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MCLE Article and Self-Assessment Test

Home Grown

The central district adopts Local Rules of Practice designed to streamline litigation and encourage settlement of disputes. 

By Gareth T. Evans 

Gareth T. Evans is a senior litigation associate in the Los Angeles office of Gibson, Dunn & Crutcher. 

After three years of study, the U. S. District Court for the Central District of California has quietly implemented a series of changes to its Local Rules of Practice that could dramatically alter the way civil cases are litigated in the nation's largest federal court. [1] The amendments to the local rules arose out of the December 1993 amendments to the Federal Rules of Civil Procedure, which featured controversial, mandatory initial, expert, and pretrial disclosure requirements. [2] The Central District opted out of several of the federal rule amendments but stated that "[t]he Rules Committee will be recommending to the [c]ourt that the substance of many of the [a]mendments which are not being implemented be incorporated into the [l]ocal [r]ules." [3]

On November 4, 1996, the amendments to the local rules became effective through a series of eight general orders. [4] The amendments implement a system of mandatory disclosures that are similar to, but in many cases less onerous than, the controversial disclosure provisions of the 1993 federal rule amendments. The amendments with the most significant impact upon parties and practitioners are those to Local Rule 6, which governs the early meeting of counsel, imposes disclosure obligations on the parties, and provides for an early scheduling conference. The court also amended the expert witness and the pretrial disclosure obligations of Local Rule 9. [5]

At the outset of a case, amended Local Rule 6 prohibits plaintiffs from propounding discovery to a defendant until 20 days after serving the summons and complaint. [6] This discovery stay provides a short period of repose during which the defendant can evaluate the case and prepare its responsive pleading. The local rule amendments have enlarged the period between service of the answer and the mandatory early meeting of counsel from 20 to 30 days to allow additional time to meet the expanded disclosure obligations at the early meeting. [7]

The initial stay on plaintiffs' discovery is much shorter under the local rules than under the federal rules, which provide that all parties are prohibited from propounding any discovery until the initial meeting of counsel under Federal Rule 26(f). The Federal Rule 26(f) meeting can take place several months after service on the defendant. [8] The amendments to Local Rule 6, as originally proposed, would have barred discovery until the early meeting of counsel, potentially even a longer period of time than under the federal rules. [9]

U. S. Attorney Nora Manella warned the Rules Committee during the public comment period that the proposed rule "inadvertently provides strong encouragement" to defendants to file motions to dismiss (which delay the time for filing answers) "solely as a tactic to delay discovery." [10] Contrary to the purpose of the proposed amendments "to encourage prompt disclosure and early resolution of cases," the proposed amendment threatened "to create a lengthy discovery standstill." [11] The amended rule that the court ultimately adopted solves this potential problem with its limited, 20-day discovery stay following service of the summons and complaint. [12]

The mandatory initial disclosures of witnesses and documents take place at the early meeting of counsel. The parties must disclose:

  • The names, last known addresses, and telephone numbers of all individuals who have knowledge of facts supporting the material allegations of the pleading filed by that party or rebutting the material allegations of the pleadings of any opposing party.      
  • All documents "then reasonably available" that the party contemplates using in support of its material allegations or to rebut the material allegations of any opposing party.      
  • A list of all such documents that the disclosing party contends are not reasonably available for production.      
  • A computation of damages claimed by the disclosing party, and all nonprivileged documents and other nonprivileged evidentiary material upon which the computation is based.      
  • Any insurance policies that may provide indemnification for all or part of a judgment. [13]

    The organized bar was divided on the merits of the amended disclosure requirements. The Committee on Federal Courts of the State Bar of California opposed them as being "too burdensome and punitive on litigants to be imposed at such an early stage in the proceedings." [14] The Association of Business Trial Lawyers (ABTL) and the Federal Bar Association (FBA), among others, notably did not express any general opposition to the disclosure requirements but rather suggested technical changes. The U.S. attorney's office commented that the disclosures are too limited in their scope by not requiring the parties "to produce the documents that will disclose the weaknesses in their respective cases and thereby facilitate prompt resolution of the action." [15]

    The amendments nevertheless expand the disclosure requirements of Local Rule 6, which previously did not compel production of the last known addresses and phone numbers of witnesses, nor did it compel the production of insurance policies, damages calculations, and supporting evidentiary material. The rule, which previously required disclosure only of witnesses and documents supporting each party's affirmative allegations, now also requires each party to identify witnesses and documents refuting its opponent's allegations. The amendments further require the parties to prepare a list of unavailable documents, significantly increasing the burden of the initial disclosures, while limiting the refuge that parties previously enjoyed from producing documents that they claimed were not "then reasonably available."

