court must advise counsel regarding lodging of documents filed in this court in the Ninth Circuit Court of Appeals. 4.

If a stay of execution is denied, the clerk of court or designee will immediately notify the clerk of the Ninth Circuit Court of Appeals by telephone of the filing of any notice of appeal and forward copies of the notice of appeal, this court’s docket, the death warrant, and all orders issued in the case by electronic mail in PDF format to the Ninth Circuit clerk or designee, pursuant to Ninth Circuit Rule 22-6(a). D.Mont L.R. Appendix A: Imminent Execution of Death Sentence Pre-Filing Requirements 117 | P a g e Appendix B. Moved to Local Rule 83.2 D.Mont L.R. Appendix B. Moved to Local Rule 83.2 118 | P a g e Appendix C. Forms Additional forms are available on the court’s website. D.Mont L.R. Appendix C. Forms 119 | P a g e Form A. Statement of Disputed Facts L.R. 56.1(b) D.Mont L.R. Form A. Statement of Disputed Facts 120 | P a g e James Doe 179 Freeway View Dr. Two Dot, MT 59085 [email protected] ph. (406) 999-9999 Attorney for Defendant Thomas IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA TWO DOT DIVISION EDWARD S. REYNOLDS, JR., CV 13-796-TD-XYZ Plaintiff, vs. ANDREW THOMAS and NONOM COUNTY, Defendants.

DEFENDANT THOMAS’S STATEMENT OF DISPUTED FACTS Verbatim Response to Plaintiff’s Statement of Undisputed Facts: 1. Plaintiff Edward Reynolds is employed by Nonom County, Montana, in its Housing and Community Development Department. Reynolds Dep. at 3:2. Undisputed.

2. Reynolds performed the functions associated with his formal job description of Community Development Specialist, and he took on additional supervisory responsibilities, at his superiors’ request, “for a number of years with his duties continually expanding each year.” Reynolds Dep. at 53:17-59:6; Stewart Dep. at 8:12-10:14. D.Mont L.R. Form A. Statement of Disputed Facts 121 | P a g e Disputed as to Reynolds’ taking on additional supervisory responsibilities “at his superiors’ request.” At times he took on unnecessary tasks on his own initiative, Johnson Dep. at 48:16-25, Johnson-Smith Dep. at 13:10-23, and there is no evidence his duties continually expanded each year. Otherwise undisputed.

3. On April 6, 2007, and again on September 21, 2007, Reynolds’ supervisors, Camilla Johnson-Moore and Joseph A. Johnson, Jr., respectively, asked Defendant Thomas to reclassify Reynolds’ job or increase his pay to reflect the duties he was performing. Johnson Dep. at 5:3-7:8; Johnson-Moore Dep. at 6:2- 24; Reynolds Dep. at 48:10-16, 54:18-56:22; County Personnel Policy 200.210.478. Disputed.

Thomas Dep. at 23:21-25; Simpson Dep. at 9:24-10:18. 4. Thomas failed to respond to their requests. Undisputed, as they did not make any requests.

Defendant’s Additional Facts in Opposition to Plaintiff’s Motion: 5. In light of a growing number of oral requests for job reclassification, Thomas instructed all supervisors to put requests for job reclassification in writing. Thomas Dep. at 23:16-19; Staff Meeting Minutes, Jan. 31, 2007.

DATED [date] . /s/ James Doe Attorney for Defendant Thomas D.Mont L.R. Form A. Statement of Disputed Facts 122 | P a g e Form B. [Notice Regarding Electronic Service. Omitted] D.Mont L.R. Form B. [Notice Regarding Electronic Service. Omitted] 123 | P a g e Form C. [Notice of Appearance in an IFP Case--Omitted Dec 2023] D.Mont L.R. [Notice of Appearance in an IFP Case--Omitted Dec 2023] 124 | P a g e Form D. Final Pretrial Order L.R. 16.4(c) D.Mont L.R. Form D. Final Pretrial Order 125 | P a g e Jane Doe Jane Doe, P.C. 17 Pioneer Blvd. Suite 1A Kalispell, MT 59904 ph.

(406) 888-8888 [email protected] Attorney for Plaintiff Estate James Doe 179 Freeway View Dr. Two Dot, MT 59085 [email protected] ph. (406) 999-9999 Attorney for Defendant Westbest IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA TWO DOT DIVISION ESTATE OF MARY JONES, CV 13-792-TD-XYZ Plaintiff, vs. FINAL PRETRIAL ORDER WESTBEST NURSING HOME; DR. DANIEL ORK; PATRICIA PATTERN, Defendants. Pursuant to Fed. R. Civ. P. 16 and L.R. 16.4, the parties submit this Final Pretrial Order to govern the course of trial in this matter.

