District Court Highlights
Notice of Amendment to Local Rule 37.1
So you have a case pending in the District of Kansas but need to file a motion to compel/enforce a third-party subpoena in the Western District, which is where the third party is located. Under current Local Rule 37.1, no written discovery motion shall be filed until a telephone conference with the judge and opposing counsel has been held. However, there is no Western District judge assigned to the matter, as the main case is in Kansas and there is not a case in Missouri yet.
This dilemma prompted the Federal Practice Committee to request the Court consider revising Local Rule 37.1 to provide guidance in this context. And the Court has approved the addition of a new sub-section (b) to 37.1 as follows:
- Except when authorized by an order of the Court, the Court will not entertain any discovery motions, until the following requirements have been satisfied:
- Counsel for the moving party has in good faith conferred or attempted to confer by telephone or in person with opposing counsel concerning the matter prior to the filing of the motion. Merely writing a demand letter is not sufficient. Counsel for the moving party shall certify compliance with this rule in any discovery motion. See Rule 26(c), Federal Rules of Civil Procedure and Crown Center Redevelopment Corp. v. Westinghouse Elec., 82 F.R.D. 108 (W.D. Mo. 1979); and
- If the issues remain unresolved after the attorneys have conferred in person or by telephone, counsel shall arrange with the Court for an immediate telephone conference with the judge and opposing counsel. No written discovery motion shall be filed until this telephone conference has been held.
- Sub-section (a) shall not apply to an initial motion requesting this Court compel or deny discovery pursuant to a subpoena issued under the authority of the Western District if the primary case is pending in another District. Once such a motion has been filed and a miscellaneous case initiated within the Western District, counsel shall then follow the requirements in sub-section (a) to resolve the discovery dispute.
This rule change will be posted for comment in early November. Pending comments, the amendment will be effective Jan. 1, 2012. Also at the suggestion of the Federal Practice Committee, the Clerk’s office has revised the process for initiating a miscellaneous case with a motion. See the next section on Filing Miscellaneous Cases for additional direction on this topic.
Filing Miscellaneous Cases
In conjunction with the revisions to Local Rule 37.1, it was suggested that the court look at how miscellaneous cases are filed in CM/ECF because the process did not adequately address cases in which a motion was the initiating document. On Aug. 31, 2011, the court adopted a new procedure for opening miscellaneous cases.
To file a miscellaneous case
- From the Complaints and Other Initiating Documents category, select Miscellaneous Case Initiating Document. A list of miscellaneous actions will be presented.
- Select the appropriate choice for the type of miscellaneous case.
Example: If the miscellaneous case involves a motion (such as a motion to enforce subpoena), select Motion from the miscellaneous action list. If indicating the miscellaneous action is a motion, you will be presented with the following message:
“You have selected to file a motion to initiate a miscellaneous case. Upon completion of this event, you must file your motion using the applicable motion event. If there is no applicable motion event, please file your document using the Motion for Order event.
You will not be prompted to upload a document, but should continue with the filing, pay the filing fee and receive the Notice of Electronic Filing.
- Immediately after docketing the Miscellaneous Case Initiating Document event, you must file the motion separately using the appropriate motion event. If there is not an appropriate motion event, file the motion using the Motion for Order event. You will then be prompted to attach a document to this event. When the filing is complete and the Notice of Electronic Filing is displayed, you will be able to file suggestions in support and link the document to the applicable motion.
If you have questions when filing a miscellaneous case, please contact the Clerk’s Office at 816-512-5000.
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