    These initial disclosure requirements are modified versions of the initial disclosure obligations imposed by Federal Rule of Civil Procedure 26(a)(1), which the court decided not to implement. [16] The scope of the witness and document disclosures under amended Local Rule 6 is narrower, however, and more specific than that of Rule 26(a)(1). Unlike Rule 26(a)(1), which requires disclosure of all individuals who are "likely" to have "discoverable information," Local Rule 6 significantly narrows the number of witnesses who must be identified by limiting the disclosure obligation to those individuals with actual knowledge of facts supporting the party's material allegations or rebutting the opposing party's material allegations.

    Unlike the federal rule, the local rule also does not require the parties to identify the subject of the information known by each individual on the witness list. [17] Why the court omitted this requirement, while imposing the much more burdensome requirement of listing all unavailable documents, is not clear. Although requiring the parties to identify briefly the general subjects about which the individuals have knowledge would impose little burden, it would assist in determining whether the identified witnesses should be deposed and, if so, in what sequence. [18]

    Local Rule 6 also limits the obligation to disclose documents to those that each party contemplates it will "use" (presumably at trial or in dispositive motions) in support of its material allegations or to rebut the opposing party's material allegations. This requirement is significantly narrower than the Federal Rule 26(a)(1) requirement to produce all documents "relevant" to disputed facts "stated with particularity" in the pleadings. [19] Rule 26(a)(1) has been criticized as burdensome and as interfering with the attorney-client relationship by requiring counsel to seek out and expose evidence that may support the opposing party's case against counsel's own client. Amended Local Rule 6, by contrast, does not require counsel to identify evidence tending to refute the client's allegations and supporting those of the opposing party.

    The federal rule's limitation to facts alleged with particularity also has been criticized as likely to give rise to frequent disputes between the parties as to whether allegations are indeed sufficiently particular to require the production of evidence. The amended local rule disposes of this problem by tying the disclosures to the parties' "material allegations." Ironically, however, in cases where the material allegations are not supported by particularized factual pleading, Local Rule 6 may require greater witness and document disclosures than under the federal rule, where nonparticularized allegations may be ignored.

    As additional witnesses and documents become known to them, the parties have a duty to supplement the disclosures required by Local Rule 6. Supplemental disclosures are only required, however, if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. [20] Amended Rule 6 provides that supplementation is a "continuing duty," but it does not specifically address the timing of supplemental disclosures. Federal Rule 26(e), which the Central District chose to adopt, provides that supplemental disclosures should be made at "appropriate intervals." The advisory committee notes to the 1993 amendments to the federal rules provide further guidance, explaining that "[s]upplementation need not be made as each new item of information is learned" but at intervals during the discovery period, "and with special promptness as the trial date approaches." [21]

    At what price do parties fail to comply fully with these initial and ongoing disclosure requirements? Prior to the local rule amendments, full compliance with the more limited disclosure obligations of former Local Rule 6 among local federal practitioners was far from universal. It is the bar's dirty little secret that both sides not infrequently conducted limited investigations prior to the early meeting of counsel regarding witnesses and available documents, identified a relatively small number of witnesses and documents at the early meeting, and relied upon the discovery process, instead of supplemental disclosures under the local rules, to yield additional evidence. Although documents later shown to have been reasonably available to a party at the time of the early meeting, but not produced, could be excluded from trial, [22] parties often did not complain to the court about their opponents' failure to comply with their disclosure obligations. Former Local Rule 6 also required the parties to make initial and supplemental witness disclosures but did not impose an express penalty for failing to do so. Moreover, judges only infrequently enforced the rule's disclosure obligations. While it is impossible to predict the extent to which attorneys and judges will require adherence to the amended rule's disclosure requirements, anything less than full compliance will put the parties and their counsel at significant peril. Under the amended rule, all initial and supplemental disclosures now must be in writing, dated, and signed by counsel. According to the rule, the signature "constitutes a certification that to the best of the signer's knowledge, information, and belief formed after a reasonable inquiry, the disclosure is complete and correct at the time it was made, or supplemented." [23]

