Discovery, Federal Practice

Proposed Amendments to Local Rules for Middle District of North Carolina Open for Comment Until November 1, 2013

            On October 2, 2013, the Local Rules Committee of the Federal District Court for the Middle District of North Carolina announced that it has published for comment proposed amendments to the Local Civil Rules and Local Criminal Rules.  The proposed amendments to the Local Civil Rules include the addition of new rules and changes to some existing rules, including LR 5.4, 7.1(a), 7.3(i), 7.6, 15.1, 16.2, 16.3, 26.2, 37.1, 54.1, 72.4, 83.7, 83.9e(i), 83.10h(d), 83.11, and 103.2(b).  The only proposed amendment to the Local Criminal Rules includes the incorporation under LCrR 57.1 of proposed Local Civil Rules 5.4 and 7.3(i), which govern the filing documents under seal and the filing of subsequently decided authority, respectively.  We highlight several of the key proposed amendments and the process for comment below.

Local Civil Rule Amendments

  • LR 5.4 Filing Documents Under Seal: The proposed rule sets forth detailed requirements for seeking to file documents under seal.  Starting from the premise that public access to documents filed in court is a right protected by common law and the First Amendment, the rule requires a brief that “[e]xplains (for each document or group of documents) why less drastic alternatives to sealing will not afford adequate protection.”
  • LR 7.3(i) Suggestion of Subsequently Decided Authority: The proposed changes to this rule clarify that subsequently decided authority may be submitted after oral argument (in addition to as an addendum to a brief), and subsequently decided authority that may be submitted to the court is not restricted to “controlling authority,” but need only be “pertinent and significant” authority.
  • LR 7.6 Evidentiary Objections to Factual Allegations: The proposed rule provides that, in lieu of filing a motion to strike, a party may raise in a response or reply memorandum any evidentiary objections to factual allegations asserted in the opposing party’s motions to dismiss, motions for summary judgment, and other motions.   
  • LR 15.1 Motion to Amend Pleadings: The proposed rule requires that a motion to amend pleadings be accompanied by a copy of the proposed amended pleading. 
  • LR 16.2 & 16.3 Rule 26(f) Report Forms: The proposed changes to these rules modify the Rule 26(f) Report Form to clarify that Rule 26(a)(2)(B) reports and Rule 26(a)(2)(C) disclosures are due during the discovery period, providing an opportunity for specific dates to be determined.  The changes also modify the 26(f) Report Form to clarify that supplements will be made in accordance with Rule 26(e) or as otherwise provided by the Court, rather than providing for specific times or intervals to be entered into the report.   
  • LR 26.2 Protective Orders and Exchange of Confidential Information in Discovery: The proposed rule provides that a movant for protective order must establish how the information qualifies for protection under Rule 26(c) and that good cause exists for preventing disclosure of the information.  The proposed rule also permits parties to enter into protective agreements and clarifies how protected documents will be treated for purposes of filing under seal with the Court. 
  • LR 83.7 Photographs, Recordings & Broadcasts: The proposed changes to this rule clarify the procedure by which attorneys may request court approval for the use of “certain electronic devices” in the court environs, expanding the prior language which was limited to laptop computers.  The proposed changes specify that such electronic devices cannot be used for photographing, audio recording, verbatim reproducing, or broadcasting any proceeding. 
  • LR 83.9e Procedures for Mediated Settlement Conferences: The proposed changes to this rule provide that statements and conduct occurring at mediated settlement conferences or in communications with a mediator during the mediation process are not discoverable and are inadmissible in the action, with limited exceptions. 
  • LR 83.11 Referral of Bankruptcy Matters: The proposed change to this rule provides that if it is determined in a matter that was referred to the Bankruptcy Court that the entry of a final order or judgment by a Bankruptcy Judge would be inconsistent with Article III of the U.S. Constitution, the Bankruptcy Judge must hear the matter and make proposed findings of fact and conclusions of law for the District Court.  

Local Criminal Rule Amendments

  • LCrR 57.1 Incorporation of Certain Local Rules of Civil Practice: The proposed changes to this rule incorporate into the local criminal rules the proposed amendments to LR 5.4 Filing Documents Under Seal and LR 7.3(i) Suggestion of Subsequently Decided Authority (described above), applying them fully to criminal proceedings.

Comment Process & Timeline

The Local Rules Committee is accepting written comments via e-mail and U.S. mail.  Comments must be received by November 1, 2013 at the following addresses:

LocalRuleComments@ncmd.uscourts.gov or

Clerk, U.S. District Court
324 W. Market Street
Greensboro, NC 27401
Attention:  Local Rules Committee

You can access a redlined copy of all proposed Local Civil Rule amendments and Local Criminal Rule amendments, and an abbreviated summary of all proposed Local Civil Rule and Local Criminal Rule changes on the District Court’s Website: http://www.ncmd.uscourts.gov/proposed-local-rule-changes.

Tony Lathrop

About Tony Lathrop

Tony Lathrop brings experience and a high level of analytical ability, professional credibility and creativity to handling litigation matters. He rigorously represents his clients' interests in a diverse range of claims and actions. A certified mediator, Mr. Lathrop has extensive experience representing business clients in mediation. His service to the legal profession in North Carolina has allowed him to develop relationships across the state that benefit the firm's clients.

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