Tag Archives: discovery

E-Discovery: Defendant not required to redo discovery

In this product liability case, the issue is when does a defendant meet its discovery obligations.  In other words, does defendant satisfy its duty by using a keyword search.

In this product’s liability case, In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013), the court held that the burden of the costs outweighed any benefits.  Here, the costs of starting over with 19.5 million documents outweighed the possibility of finding additional relevant documents.  The case is as follows.

Defendant (Biomet) relied on keyword searching in order to reduce the volume of information.  The documents to be searched were reduced from 19.5 million to 2.5 million.  Afterwards, Biomet used predictive coding.  Throughout this process, Biomet spent $1.07 million, and expects the e-discovery costs to total between $2 million and $3.25 million.

Plaintiffs asked the court to require Biomet to start all over again and only use predictive coding.  Plaintiffs wanted to be part of the process and give input as to the predictive coding language.  The court disagreed.

In explaining its decision, the court relied on proportionality.  The proposal to start all over again (utilizing the original 19.5 million documents) “[sat] uneasily with the proportionality standard in Rule 26(b)(2)(C).”  Further, starting again would “entail a cost in the low seven-figures” and that the “confidence tests” run by Biomet “suggest a comparatively modest number of documents would be found.”

The court agreed that predictive coding would identify additional relevant documents.  However, the benefits would not outweigh the burdens.


via Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding : Electronic Discovery Law.

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Supreme Court and collective action dismissals

The Supreme Court has recently decided a collective action case that affects how the litigation process can be cut promptly by defendants.  In summary of the details below, a plaintiff loses its interest in a collective action when an offer completely satisfies the plaintiff’s claim.  Further, if the plaintiff does not move for certification, even though the lawsuit had already started, the plaintiff’s case ends if the claim is no longer alive.

What this might imply is that plaintiffs in a collective action would need to move promptly when seeking certification.  The question, however, is: would you have enough supporting evidence by then?

In Genesis Healthcare Corp. v. Symczyk, 11-1059 (2013), the Supreme Court held that a collective action (FLSA) is moot when the named plaintiff has no continuing personal interest in the outcome of the lawsuit and no motion for conditional certification has been filed.

The District Court, finding that no other individuals had joined her suit and the Rule 68 offer that was ignored fully satisfied her claim, dismissed the lawsuit for lack of subject matter jurisdiction.  The Third Circuit Court of Appeals dismissed.  However, the Supreme Court agreed with the District Court, and thus reversed the Court of Appeals’ opinion.

The Supreme Court explained that Sosna v. Iowa, 419 US 393 (1975) and United States Parole Comm’n v. Geraghty, 445 US 388 (1980), held that a class action that was erroneously denied relates back to the time of the erroneous denial — as long as the named plaintiff’s claim remains live at the time of the denial of the class certification.

The Supreme Court, here, found that the named plaintiff had not moved for conditional certification and her claim became moot.  Consequently, the relate back provision did not apply in her case.

As to the Rule 68 offer, the Supreme Court held that the purposes of a collective action would not be frustrated by the offer.  The plaintiff alleged that the Rule 68 had the effect to “pick off” the named plaintiffs before the collection action’s process had run its course.  The Supreme Court explained that in Deposit Guaranty Nat. Bank v. Roper, 445 US 326 (1980), when the Rule 68 offer did not provide complete relief, the named plaintiffs could appeal because they retained an ongoing, personal economic stake in the lawsuit.

Here, however, the named plaintiff conceded that the Rule 68 offer offered complete relief, and plaintiff asserted no continuing interest in shifting attorney’s fees and costs.

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Major Possible Changes to Federal Discovery Rules

Corporate Counsel reported about a very important and significant change that might occur next year.  Here are the highlights of the proposed amendments (starting on Page 91 of 322).

The e-discovery rules may change once again by next year.  The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure.  The Standing Committee will consider approving or rejecting the proposal in early June.

The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.

Rule 26’s proposed amendments are as follows:

  • Rule 26(b)’s proposed amendment restricts the defined scope of discovery to information that is “proportional to the needs of the case.”  The language is as follows:

    “and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

    These proportional considerations are currently listed in Rule(b)(2)(c)(iii).  This amendment would mandate adherence by the parties without court intervention.

