Judge Mark A. Kearney
Individual Rules, Standing Orders & Policies
Limits & Logistics
Document Limits
Courtesy Copies
Emergency Redacted Documents
Filings > 10 pages
- 2 copies • Hand Delivery
Filings > 35 pages
Joint Exhibit Book
- 2 copies • At Voir Dire
Adjournments
- The parties are expected to follow court-ordered scheduling dates or, absent an order, the default dates in the Federal or Local Rules unless they demonstrate good cause for a change in writing.
- Requests to extend response time or scheduling-order dates must be made by motion or stipulation demonstrating good cause.
- Letter requests are not accepted for extensions of time set by the Federal or Local Rules or scheduling Orders.
- +6 more
Request must include
- A continuance request must be filed as a motion stating its reasons at least 14 days before the scheduled trial date.
Communication
Clerk
Chambers
Phone
Clerk
Page & Word Limits8 rules
Correspondence, not to exceed two pages, may be emailed, faxed or mailed to Chambers copied to all counsel and unrepresented parties only in the following instances:
- Correspondence
- Up to 2 pages
Short motions seeking to enforce or excuse discovery or scheduling obligations are limited to three pages.
- Short motion
- Up to 3 pages
- Discovery motions
- Scheduling motions
Court's wording
Limited discovery and all scheduling disputes resolved by short motion: Judge Kearney will promptly consider a short motion of three pages or less, double-spaced twelve-point font, with an attached proposed order seeking to enforce or excuse timely and full compliance with discovery and scheduling obligations under the Federal Rules, these Policies, and our Orders.
noticing their intent to file a response of three pages or less within forty-eight hours of the motion filing.
- Response
- Up to 3 pages
A discovery motion and, absent an order, its response are limited to seven pages.
- Discovery motion
- Up to 7 pages
- Response
- Up to 7 pages
Court's wording
A discovery motion unable to be presented in three pages or less may be presented in a motion not exceeding seven pages, double-spaced twelve-point font, along with a proposed order. Absent an Order, a response may be filed within three days, also limited to seven pages, double-spaced twelve-point font.
A discovery motion unable to be presented in three pages or less may be presented in a motion not exceeding seven pages, double-spaced twelve-point font, along with a proposed order.
- More than 3 pages
- Discovery motion
- Up to 7 pages
Support and opposition memoranda are limited to twenty pages, and reply briefs are limited to ten pages.
- Brief
- Up to 20 pages
- Reply brief
- Up to 10 pages
Exception
More pages with leave of court
Court's wording
Memoranda filed in support of, or in opposition to, a motion is limited to twenty pages of double-spaced twelve-point font. Reply briefs are not required and Judge Kearney may rule before filing of reply briefs if warranted. Reply briefs, without a proposed order, are permitted without our leave if filed and served within seven days of the date a non-moving party files its Opposition, may not exceed ten pages, and must be limited to issues newly raised in the Opposition. Briefs in excess of these page limits and sur-reply briefs are not permitted unless leave is granted upon motion.
The motion is limited to five pages of double-spaced twelve-point font and is analogous to a Summary of Argument which also details the requested relief.
- Motion
- Up to 5 pages
- Format
- Double-spaced; 12-point
Memoranda in support of, or opposing, a Rule 56 motion is limited to twenty-five pages, double-spaced, twelve-point font attached to the Motion.
- Page limit
- Up to 25 pages
- Format
- Double-spaced; 12-point
- Rule 56 motions
Document Format Requirements15 rules
A party filing an amended pleading as a matter of course under Fed. R. Civ. P. 15(a)(1) must attach as an exhibit a blacklined or highlighted copy of the pleading solely to show the changes in the pleading.
The proposed amended pleading attached to a motion to amend must be blacklined or highlighted solely to show the changes.
Court's wording
A motion to amend a pleading shall: identify all parties’ positions on the proposed amendments and attach the proposed amended pleading either blacklined or highlighted solely to show the change in the pleading.