    If the disclosures are not complete and correct, the attorney making them, the attorney's law firm, and the party may be subject to sanctions, including the costs and attorneys' fees incurred because of the violation. If a party fails to timely disclose a witness, document, or other item as required, the court also may exclude it at trial. [24] In addition, amended Local Rule 9 provides that any witnesses and exhibits not previously disclosed that appear on the pretrial witness and exhibit lists must be accompanied by a "statement of the reasons for such nondisclosure." [25]

    A joint report of the early meeting of counsel is due 14 days after the early meeting. In addition to making initial disclosures, Local Rule 6 requires the parties to include in the joint report:
  • An assessment of whether the action is sufficiently complex so that all or part of the procedures of the Manual for Complex Litigation should be utilized.      
  • A preliminary schedule of discovery.      
  • An estimate of the time required for trial.      
  • A proposed discovery cutoff date which, according to Local Rule 9, must be at least 21 days before the pretrial conference.      
  • A statement on whether discovery should be conducted in phases or otherwise limited, and whether the procedures of the federal or local rules should be modified in any way.      
  • A list of likely dispositive motions plus a proposed motion cutoff date.      
  • Identification of the mandatory settlement procedure that will be utilized if the case is not settled by the deadline of 45 days before the pretrial conference. [26]

    The last of these items, identification of a settlement procedure, is new to the local rules. Several of the items were previously required in a separate joint status report due 10 days before the status conference that automatically took place 20 days after the early meeting. Under the amended rules, the previous requirements of the joint report of early meeting and the joint status report are combined into the early meeting report, and the status conference is now optional. [27]

    The local bar opposed the requirement of selecting a settlement procedure on the ground that the early meeting occurs too soon in the case to determine what settlement procedure will be most effective later in the litigation. [28] The amended rules nevertheless include this provision, requiring the parties to choose in advance to conduct settlement proceedings either before the judge assigned to the case, another judge of the court, an attorney, or a retired judicial officer. [29]

    The Central District did not opt out of the expert witness disclosures under Federal Rule 26(a)(2). Therefore, after the initial disclosures under Local Rule 6, the amended local rules require the plaintiff's expert witness disclosures to take place eight weeks before the discovery cutoff; the defendant has until five weeks before the cutoff to make its expert disclosures. [30] Federal Rule 26(a)(2) requires the expert witness disclosure to be accompanied by:
  • A written report containing, among other items, a complete statement of all opinions the expert will express, the basis and reasons for the expert's opinions, the data considered by the expert in forming the opinions, and the expert's qualifications.      
  • A list of all published writings by the witness in the preceding 10 years.      
  • The compensation paid to the witness.      
  • A list of all other cases in which the witness has testified as an expert at trial or by deposition in the preceding four years. [31]

    Each party must disclose expert testimony intended solely for impeachment or rebuttal 30 days after the opposing party's disclosures. The parties must supplement these disclosures if any of the information changes or becomes incomplete. Failure to comply with these requirements in a timely manner may result in the expert being excluded at trial as a witness. [32] The parties must supplement expert witness disclosures at appropriate intervals if the party learns that the information previously disclosed is incomplete or incorrect. The duty to supplement expert witness disclosures extends both to information contained in the expert's report and to information provided at the expert's deposition. [33]

    As originally proposed, the local rule amendments called for the disclosure of expert witnesses to take place at the early meeting of counsel, which is only 30 days after the defendant's answer. [34] Local bar organizations strongly objected to this requirement for disclosing experts so early in the litigation process. [35] The ABTL, for example, wrote that including expert witness disclosures in the early meeting of counsel would be "a serious mistake," penalizing counsel who diligently prepared their cases by retaining consultants early in the litigation, requiring detailed disclosure of the expert's opinions in their early stages, and supplementation each time the witness formed a new or revised opinion. [36] The bar's opposition to the early disclosure of expert information prevailed, so the amended rules provide for the expert disclosures to take place during the last several weeks of discovery.