  • Rule 26(b)’s proposed amendment would delete the following sentences:

    (1) “For good cause, the court order discovery of any matter relevant to the subject matter involved in the action.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

  • Note, that the proposed amendment for Rule 26(b) states that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
  • Rule 26(c) (protective orders) adds “or the allocation of expenses.”

Rules 30’s and 31’s proposed amendments are as follows:

  • The number of depositions (oral and written) would be reduced from 10 to 5.
  • The limit of an oral deposition is reduced to 6 hours.
  • The number of written interrogatories would change from 25 to 15.
  • The number of requests will be 25, except for requests relating to the genuineness of documents.
  • There will be a presumptive limit on the number of Requests for Admissions a party may serve.
  • A court order or a stipulation by the parties may increase the limits on any numerical discovery.

Rule 34’s proposed amendments (which govern the production of documents and electronically stored information) are as follows:

  • The objections to document requests must be stated with specificity.  This requirement has already been applied to interrogatory responses under Rule 33.
  • When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
  • A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.

Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:

  • A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation.  The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
  • The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures.  These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
  • The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.


via On the Cusp of Major Changes to E-Discovery Rules.

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The Sedona Conference®

Electronic discovery and electronic stored information are very important topics for everyone – employes, law firms, lawsuits, etc.  The Sedona Conference should be the first step you take when trying to get a better handle in the area of electronic discovery and electronic stored information.

I bring to your attention the website that lists all of the Sedona Conference’s publications.

Recently, the Sedona Conferenced uploaded its post-comments publication in the area of proportionality of costs.  This is an important publication because the proportionality of costs will influence who pays for the costs of discovery and what is a reasonable request.  In other words, defining what is an undue burden and expense.

Publications | The Sedona Conference®.

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In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

Similarly, in addition to other significant amendments to Rule 26, Rule 26.02(b) has been amended to require that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”  While such limitations to discovery were previously acknowledged, the amended rule more strongly emphasizes the importance of proportionality.

Significant amendments to other rules were also adopted.  Notably, an order attaching “corrective amendments” was entered several days later.  Those orders are available HERE and HERE.  The newly adopted amendments become effective July 1, 2013.

via In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality : Electronic Discovery Law.

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Zubulake revisited: Shifting standards in e-discovery

InsideCounsel has a very insightful article regarding the changes in Zubulake.  As previously addressed, the Zubulake cases are the leading guide posts of electronic discovery.  Nevertheless, recent case law signals potential departures from Zubulake.

InsideCounsel’s article states as follows:


Litigation holds 101

While the American concept of the litigation hold (also known as legal hold) received a passing reference in the advisory notes to the 2006 Federal Rule of Civil Procedure (FRCP) amendments, it was not until Zubulake, and later, Pension Committee, that courts connected the legal hold to the spoliation sanction framework.

Generally, sanctions are warranted when a party with control over discoverable information and under a duty to preserve acted with a culpable state of mind when destroying or losing relevant information. Once a party has established spoliation, a court must assess which sanction (ranging from further discovery to dismissal) aligns with the culpability of the spoliating party and the prejudice caused.

In Pension Committee, the court held that failing to issue a litigation hold is gross negligence per se. The court found that not only can relevance and prejudice be presumed when a spoliating party is grossly negligent, but that an adverse inference instruction was the appropriate sanction in that case.

Departures from Zubulake

In 2012, in Chin v. Port Auth. of New York & New Jersey, 11 plaintiff employees sued the defendant employer for alleged civil rights violations. In discovery, the plaintiffs learned that the defendant failed to implement a document retention policy, which resulted in the spoliation of at least 32 folders used to make promotion decisions from August 1999 to August 2002. The plaintiffs also learned that the defendant failed to issue a litigation hold regarding the promotion folders at any point between 2001 and 2007, and thus argued that this inaction amounted to gross negligence. However, the court rejected the argument that a failure to institute a litigation hold automatically constitutes gross negligence per se, contrary to the rule of Zubulake.

Instead, the court ruled in favor of a case-by-case approach, in which failure to preserve documents is one of multiple factors in the determination of whether to issue sanctions. In the end, the court upheld the district court’s conclusion that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process, as well as the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted.

What does it all mean?