The specified short motions must be double-spaced and use twelve-point font.
- Font size
- 12 points
- Line spacing
- Double
- Discovery motions
- Scheduling motions
Court's wording
Limited discovery and all scheduling disputes resolved by short motion: Judge Kearney will promptly consider a short motion of three pages or less, double-spaced twelve-point font, with an attached proposed order seeking to enforce or excuse timely and full compliance with discovery and scheduling obligations under the Federal Rules, these Policies, and our Orders.
Discovery motions and responses under this procedure must be double-spaced in twelve-point font.
- Font size
- 12 points
- Line spacing
- Double
- Discovery motion
- Response
Court's wording
A discovery motion unable to be presented in three pages or less may be presented in a motion not exceeding seven pages, double-spaced twelve-point font, along with a proposed order. Absent an Order, a response may be filed within three days, also limited to seven pages, double-spaced twelve-point font.
Memoranda filed in support of, or in opposition to, a motion is limited to twenty pages of double-spaced twelve-point font.
- Font size
- 12 points
- Line spacing
- Double
- Supporting memorandum
- Opposition
All pages of the appendix shall be consecutively “Bates stamped” and referenced in the motions and briefs by the Bates number assigned each page. For example, “1a, 2a, 3a, etc.”
Any additions to the movant’s appendix shall also be consecutively Bates-stamped, beginning at the page number where the movant’s appendix ended, and shall include a table of contents.
Videotaped testimony should begin with the witness being sworn. After Judge Kearney rules on any objections, counsel must edit the testimony before offering the videotaped testimony at trial.
The parties shall also provide the proposed instructions on a CD or thumb drive in Microsoft Word format.
We will not retain hard copies and binders of exhibits and counsel must provide an electronic version of the admitted exhibits before the verdict to ensure we preserve exhibits for post-trial review.
Proposed jury instructions, separately numbered, shall include a table of contents and be submitted on a separate sheet of paper, double spaced, with accurate quotes from, and pinpoint citations to cases and pattern jury instructions where appropriate.
Formatting
- •Number the proposed instructions separately
- •Submit them on a separate sheet of paper
- •Use double spacing
The change of plea memorandum shall be provided in Microsoft Word Format by email to Chambers_of_Judge_Kearney@paed.uscourts.gov.
Formatting
- •Microsoft Word Format
Pre-Sentence Investigation Reports and sentencing memoranda delivered to chambers must be in Microsoft Word format.
Formatting
- •Microsoft Word Format
Court's wording
Pre-Sentence Investigation Reports and Sentencing Memoranda shall also be promptly delivered to chambers in Microsoft Word Format by email to Chambers_of_Judge_Kearney@paed.uscourts.gov.
Unless otherwise agreed by the parties, the exhibits will be presented in chronological order with the first document representing the oldest dated document.
The motion does not need to be in a numbered paragraph format.
Document Filing Requirements67 rules
This limited correspondence must include a specific and candid description of the situation requiring Judge Kearney’s attention and the position of the opposing party.
Filings referencing a website shall attach a screenshot of the cited website reference as an exhibit.
Counsel must separately analyze the issues under our Court of Appeals’s analysis in In re Avandia Marketing1 and guided by Chief Judge Connolly’s analysis in In re Storag Etzel GmbH2.
Judge Kearney requires local counsel sign all filings.
Motions for pro hac vice admission should be made as soon as possible and must be filed by an attorney: (1) admitted to practice and in good standing before this Court; (2) whose appearance has been entered in the case in which the motion is made and who confirms his or her continuing obligations under Section I.K. of our Policies below; (3) describing the reasons the client requires this lawyer’s special admission, i.e., what does the applicant offer which cannot be provided by the attorney admitted in our Court; and, (4) reciting the positions of all counsel regarding the motion.
Each attorney seeking pro hac vice admission must submit an affidavit stating bar admission details and status, disciplinary history, agreement to follow the applicable professional and local rules, and an undertaking to keep moving counsel advised of the case and material developments.
