Diving Into Judge-Made Standing Instructions
Standing instructions are important. They are clear that parties must use good faith in discovery, and that judges will not hesitate to sanction a party that does not.
This article will provide an overview of the Northern District2 standing instructions, paying particular attention to litigation-related topics. Of those, most judges focus on some of the same topics: pleadings, discovery, depositions, and confidentiality/protective orders. These standing instructions are important. They are clear that parties must use good faith in discovery, and that judges will not hesitate to sanction a party that does not.
This article will refer to the standing instructions of the Northern District judges without reference to any individual, so as to focus on the principles themselves rather than the judges. If you have any case in federal court, it is critical that you read and familiarize yourself with your judge’s specific instructions.
“Standing Instructions” v. “Standing Orders”
First, some terminology. Lawyers often incorrectly call standing instructions “standing orders.” Standing orders are subject to public notice and comment requirements and the Northern District of Georgia publishes its standing orders on its website here: http://www.gand.uscourts.gov/standing-orders. What most lawyers have in mind when they use the term “standing order” is actually a “standing instruction.” The Northern District of Georgia’s website publishes the standing instructions for each judge here: http://www.gand.uscourts.gov/instructions-individual-judges.
Standing instructions often refer the parties to Fed. R. Civ. P. 8(b) (hereinafter “FRCP”), which requires a party to admit, deny, or state insufficient knowledge or information to form a belief as to the truth of the matter asserted. Importantly, the judges instruct parties that “evasive” denials “shall be” disregarded and the averments to which they are directed “shall be deemed admitted” in accordance with FRCP 8(d). The judges also instruct the parties to not deny an averment in his opponent’s pleadings on the grounds that the “averment raises a matter of law rather than fact.”3 Of course, this could be fertile ground for securing admissions if the defense does not heed your judge’s instructions.
General Principles of Discovery
A majority of the Northern District judges discuss the “general principles of discovery” in their standing instructions. These instructions direct the litigants’ attention to FRCP 26(b) and 26(g). FRCP 26(b) governs the scope of discovery and FRCP 26(g) imposes good faith obligations on the parties when responding to discovery. The standing instructions generally direct the parties to make their initial disclosures complete and correct at the time they are made and to not reserve the right to supplement at a later date. The instructions also explicitly warn that violators can be sanctioned.
For the purpose of this article, FRCP 26(g) is more important than FRCP 26(b) because FRCP 26(g) imposes a certification requirement that “must” result in sanctions to a party or their attorney or both if a certification violates this rule. FRCP 26(g) applies to “every” disclosure under FRCP 26(a)(1), (a)(3), and to “every” discovery request, response, and objection. Because the Northern District judges consistently reference FRCP 26(g) in their standing instructions and because there is no state counterpart to this rule, the full text of FRCP 26(g) is quoted below. This rule has teeth. Use it.
Boilerplate Objections and
Most judges’ standing instructions prohibit boilerplate and general objections, citing FRCP 33(b)(4) for interrogatories, and FRCP 34(b)(2)(B) & (C) for requests for production of documents. This means that parties are prohibited from including a “Preamble” or “General Objections” section stating that the party objects to the discovery request “to the extent that” it violates some rule pertaining to discovery. The standing instructions tell the parties that each discovery request must be met with “every specific objection” that applies to that “particular request.” For trial attorneys, this means that we need to delete our preambles or general objections and only make specific objections to the adversary’s discovery requests. It also means that the defense cannot list its recycled litany of general objections. Instead, they must limit their objections to individual discovery requests, which are discussed in the sidebar to the left.
The standing instructions have helpful commentary and analysis on how to draft and respond to interrogatories. The instructions encourage the parties to write interrogatories that are “brief, straightforward, neutral, particularized and capable of being understood by jurors when read in conjunction with the answer.” The instructions also tell the responding party to “reasonably interpret” the interrogatories and answer them so as to “provide information” rather than “withhold information.” In addition, if a party produces a document in response to an interrogatory, the document “must be” attached or identified and made available for inspection. The instructions warn the parties that a litigant’s signature constitutes a certification under FRCP 26(g).
The standing instructions also help when it comes to privilege objections. If a privilege objection is made, the claim must be supported by “a statement of particulars” so that the judge can assess the validity of the privilege. For example, in the case of a document, a statement of particulars should specify the privilege relied on and include “the date, title, description, subject, and purpose of the document; the name, position, and email address of the author; and, the names, positions, and email addresses of the other recipients.” In the case of an oral communication, a statement of particulars should include the privilege relied on and the “date, place, subject matter, the purpose of the communication; and, the names and identifying information of all individuals present.”
Requests for Production or Inspection
The standing instructions likewise provide helpful direction in drafting and responding to requests for production or inspection. To the extent possible, parties are directed to “specify with particularity” the title and description of documents or records requested. The standing instructions encourage the parties to get the information needed for specification through “informal discovery.” When responding to requests, the standing instructions direct the parties to FRCP 34(b)(2)(E). In general, the Northern District judges prohibit the all-too-familiar document dump. The instructions also frequently cite to FRCP 34(b)(2)(C), which states that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” The judges want the parties to identify any information that they are withholding so that they, the judges, can assess whether the material can be withheld. The instructions also remind the parties that the certification requirement of FRCP 26(g) applies.