    Pretrial proceedings, which are governed by Local Rule 9, begin with the court sending a notice to the parties of the pretrial conference. The local rule amendments shorten the period of time in which the court may give notice of the pretrial conference to 30 days after the joint report of the early meeting of counsel is due to be filed. [37] Previously, this time period was 60 days. [38] Bar organizations had expressed concern that this amendment, which could limit the discovery period to as little as 134 days, would not allow sufficient time to complete discovery, especially if discovery disputes arose. [39] These concerns did not sway the Rules Committee.

    Amended Rule 9 continues to require counsel for the parties to meet 40 days before the pretrial conference to exchange exhibits and witness lists, discuss dispositive pretrial motions, stipulate to undisputed facts, identify deposition testimony they plan to introduce at trial, and "exhaust all possibilities" of settlement. [40] A stipulation to the existence of a fact does not, unless expressly stated, stipulate to its admissibility in evidence. [41]

    The parties also must file their memorandum of contentions of fact and law, as well as a joint exhibit list and separate witness lists, 21 days before the pretrial conference. [42] The amended rule requires the parties to state in the memorandum whether any issues are triable to a jury as a matter of right. If less than all issues are triable to a jury, the issues must be separately listed with appropriate citations of authorities. [43] Seven days before the pretrial conference, the parties must jointly prepare and lodge a proposed pretrial conference order in substantially the form of the sample order set forth in an appendix to the local rules. [44] The amended rule limits the order to only ultimate issues of fact and law, and directs the parties to leave out evidentiary and subsidiary issues not necessary to rendering a verdict or judgment. [45] The Federal Courts Committee of the State Bar praised this amendment for addressing "the confusion that exists among attorneys in deciding how much detail should be given to state the issues for trial." [46]

    If the parties have not already done so, they must exchange copies of all graphic and demonstrative evidence no later than 10 days before trial. [47] The old rule required the exchange of these materials 20 days before trial. [48]

    Seven days before trial, the parties must file requested jury instructions and a trial brief supplementing their memorandum of contentions of fact and law, responding to the opposing party's memorandum of contentions and identifying any anticipated evidentiary problems. If the case is a court trial, the parties must file proposed findings of fact and conclusions of law instead of jury instructions. In court trials, the court may require the parties to submit narrative statements of their witnesses' direct testimony in place of live examination. The witnesses' appearance at trial would be limited to cross-examination. [49]

    If the parties believe that the requirements of Rule 9 are not well suited to their case, they may apply for a waiver of Rule 9's pretrial procedures. They must do so, however, within 60 days of the filing of the answer. Unless otherwise ordered by the court, a waiver is available only for cases that are "realistically" estimated to consume no more than two trial days. Where the pretrial rules are waived, the parties must nevertheless follow an alternative set of streamlined pretrial procedures, including a limited six-month discovery period. [50]

    Cases involving pro se plaintiffs, habeas petitions, social security appeals, bankruptcy appeals, extradition cases, and cases removed from small claims court are exempted from the requirements of both Local Rules 6 and 9. [51] Bar organizations had expressed concern about the exemption for cases involving pro se plaintiffs because the procedures impose order on the conduct of litigation and can play an important role in narrowing issues and facilitating settlement. [52] Despite these legitimate concerns, cases involving pro se plaintiffs enjoy a blanket exemption from the requirements of Rules 6 and 9.

    The Rules Committee currently is reviewing the local rules again, and it may consider changes designed to better coordinate the local rules with the Federal Rules of Civil Procedure. The input of the bar will continue to have a significant effect on the committee's decisions. Attorneys should not hesitate to make their views known during the next public comment period.