I. Nature of Action.

This is a negligence claim against Westbest Nursing Home that arises out of the injury and death of Mary Jones. Plaintiff claims the nursing home was negligent in physically restraining and then over-medicating Mary Jones. Mary D.Mont L.R. Form D. Final Pretrial Order 126 | P a g e Jones was injured when she became entangled in restraints caused by a medically induced disorientation. She later died.

Defendant denies it was negligent and claims it conformed to the applicable standard of care for nursing homes. Furthermore, Defendant asserts that the cause of death was not related to either the restraints used or to the medications administered. Defendant also claims that Mary Jones was comparatively at fault because she ignored specific instructions about attempting to leave her bed, instructions given when she was in full possession of her faculties. II.

Jurisdiction and Venue. Mary Jones is a citizen of the State of Montana. Westbest Nursing Home is a corporation organized under the laws of Oregon having its principal place of business in Oregon. Subject matter jurisdiction is based upon diversity of citizenship, 28 U.S.C. § 1332.

Personal jurisdiction is not questioned. Venue is proper in the Missoula Division as the incident occurred in Polson, Montana. L.R. 1.2(c)(5), 3.2(b).

III.

Jury. The case is set for trial before a jury of 9 persons. Neither party contests trial of any issue by the jury. IV.

Agreed Facts. The following facts are agreed upon and require no proof: D.Mont L.R. Form D. Final Pretrial Order 127 | P a g e (a) Mary Jones was born on July 4, 1934. (b) Mary Jones was a patient at Westbest Nursing Home in Polson, Montana from April 15, 2010, until May 23, 2013. (c) Mary Jones died at 1:30 p.m. on May 23, 2013.

(d) The cause of Mary Jones’s death was asphyxiation. (e) Mary Jones is survived by her daughter Anna Jones Murphy and her son Thomas Jones. (f) The reasonable funeral expenses incurred are $7,640.00.

V. Elements of Liability.

A plaintiff’s prima facie case in an action against a nursing home for injury or death of a patient due to misuse of a chemical or physical restraint consists of the following elements: (a) A duty owed by the nursing home to the patient. Plaintiff contends that under the provisions of the Nursing Home Patients’ Bill of Rights Westbest had a duty to keep Jones free from chemical and physical restraints unless authorized by a physician. (b) Breach. The breach of that duty by the nursing home, either by omitting to perform or by performing wrongly, its duty to the patient.

Plaintiff contends Jones was restrained for the convenience of the Westbest staff without authorization by her treating physician. D.Mont L.R. Form D. Final Pretrial Order 128 | P a g e (c) Injury to or death of the nursing home patient. Jones died of asphyxiation from the restraints placed on her by Westbest staff. (d) Causation.

Westbest Nursing Home’s breach of duty caused the Jones’s injury or death. VI. Defense Elements. The following are elements of defenses asserted by Defendant: (a) The nursing home conformed to the applicable standard of care.

(b) There is no causal relationship between the alleged negligent conduct and Mary Jones’s injury or death. (c) Mary Jones was comparatively at fault for her own injuries because she was negligent in failing to follow instructions. The sub-elements of this defense are: (1) Mary Jones had a duty to follow medical advice; (2) Mary Jones breached that duty by failing to follow specific instructions given to her by nurses and doctors; (3) Mary Jones’s injuries were caused by her own actions.

VII.

Relief Sought. Plaintiff claims special and general damages for wrongful death and survivorship, including the following: (a) Funeral expenses in the amount of $7,640.00. D.Mont L.R. Form D. Final Pretrial Order 129 | P a g e (b) Medical expenses after injury and before death $5,200.00. (c) Mental and physical pain and suffering $150,000.00.

(d) Wrongful death $150,000.00. (e) Survivorship $75,000.00.

VIII.

Legal Issues. The issue of causation will be disputed at the time of jury instruction. See Busta v. Columbus Hosp. Corp., 916 P.2d 122 (Mont.

1996); Hunsaker v. Bozeman Deaconess Found., 588 P.2d 493 (Mont. 1978). IX. Dismissals.

The parties have stipulated to dismiss with prejudice Defendants Dr. Daniel Ork and Nurse Patricia Pattern.