Requests for Admissions
The instructions consider requests for admission as an efficient way to narrow issues for trial and of making a record of informal discovery exchanges, including stipulations and matters subject to judicial notice. Not surprising, the instructions also warn the parties that the certification requirement of FRCP 26(g) applies and that the responding party has a duty to make a reasonable inquiry before responding.
The judges’ standing instructions warn against obfuscating tactics during depositions. In particular, the instructions cite to FRCP 30(c)(2), which states that “objections to the manner of taking the deposition, to the evidence, or to the conduct of a party shall be noted on the record, but the evidence objected to shall be taken subject to the objection.” Fed. R. Civ. P. 30(c)(2). Moreover, unless there is a good faith claim of privilege or witness harassment, attorneys should not instruct their clients to not answer a question. The standing instructions warn the parties that instructing a party to not answer a deposition question may lead to sanctions under FRCP 37. The standing instructions generally prohibit speaking objections and other tactics for coaching a witness during a deposition. In a departure from state court practice, some of the standing instructions state that depositions after the close of discovery, even to preserve evidence, will not be allowed absent a good faith reason and court permission. Therefore, it’s important to make sure that you complete all depositions inside the discovery period.
As one of many examples where failing to know the standing instructions can harm your client, some judges hold that attorney-client communications during a deposition (i.e., at any point between swearing-in and the end of the deposition) are not protected, and are fair game for questioning. This is a good practice. It helps avoid common gamesmanship tactics by all parties. It is also an important reminder that deponents are the same as witnesses who appear on the stand at trial, and should be treated as such. Regardless of what side is being questioned, if the defending attorney cannot take the witness into the hallway for a testimony coaching session during trial, they should not be allowed to do so in a deposition.
Most of the standing instructions devote a lot of attention to motion practice, especially regarding discovery disputes. Because each judge has a different procedural requirement, this article will not address the judges’ standing instructions on handling discovery-dispute motions practice. Without going into detail, most of the instructions direct the parties to submit discovery disputes to the Court’s attention by informal means, such as email, so that a conference can be held. Almost unanimously, the judges desire to handle discovery disputes on the phone or by some other means without having to read endless motions. Read your judge’s standing instructions to know how she or he wants you to handle discovery disputes.
Confidentiality and Sealing Documents
The majority of judges do not favor sealing documents and marking them confidential. Most of the standing instructions reference the Court’s Standing Order 04-02 regarding sensitive information and public access to electronic case files. Most of the judges will only seal specific portions of documents that contain or refer to confidential information. Helpfully, the judges provide examples of what they consider to be confidential.
According to some of the standing instructions, “documents and tangible things are not ordinarily truly confidential unless they constitute either (1) a ‘trade secret,’ as defined by Section 1(4) of the Uniform Trade Secrets Act, or for cases applying Georgia law, O.C.G.A. § 10-1-761(4); (2) personal identifying information, such as a social security number; or (3) personal health information protected by the Health Insurance Portability and Accountability Act.” Under this legal authority, it will be challenging for the defense to argue that their client’s policies and procedures are confidential. Policies and procedures, unlike trade secrets, are supposed to be disseminated so that employees know what to do and how to do it.
At least one standing instruction warns the litigants that the Court “will not hesitate” to sanction an attorney or a party or both for “abusing a protective confidentiality order by too readily designating documents, tangible things and/or information as ‘Confidential’ and/or Some of the standing instructions also ‘Confidential – For Attorney’s Eyes Only.’ This same standing instruction also tells the parties that the Court “will not ordinarily enter a final judgment order that directs one or more of the parties to comply with the terms of a confidential settlement agreement and/or that has the Court retain jurisdiction for purposes of enforcing the confidential settlement agreement.”
This article provided a general overview of the common litigation-related topics that are the focus of the judges’ standing orders in the Northern District of Georgia. If you have a case in the Northern District of Georgia, read your judge’s standing instructions. A few times. Some of the instructions are close to fifty pages long and have procedural requirements that are not found in the Federal Rules of Civil Procedure. Also, carefully read Federal Rule of Civil Procedure 26(g). This rule does not have a counterpart in the Georgia Civil Practice Act and the judges frequently cite this rule in their standing instructions, warning that they will not hesitate to levy sanctions if this rule is violated. ●
ABOUT THE AUTHOR
Drew Gilliand is a trial attorney with Atlanta-based Taps & Gilormo.
Under Federal Rule of Civil Procedure 83, judges may “regulate practice in any manner consistent with federal law.”
Georgia has three main federal districts. This article focuses only on the Northern District. Unfortunately, including the Middle and the Southern Districts would lengthen this article beyond the limitations of this publication.
This language is used by more than one judge in their standing instructions, so I quote it directly.
(g) Signing Disclosures and Discovery Requests, Responses, and Objections.1 Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name – or by the party personally, if unrepresented – and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.2 Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention. 3 Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.