    1 See U.S. Dist. Court, Central Dist. of Cal., Local Rules of Practice [hereinafter Local Rules].
    2 See Cheryl D. Justice, The Proposed Changes to the Federal Rules: New Duties and Pitfalls for Federal Litigators, Los Angeles Lawyer, Oct. 1993, at 35.
    3 See General Order 339-C (implementing the amendments to Fed. R. Civ. P. 5(e), 26(a)(2)(C), 26(b)(2), 29, 30(d)(2), 32(c) and 54(d)(2)(D); and opting out of amended Fed. R. Civ. P. 16(b), 26(a)(1), 26(a)(3), 26(a)(4), 26(d) and 26(f)).
    4 See General Orders 96-11, 96-12, 96-13, 96-14, 96-15, 96-16, 96-17, 96-18 (Oct 1, 1996).
    5 The other amendments consist of relatively minor changes to the Student Practice Rule, Rule 2.9 (pro se litigants), Rule 8.1.2 (marking and lodging deposition transcripts for trial), and Rule 28 (recording and broadcasting from the courthouse and its environs).
    6 Local Rule 6.7.1.
    7 See Comments of the ABTL to the Local Rules Amendments (Dec. 7, 1995) [hereinafter ABTL Letter).
    8 See Fed. R. Civ. P. 26(d), 26(f), 16(b).
    9 See Proposed Amendment to Local Rule 6.7.1, 1995 Daily Journal D.A.R. 14679, 14685 (Nov. 3, 1995).
    10 See Letter from Nora Manella, U. S. Attorney, to Judge A. Wallace Tashima, Chair, Rules Committee (Dec. 1, 1995) [hereinafter U.S. Atty. Letter], at 2, 3.
    11 Id.
    12 See Local Rule 6.7.1.
    13 See Local Rules 6.1, 6.2.1 to 6.2.4.
    14 See Memorandum from the Committee on Federal Courts of the State Bar of California to Judge A. Wallace Tashima (Dec. 8, 1995) [hereinafter State Bar Letter], at 5.
    15 See U.S. Atty. Letter, supra note 10, at 3.
    16 See General Order 339-C; see also Fed. R. Civ. P. 26(a)(1)(A)-(D).
    17 Compare Local Rule 6.2.1 with Fed. R. Civ. P. 26(a)(1)(A).
    18 See Fed. R. Civ. P. 26(a)(1)(A) adv. comm. cmt.
    19 Compare Local Rule 6.2.2 with Fed. R. Civ. P. 26(a)(1)(B).
    20 Local Rule 6.2.1, 6.2.2, 6.8 (imposing duty to supplement disclosures provided by Fed. R. Civ. P. 26(e)(1)).
    21 See Fed. R. Civ. P. 26(e)(1) and adv. comm. note.
    22 See former Local Rule 6.1.1 (expired on Nov. 3, 1996).
    23 Local Rule 6.3.1.
    24 Local Rules 6.3.1, 6.3.2.
    25 Local Rules 9.6, 9.7.
    26 Local Rules 6.4.1 to 6.4.4.
    27 Local Rules 6.9, 6.9.1.
    28 See State Bar Letter, supra note 14, at 5.
    29 Local Rules 6.4.4, 23.5.
    30 See Local Rule 9.4.6.
    31 See Fed. R. Civ. P. 26(a)(2)(B).
    32 See Local Rule 9.4.6; Fed. R. Civ. P. 26(a)(2)(B), (C); 26(e)(1).
    33 See Local Rule 9.4.6; Fed. R. Civ. P. 26(e)(1).
    34 See Proposed Local Rule 6.2.1, 1995 Daily Journal D.A.R.. at 14683. 
    35 See ABTL Letter, supra note 7, at 1-3. See also Letter from Robert L. Hess of the Federal Bar Association, to Frank E. Goodroe, Clerk of the Court (Nov. 28, 1995) [hereinafter FBA Letter], at 3.
    36 See ABTL Letter, supra note 7, at 2.
    37 Local Rule 9.2.
    38 See former Local Rule 9.2 (expired on Nov. 3, 1996).
    39 See Local Rules 6.1, 6.5, and 9.2.; State Bar Letter, supra note 14, at 4.
    40 See Local Rules 9.4.1, 9.4.2, 9.4.3, 9.4.4, 9.4.5, 9.4.9, 9.4.11, 9.4.12.
    41 Local Rule 9.4.3.
    42 Local Rules 9.5, 9.6, 9.7.
    43 Local Rule 9.5.4.
    44 Local Rule 9.8.1; see Local Rules app. A.
    45 Local Rule 9.8.2.
    46 See State Bar Letter, supra note 14, at 7 n.2.
    47 Local Rule 9.4.12.
    48 See former Local Rule 9.4.12.
    49 See Local Rules 13.5, 13.6.
    50 Local Rule 9.11.
    51 Local Rule 9.12.
    52 See FBA Letter, supra note 35, at 3, 6; U.S. Atty. Letter, supra note 10, at 5, 6-7. 


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