Chin established that, depending on the facts, if a party acts reasonably and in good faith to preserve documents, it may be off the hook for severe sanctions. However, many commentators have argued that this does not change best practices—that parties should still issue a written litigation hold in accordance with Pension Committee.

For large organizations that touch many jurisdictions (many of which still follow Zubulake), corporate counsel should not disband their litigation hold systems just yet—in fact, they probably do not want ever to disband them. The litigation hold is an incredible powerful and defensible means to preservation. Large organizations often must track many custodians storing potentially relevant information on complicated IT systems. Corporations derive substantial benefits from being able to maintain holds, as well as being able to internally track multiple simultaneous preservation obligations.

It is worth noting, however, that not every case, or company, is the same. Should a tight-knit company of a few employees in a non-complex litigation have to issue a written legal hold in order to be safe from sanctions? As case law in 2013 develops, perhaps litigants in these types of cases will take a second look at the role of the litigation hold.

A breath of “reasonable” fresh air

On the topic of preservation, case law developments are not the only item on the horizon for 2013. The discovery subcommittee tasked with developing potential FRCP rule changes has been scrutinizing the preservation topic. In one possible version amending FRCP 37, the drafters adopted a factor-based approach to determining culpability. While one factor looks at the reasonableness of a party’s efforts to preserve the information, “including the use of a litigation hold,” another factor includes “the proportionality of the preservation efforts to any anticipated or ongoing litigation.” On Nov. 2, 2012, when the Advisory Committee voted to adopt the subcommittee’s proposal, a common opinion was that even this minor reference to the litigation hold should be omitted or reverted to the commentary to underscore the factor-based nature of draft Rule 37. As we continue down the road to Federal Rule amendments, it is becoming clear that the gold standard of Zubulake may be shifting in the coming year.

via Zubulake revisited: Shifting standards in e-discovery.

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Waiver of Attorney-Client Privilege

This is an illustrative case as to why attorneys want to take precautions when producing discovery.  The case is Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 /0S.D. Ohio Aug. 28, 2012).

In this case, the court held that privilege had been waived as to 347 pages of inadvertently produced emails where, among other things, Defendant failed to establish the reasonableness of the precautions taken to prevent the disclosure and “failed to take adequate measures to rectify or mitigate the damage of the disclosure.”

Here, Defendant did not stamp any documents as confidential.  Upon reviewing the documents at issue, the court held that those documents were covered under the attorney-client privilege.  However, the court found that the privilege had been waived.  The court highlighted the following facts:

  • Defendant’s lack of specificity as to who conducted the review and how the review was conducted.  The general assertion that multiple lawyers reviewed it was not enough.
  • Defendant failed to produce a privilege log during discovery;
  • 4.6% of the documents were inadvertently produced, which the Court found to be “relatively high.”

In sum, the Court opined:

After balancing the required factors, the Court concludes that Medex waived the attorney client privilege otherwise applicable to the 347 documents in the May 30 production.  To summarize, the Court finds that Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.

via Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails : Electronic Discovery Law.

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What NOT to include in your social media policy

HR.BLR has a good list to keep in mind when drafting your social media policy.  Please read this very carefully.

Social Media Policies: What NOT To Do

When creating your social media policies, here’s what NOT to do:

  • Don’t screen applicants on social media and/or ask for passwords to such sites. “Increasingly [such practices] will be prohibited by both federal and state law,” Scott explained. Additionally, screening on social media opens the risk for discrimination claims based on protected class status that may be discovered in social media postings.
  • “Don’t adopt social media policies which are overbroad, or which unreasonably chill the exercise of protected concerted activity rights under the NLRA.” Scott continued.
  • Don’t fire or discipline employees for social media content without first reviewing with counsel to ensure you are not crossing the line. Remember that the line is moving quickly as technology changes!
  • Don’t use third-party apps that are overbroad in their access to applicant and employee information.
  • Don’t refuse to hire applicants (or fire or discipline employees) based on information culled from social media without checking with experienced legal counsel.