X. Discovery Documents.

Plaintiff will offer the following discovery documents: (a) Defendant’s Answers to Interrogatories: Nos. 1, 13, 20(a), 20(b) (b) Defendant’s Responses to Requests for Admission: Nos. 3, 9, 15 (c) Defendant’s Responses to Requests for Production: No. 7 (with attached documents) Defendant will offer the following discovery documents: (a) Plaintiff’s Answers to Interrogatories: Nos. 17, 23 (b) Plaintiff’s Responses to Requests for Admission: Nos. 10, 11 D.Mont L.R. Form D. Final Pretrial Order 130 | P a g e XI. Estimate of Trial Time. The parties estimate that Plaintiff will require two and a half days of trial to complete her case in chief. Defendant estimates it will require one day to complete its case in chief.

Plaintiff will call 16 lay witnesses and 2 expert witnesses. Defendant will call 7 lay witnesses and 2 expert witnesses.

XII.

Supersession. This Order supersedes the pleadings in this matter. DATED . ___________________________________ Xavier Yanni Zanthopoulos UNITED STATES DISTRICT JUDGE Approved as to form and content: /s/ Jane Doe Attorney for Plaintiff Brown /s/ James Doe Attorney for Defendant Jones D.Mont L.R. Form D. Final Pretrial Order 131 | P a g e Form E. One Party’s Witness List L.R. 16.4(d) D.Mont L.R. Form E. One Party’s Witness List 132 | P a g e DEFENDANT’S WITNESS LIST – WILL CALL Case Name: Estate of Jones v. Westbest Nursing Home Cause No.: CV 13-792-TD-XYZ Name City & State Manner of Presentation John Appleseed Billy Bathgate Harmon Highline Polson, MT Brooklyn, NY Fort Sumter, SC in person live video conference video deposition Mildred Ersatz Ponca City, OK [stipulation] Expert?/ Date of Report yes; 1-17-02 no yes; 1-29-02; 1st supp. 3-01-02; 2d supp.

6-07-02 no Objections Depo. Excerpt/ Summary 6:35-15:57 601, 602 summary attached D.Mont L.R. Form E. One Party’s Witness List 133 | P a g e DEFENDANT’S WITNESS LIST - MAY CALL Case Name: Estate of Jones v. Westbest Nursing Home Cause No.: CV 13-792-TD-XYZ Manner of Presentation Expert?/ Date of Report Dep. Excerpt/ Summary Objections Name Patricia Pattern, R.N. Daniel Ork, M.D. City & State Polson, MT Polson, MT in person in person Ralph Runcible Polson, MT in person no no no D.Mont L.R. Form E. One Party’s Witness List 134 | P a g e Form F. One Party’s Exhibit Lists L.R. 16.4(e) D.Mont L.R. Form F. One Party’s Exhibit Lists 135 | P a g e PLAINTIFF’S EXHIBITS B WILL OFFER Case Name: Case Number: Estate of Jones v. Westbest Nursing Home CV 13-792-TD-XYZ # Description Δ’s Objection Date Offered Date Reserved Date Admitted Date Refused/ Withdrawn Incident Report No. 389789, Officer Ruffian Video: nursing home room, without narrative Photograph of Plaintiff’s bed and restraints Video: A Day in the Life of Westbest Residents Westbest Employee Handbook, pp. 2-16 to 2- 30 Impeachment & Rebuttal Exhibits 1 24 107 329 507 – stipulated stipulated stipulated Rule 403, 801, 802; Rule 26(a)(2)(B) & (C) Rule 401, 402; Yaeger v. Deane D.Mont L.R. Form F. One Party’s Exhibit Lists 136 | P a g e PLAINTIFF’S EXHIBITS B MAY OFFER Case Name: Case Number: Estate of Jones v. Westbest Nursing Home CV 13-792-TD-XYZ # Description Δ’s Objection Date Offered Date Reserved Date Admitted Date Refused/ Withdrawn 103 501 506 511 Photograph of Plaintiff Hospital records of Plaintiff Rule 401 stipulated Restraining devices Rule 401, 403 Medication use records of Westbest in 2001 Rule 401 D.Mont L.R. Form F. One Party’s Exhibit Lists 137 | P a g e Form G. December 2023] [Motion by attorney for leave to file non-electronically.

Omitted Form H. [Form Order on Grand Jury Returns. Omitted. Refer to L.R. CR 6.2] D.Mont L.R. Form G.[Motion by attorney for leave to file non-electronically. Omitted December 2023] 138 | P a g e Form I. Witness Information Sheet D.Mont L.R. Form I. Witness Information Sheet 139 | P a g e WITNESS INFORMATION SHEET Thomas Q. Testifier Polson, Montana Mr. Testifier lives directly across the street from Westbest Nursing Home and has a plain view directly into Jones’s room.

