By Yaniv Adar and Etan Mark (October 28, 2021)
While the first week of December in South Florida is typically associated with the international art fair, Art Basel, litigators in the region eagerly embrace another holiday tradition — annual changes to the U.S. District Court for the Southern District of Florida’s local rules.
Last month, the court’s Ad Hoc Committee on Rules and Procedures published their proposed rule amendments, set to go in effect on Dec. 1.
The most significant amendment involves the invocation of the trade secret privilege, but additional changes concern post-conviction motions, notices of supplemental authority and motions for reconsideration. Below is a summary of those changes, and what this means for South Florida litigants.
Specificity Required for Assertion of Trade Secret Privileges
Perhaps the most significant change in the planned amendments is proposed Local Rule 26.1(e)(2)(B)(ii)(c), governing assertions of trade secret privilege in response to discovery requests. The proposed rule provides:
For documents, electronically stored information, things, or oral communications withheld on the basis of a claim of trade-secret privilege (other than the alleged trade secrets at issue in any claim for misappropriation of trade secrets asserted under the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq., the Uniform Trade Secrets Act as adopted by any State, or any other law), the party asserting the objection shall generally describe: (1) the documents, electronically stored information, things, or oral communications being withheld; and (2) the general nature of the alleged trade secret (without revealing the alleged trade secret) contained therein.
This amendment is consistent with the general trend in this district of discouraging boilerplate objections and requiring litigants to specifically articulate: (1) why they are withholding documents, and (2) what documents they are withholding.
This proposed rule is already in effect with many of the no-nonsense magistrate judges in this district, but the proposed amendment formalizes and makes uniform this requirement.
Practice Tip
Litigants too often forget that Local Rule 26.1(e)(2)(D) requires them to produce a privilege log within 14 days following the service of a discovery response. This amendment will not only lead to an uptick in disputes over documents withheld on the basis of trade secret privilege, but assertion of privileges generally.
It also abolishes the boilerplate practice of relying on a vague trade secret privilege as a placeholder.
Ensuring compliance with this new rule by timely including a privilege log and otherwise complying with the local rules, as well as holding others accountable for ignoring it, are great ways to earn traction with the magistrate responsible for resolving your disputes.
Notice of 90-Days Expiration Expanded to Post-Conviction Motions
One of the local quirks here in the Southern District of Florida is if a motion is not ruled upon 90 days after either the motion is fully briefed with no hearing set, or 90 days after a hearing on the motion, the movant is required to “file and serve on all parties and any affected non-parties within fourteen (14) days thereafter a ‘Notice of Ninety Days Expiring.”[1]
These notices are always awkward because they require movants to publicly complain about their motion not being ruled upon.
Effective Dec. 1, that awkwardness extends to “post-conviction motion[s] in a criminal case,” forcing criminal litigants to similarly prod slow-moving judges. The new proposed rule does not apply to proceedings pursuant to Title 28 of the U.S. Code, Section 2255.
Practice Tip
Complying with this rule, although awkward, is critical to avoid being prejudiced later on in the case.
Judges who do not rule on motions within the 90-day window will resist any requests for relief arising out of the delayed ruling unless this rule is strictly complied with. Expect this practice to carry over into the criminal sphere.
Parameters Set for Notices of Supplemental Authority
The local rules are currently silent as to when and how litigants are permitted to file notices of supplemental authority, but that all changes with proposed Local Rule 7.8.
The new rule allows litigants to file notices of supplemental authority, even for authority that predates the motion, and requires litigants to state the reasons for the filing. The rule also allows an opposing party to file a response within seven days of the notice being filed, with no replies permitted.
Perhaps the most significant part of the rule is the word limitation: “The bodies of the notice and the response shall not exceed 200 words each.” This limitation will eliminate the practice of parties sneaking in supplemental briefing under the guise of a notice of supplemental authority.
Practice Tip
Judges do not take kindly to litigants seeking to circumvent Local Rule 7.1(c)(1)’s prohibition against “no further or additional memoranda of law [being filed] without prior leave” of the court by way of notices of supplemental authority.
This rule sends a clear message that notices of supplemental authority should only be used for the narrow purpose of actually notifying the court of supplemental authority, not simply pinging the court.
Expect judges to use newly enacted Local Rule 7.8 to slam litigants for failing to strictly comply with that rule.
Parameters Also Set for Motions for Reconsideration
Also noticeably absent from the current version of the local rules is any reference to motions for reconsideration. This too will change with proposed Local Rule 7.9, which provides comprehensive and specific guidelines for seeking reconsideration of all motions, except those governed by Federal Rules of Civil Procedure 50(b), 52(b), 59(e) or 60(b).
The proposed rule allows motions for reconsideration to be filed in only three instances: (1) “based on the availability of newly discovered evidence”; (2) “based on an intervening change or development in the controlling law”; and (3) “to correct a clear error or manifest injustice.”
Any motion for reconsideration must be filed within 14 days from the time the new evidence was discovered, the effective date of the change in law or, for instances of clear error or manifest injustice, within 14 days of the order.
Motions brought outside the 14-day window must include a showing of good cause as to why the motion should be considered.
The proposed rule allows for responses within 14 days of the filing of any motion for reconsideration.
Any motion or response must be limited to five pages, and no replies are permitted unless the court specifically authorizes them.
And to discourage litigants from abusing this proposed rule, subsection (g) provides that “[m]otions for reconsideration under this rule should not be filed as a matter of routine practice.”
Practice Tip
Another pet peeve of South Florida federal judges is the casual practice of seeking reconsideration as a matter of course. While the practice may be common in state court, judges loathe unhappy litigants clogging their docket simply to rehash losing arguments.
Like proposed Local Rule 7.8, expect judges to strictly apply Local Rule 7.9 and hold litigants accountable for failing to strictly comply with the rule.
Two Other Procedural Changes
The proposed amendments have two other procedural changes.
First, the prohibition against multiple motions for summary judgment was moved from Local Rule 7.1(c)(2) to Local Rule 56.1(e), but otherwise remains unchanged.
Second, amended Local Rule 5(b)(2) will reduce the eligibility requirements for Bankruptcy Clinical Placement Program students seeking to practice in bankruptcy court — from four semesters of required legal studies to two.
While these changes are somewhat minor,[2] it is worth noting that the U.S. District Court for the Middle District of Florida completely overhauled its local rules effective Feb. 1. The local rules of the U.S. District Court for the Northern District of Florida have remained unchanged since Nov. 24, 2015.