Social Media Policies: What TO Do

Here are some “dos” for social media policies

  • Create a current, effective and enforceable social media policy.
  • Instruct employees not to use vulgar, obscene, threatening, intimidating or harassing language; attack people based on protected status (e.g., union status or activity, disability, national origin, etc.); disparage company products and services; or disclose confidential or proprietary company information.
  • Create a companion privacy policy, establishing guidelines to prevent the disclosure of confidential employee or company information. Confidential employee information may include things such as home addresses, birthdays, employee personal data (including medical data), and protected status information. Company proprietary information could be financial, trade secrets, or other business information deemed confidential. (These lists contain examples, but are not comprehensive.)
  • Train employees about social media policies.
  • “Use a non-decision-maker to filter the contents of the social media page” if you do use social media as part of applicant screening, Semler advised. This is so you don’t get charged with the knowledge of protected status.
  • Monitor ongoing legal developments and conform your practices to those changes. For example, monitor the constantly changing laws, regulations and rules established and implemented by federal and state legislatures, agencies and courts.

via What NOT to include in your social media policy.

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District of Minnesota amendments to Local Rules

Starting on July 23, 2012, the United States District Court for the District of Minnesota’s amendments will come into play.  Most of these amendments are stylistic.  However, there are a couple of substantive changes.

As of note, this summary is intended only as a summary of these changes.  This summary is not exhaustive. The summary is not intended to be legal advice on the rules.


The amendments for the Local Rules are as follows:

Local Rule 1.3, Sanctions

The language was amended in accordance with the restyling process.  In addition, LR 1.3 now specifies that it applies to “an attorney, law firm, or party.”


Local Rule 3.1, Civil Cover Sheet

The language was amended in accordance with the restyling process.

Local Rule 4.1, Service

The language was amended in accordance with the restyling process.

Local Rule 4.2, Fees

The language was amended in accordance with the restyling process.Subsection (a)(2) replaced the phrase “motion for permission to proceed in forma pauperis” with the actual title of the form from the clerk’s office, “application to proceed in district court without prepaying fees or costs.”

Subsection (a)(2) deleted the sentence “If permission to proceed in forma pauperis is later denied, the complaint shall be stricken.”  The District Court explained that “if the court denies a party’s application to proceed without prepaying fees or costs, the court gives the party an opportunity to pay those fees or costs before the court strikes the party’s complaint.”

Local Rule 5.3,  Time for Filing After Service

The language was amended in accordance with the restyling process.

Local Rule 5.5, Redaction of Transcripts

The language was amended in accordance with the restyling process.

The new subsection (f) reflects the substance of the last sentence of former subsection (b).  Subsection (f) states “The court does not review transcripts to assess whether personal identifiers should be redacted.  Attorneys and unrepresented parties must do so themselves.”

Local Rule 6.1, Continuance

The language was amended in accordance with the restyling process.

Local Rule 7.1, Civil Motion Practice

The language was amended in accordance with the restyling process.

LR 7.1 was reorganized to add subsections (a) Meet and confer requirement, and (d) Motions for Emergency injunctive relief

Under subsection (a), parties must meet and confer before filing any civil motion, except a TRO, and file a meet and confer statement with the motion.  Parties must file a joint stipulation if parties agree on the resolution of all or part of the motion after the meet and confer statement is filed.

Under subsections (b) and (c), the District Court clarified that parties should file motions and supporting documents simultaneously.  In addition, the method of calculating deadlines has been changed.  Deadlines are now based on the filing date of the moving party’s motion and supporting documents, rather than on the hearing date.  Parties also now have 14 days to prepare a reply brief for a dispositive motion rather than the 7 days previously provided.

Subsection (b)(4) identifies types of motions that are considered nondispositive:  (i) motions to amend pleadings; (ii) motions with respect to third party practice; (iii) discovery-related motions; (iv) motions related to joinder and intervention of parties; and (v) motions to conditionally certify a case as a collective action.

Subsection (c) was amended to reflect the different practices of district judges.

Subsection (d) was added to provide guidance on filing motions for emergency injunctive relief.

Subsection (e) was amended to clarify that after filing a timely post-trial or post-judgement motion, the moving party must contact the judge’s calendar clerk to obtain a briefing schedule.

Local Rule 9.3,  Standard forms for habeas corpus petitions and motions by prisoners

The language was amended in accordance with the restyling process.

Local Rule 15.1, Amended pleadings and motions to amend

The language was amended in accordance with the restyling process.

Local Rule 16.1, Control of Pretrial Procedure by Individual Judges

The language was amended in accordance with the restyling process.  In addition, the language regarding ADR was moved to 16.5.  The language requiring parties to consider the use of ADR was removed because it was addressed in LR 26.1 and Forms 3-4.

