The District Of Delaware Proposes Revised Local Rules

On February 25, the U.S. District Court for the District of Delaware published proposed revisions to its local rules, which were last modified August 1, 2016. The proposed revised rules were recommended by the Lawyers Advisory Committee of the District of Delaware with approval of the court.

Most of the revisions conform the previous version of the local rules to what is often considered standard operating procedure in the district. Even so, it is important for all litigants and counsel with cases in the District of Delaware to be aware of the revisions. BakerHostetler’s Delaware attorneys are available to provide any additional boots-on-the-ground advice and assistance relating to same. A summary of the key proposed revisions follows.

• Rule 3.2, “Patent Cases” – The proposed revisions include requirements for patent cases, including (1) attaching not only copies of the patents at issue but also “any re-examination certificates or certificates of correction” when filing an action, and (2) expressly requiring submission of the District of Delaware’s Supplemental Information for Patent Cases Involving an Abbreviated New Drug Application (ANDA) form along with any complaint or subsequent amended complaint in a Hatch-Waxman Act case.
• Rule 3.3, “Proceedings to Confirm, Vacate or Modify an Arbitration Award” – This is an entirely new rule addressing proceedings to confirm, vacate or modify arbitration awards, including how to e-file such an action and the required documents for such filings.
• Rule 5.1.1, “General Format of Papers Presented for Filing” – The revisions address a point of some frequent contention wherein filed papers are not “double-spaced” as the rule expressly requires but rather “exactly 24 point” or other similar format that is sometimes acceptable or even standard in other courts.
• Rule 5.2, “Service” – The rule clarifies that publicly filed documents do not require a certificate of service but documents filed under seal still do. The revisions also clarify that for documents that are served but not filed, once a party has counsel that is a participant in the CM/ECF system, the party is deemed to have consented to e-mail service.
• Rule 7.1.2, “Motions” – The revision and other revisions throughout, see, e.g., Rule 7.1.3(a) and (b), clarify that only a brief is allowed in support of a motion; there is no longer the option for filing a memorandum of points and authorities in lieu of a brief.
• Rule 7.1.2, “Motions” – There is a new subsection addressing the scope of the submission of citations of subsequent authority, clarifying that additional factual developments or legal precedent relevant to a pending motion submitted after briefing has concluded can only be filed with a “non-argumentative cover letter containing citations to the pending motion that is impacted.”
• Rule 7.1.5, “Reargument” – The revisions clarify that a reply brief in support of a motion for reargument may not be filed unless specifically granted by the court.
• Rule 15.1, “Form of a Motion to Amend and Its Supporting Documentation” – There is a new subsection concerning consent motions for amending pleadings, expressly requiring a blackline of the original pleading against the proposed amended pleading.
• Rule 16.1, “Fed. R. Civ. P. 16(b) Scheduling Conference” – The revisions streamline the topics to be addressed at the Rule 16 conference.
• Rule 16.4, “Requests for Extensions of Deadlines” – The revisions remove the requirement that a request for an extension of the deadlines for completion of discovery or postponement of the trial include either “a supporting affidavit by the requesting counsel’s client or a certification that counsel has sent a copy of the request to the client.”
• Rule 54.1, “Taxation of Costs” – The revisions extend the time to file a bill of costs, require the parties to meet and confer in attempt to reach agreement on the specific costs the prevailing party seeks to recover as taxable, and clarify the items – e.g., transcript fees, depositions – taxable as costs.
• Rule 83.5, “Bar Admission” – A new subsection specifies that an attorney admitted to practice by the Supreme Court of the State of Delaware who does not maintain an office in the District of Delaware must associate with Delaware counsel unless acting as an attorney on behalf of the United States or upon application to the court.
• Rule 83.7, “Substitution and Withdrawal of Attorney” – The revision specifies that when filing a motion to withdraw, the attorney seeking withdrawal must also file proof that the motion was served on the client pursuant to the remainder of the rule, i.e., at least 14 days prior to the motion being made and sent either via registered or certified mail to the client’s last known address.
• Form for Motion for Admission Pro Hac Vice. The form, appended to the end of the local rules, updates the pro hac vice  fee, which is currently $50.

The proposed revisions are not final. Comments and suggestions can be sent to the clerk’s office up to and including April 25.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.