He is an eyewitness to the events leading up to Jones’s death. Date of statement: 02-16-2002 Exhibits that may arise in Mr. Testifier’s testimony: 514 515 519 521 533 D.Mont L.R. Form I. Witness Information Sheet 140 | P a g e Form J. Client’s Consent to Student Participation L.R. 83.7 D.Mont L.R. Form J. Client’s Consent to Student Participation 141 | P a g e IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA Client’s Consent to Student Participation I, [Client’s Name], state the following: 1. [Supervising Attorney] has explained to me the terms under which [Student’s Name] will participate in the handling of my case. 2. 3.

I understand that [Student’s Name] is not an attorney. [Supervising Attorney] will remain fully responsible for my case and for all of the student’s work. 4. 5. I understand that this consent form will be filed in the record of my case.

I consent to the student’s participation in my case on these terms. DATED [date] . _______________________________ Client’s Signature D.Mont L.R. Form J. Client’s Consent to Student Participation 142 | P a g e Form K. Student’s Certification L.R. 83.7 D.Mont L.R. Form K. Student’s Certification 143 | P a g e IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA Student Certification I, [Student’s Name] , certify the following: 1. I am of good character and competent legal ability and am adequately trained to perform as a legal intern. 2.

I am: • enrolled at [Law School] and have completed at least two-thirds of the credits required to graduate; or • a recent graduate of [Law School] , but I have not yet taken a bar exam or I am awaiting the results. 3. 4. I am familiar with the Federal Rules of Civil Procedure, of Criminal Procedure, and of Evidence, the Model Rules of Professional Conduct, the Montana Rules of Professional Conduct, and the Local Rules.

I understand that I am bound by these rules. I understand that this certification will be filed in the record of each case in which I participate. DATED [date] . ______________________________ Student’s Signature D.Mont L.R. Form K. Student’s Certification 144 | P a g e Form L. Dean’s Certification L.R. 83.7 D.Mont L.R. Form L. Dean’s Certification 145 | P a g e IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA Dean’s Certification I, [Dean’s Name], Dean, or [Authorized Representative] , authorized representative of the Dean of [Law School], certify the following: 1. [Student’s Name] is: • enrolled at this law school and has completed at least two-thirds of the credits required to graduate; or • is a recent graduate of this law school who has not yet taken a bar exam or who is awaiting the results. [Student’s Name] is of good character and competent legal ability and is adequately trained to perform as a legal intern. [Law School] is accredited by the American Bar Association. I understand that this certification will be filed in the record of each case in which [Student’s Name] participates.

I understand that I may withdraw this certification at any time in writing directed to the clerk of court. 2. 3. 4.

5. DATED [date] . _______________________________ Signature of Dean/Representative [Law School] D.Mont L.R. Form L. Dean’s Certification 146 | P a g e Form M. Supervising Attorney’s Certification L.R. 83.7 D.Mont L.R. Form M. Supervising Attorney’s Certification 147 | P a g e James Doe 179 Freeway View Dr. Two Dot, MT 59085 [email protected] ph. (406) 999-9999 Attorney for Defendant Jones IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA [Division] DIVISION EDWARD S. REYNOLDS, JR., CV 13-796-TD-XYZ Plaintiff, vs. ANDREW THOMAS and NONOM COUNTY, Defendants. NOTICE OF STUDENT PARTICIPATION AND SUPERVISING ATTORNEY’S CERTIFICATION I, [Supervising Attorney], notify the Court that [Student’s Name] will participate in this case under D. Mont.

L.R. 83.7. I certify as follows: 1. I will assist and counsel [Student’s Name] in all work performed in this case. 2.

I accept full personal and professional responsibility for all work performed by the student. 3. I have explained to the client the terms under which [Student’s Name] D.Mont L.R. Form M. Supervising Attorney’s Certification 148 | P a g e will participate in this case. 4.

I will ensure that at least one supervising attorney is present in person throughout the student’s presentations in open court. 5. I will ensure that at least one supervising attorney signs all written submissions in which the student participates and briefly notes the student’s participation. 6.

Forms J, K, and L are attached to this Notice as exhibits. DATED this day of , 20 . _______________________________ Supervising Attorney’s Signature D.Mont L.R. Form M. Supervising Attorney’s Certification 149 | P a g e