Local Rule 16.2, Initial Pretrial Conference and Scheduling Order

The language was amended in accordance with the restyling process.

The previous language in (a) was moved to LR 26.1 regarding the initial pretrial conference.

Subsections (c) and (d)(2) were added to specify that issues related to confidential or protected documents must be addressed at the initial pretrial conference and may be addressed in the scheduling order.

Subsection (d)(3) clarifies the nature of discovery deadlines.  The language states, “The discovery deadlines… are deadlines for completing discovery, not for commencing discovery.  To be timely, a discovery request must be served far enough in advance of the applicable discovery deadline that the responding party’s response is due before the discovery deadline.”

Local Rule 16.3, Modification of a Scheduling Order

The language was amended in accordance with the restyling process.

The changes to subsections (a) and (b) are intended to clarify for parties that they cannot simply stipulate to a change in a scheduling order.  Instead, parties must move to modify a scheduling order.

Local Rule 16.4, Case Management Conference

The language was amended in accordance with the restyling process.

Local Rule 16.5, Alternative Dispute Resolution and Mediated Settlement Conference

The language was amended in accordance with the restyling process.

The rule was amended to emphasize that a mediated settlement conference is not required in certain actions.

The time limit (which previously required a mediated settlement conference to be held within 45 days prior to trial) was eliminated.  Subsection (b) states that the mediated settlement conference must occur before trial (except in a proceeding listed in Fed.R.Civ.P. 26(a)(1)(B)).

Other subsections were amended to conform to the language of the Alternative Dispute Resolution Act, 28 USC 651-658.

Local Rule 16.6, Final Pretrial Conference

The language was amended in accordance with the restyling process.

Subsection (b) clarified that although parties must be prepared to discuss the listed subjects, if some of the subjects are not relevant in a particular issue, the court is not required to discuss them.

Subsection (b)(13) clarified that the final pretrial conference can embrace any subjects identified in the relevant provisions of the Federal Rules of Civil Procedure.

Local Rule 16.7, Other Pretrial Conferences

This section was abrogated as redundant.

Local Rule 17.1, Settlement of Action or Claim brought by Guardian or Trustee

The language was amended in accordance with the restyling process.

Local Rule 23.1, Designation of “Class Action” in the Caption

The language was amended in accordance with the restyling process.

Local Rule 26.1, Conference of the Parties Under Fed.R.Civ.P. 26(f); Report; Protective Orders

The language was amended in accordance with the restyling process.

The new subsections (a) and (b) clarify the parties’ obligations to meet and confer and file a report (Form 3 or 4).  Forms 3 and 4 were revised.

The new subsection (c) was added to require the parties to address whether a protective order is necessary and incorporates reference to Forms 5 and 6.

Local Rule 26.2, Form of Certain Discovery Documents


This local rule was abrogated.  It was considered unnecessary due to the direction provided in LR 37.1.

Local Rule 26.3, Disclosure and Discovery of Expert Testimony


This local rule was abrogated.

Local Rule 26.4, Filing of Discovery Documents


This local rule was abrogated.

Local Rule 37.1, Form of Discovery Motions

The former LR 37.1 was abrogated.  LR 37.2 was renumbered was LR 37.1.

The language was amended in accordance with the restyling process.

This rule was amended to require parties to meet and confer before filing any motion, and to file a meet and confer statement with the motion.

Local Rule 37.2,


It was renumbered was LR 37.1 after the former LR 37.1 was abrogated.

Local Rule 38.1, Demand for a Jury Trial

The language was amended in accordance with the restyling process.  The rule now instructs parties that they may demand a jury trial either by the method prescribed in LR 38.1 or by any other method that complies with Fed.R.Civ.P. 38(b).

Local Rule 54.3, Time Limit for Motions for Award of Attorney’s Fees and for Costs other than Attorney’s Fees


The language was amended in accordance with the restyling process.

Local Rule 72.2, Review of Magistrate Judge Rulings

The language was amended in accordance with the restyling process.

The new subsection (d) clarifies that the format and filing requirements apply to objections and responses to objections filed under this rule in all cases, whether civil or criminal.

via United States District Court – District of Minnesota.

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