Court's wording
The motion must also be accompanied by the affidavit of each attorney seeking pro hac vice admission swearing: i. Year and jurisdiction of each bar admission: ii. Status of the attorney’s admission(s), i.e., active or inactive, in good standing, etc.; iii. Whether the attorney has ever been suspended from the practice of law in any jurisdiction or received any public reprimand by the highest disciplinary authority of any bar in which the attorney has been a member; iv. The affiant/declarant (a) has in fact read the most recent edition of the Delaware Rules of Professional Conduct and the Local Rules of this Court and (b) agrees to be bound by both sets of Rules for the duration of the case for which pro hac vice admission is sought; and, v. If granted pro hac vice status, the affiant/declarant will in good faith continue to advise counsel who has moved for the pro hac vice admission of the current status of the case for which pro hac vice status has been granted and of all material developments in the case.
In patent non-ANDA cases, the comprehensive joint report of the Rule 26(f) meeting shall include proposed dates for the exchange, in steps, of required information to plan for a Markman hearing as soon as practicable under Fed. R. Civ. P. 1:
In patent non-ANDA cases, the defendant must produce core technical documents sufficient to show how the accused products work and produce their sales figures.
Court's wording
Defendant shall produce core technical documents related to the accused product(s), sufficient to show how the accused product(s) work(s), including but not limited to non-publicly available operation manuals, product literature, schematics, and specifications. Defendant shall also produce sales figures for the accused product(s).
Plaintiff shall produce an initial claim chart relating each known accused product to the asserted claims each such product allegedly infringes.
Plaintiff shall identify the accused product(s), including accused methods and systems, and its damages model, as well as the asserted patent(s) that the accused product(s) allegedly infringe(s). Plaintiff shall also produce the file history for each asserted patent.
The joint Rule 26(f) report must be comprehensive and comply with the court-provided form, unless the requirement is waived for good cause.
Court's wording
Unless waived for good cause, our scheduling Order will begin discovery and require the parties to file a comprehensive joint report of the Rule 26(f) meeting at least one day before the initial pretrial conference fully compliant with the form provided at https://www.paed.uscourts.gov/judges-info/district-court-judges/mark-a-kearney.
Finally supplement, among other items, the identification of all accused products and of all invalidity references.
A threshold motion must include a certificate signed by movant's trial counsel describing a meaningful, good-faith conferral and the communications and resolution discussed; this does not apply to pro se parties.
Court's wording
Attach a certificate signed by the movant’s trial counsel to the threshold motion confirming the movant meaningfully conferred in good faith with the represented party (does not apply to pro se parties) subject to the anticipated motion including specifically identifying the communications and shared resolution to resolve the issue particularly on motions to dismiss based on the perceived inadequacy of the pleading or venue issues which can often be readily resolved by an amended pleading or stipulated transfer or remand;
Date for Markman hearing and scope of Markman hearing.
The exchange of final infringement contentions.
Defendant shall produce its initial invalidity contentions for each asserted claim, as well as the known related invalidating references.
A motion to amend must identify all parties’ positions and attach a proposed amended pleading marked to show only the changes.
Court's wording
A motion to amend a pleading shall: identify all parties’ positions on the proposed amendments and attach the proposed amended pleading either blacklined or highlighted solely to show the change in the pleading.
Specific reasons for not participating in a form of early ADR shall be specifically detailed in the Rule 26(f) report.
Contested scheduling. If a non-incarcerated party opposes a continuance or extension, the movant may move under Section IIIA. below identifying the basis for the continuance or extension and detail the positions of other parties with a proposed order.
- Document
- Contested scheduling motion
Include
- •Proposed order
A party filing an amended pleading as a matter of course under Fed. R. Civ. P. 15(a)(1) must attach as an exhibit a blacklined or highlighted copy of the pleading solely to show the changes in the pleading.
A short motion seeking to enforce or excuse discovery or scheduling obligations must include an attached proposed order.
- Document
- Short motion
Include
- •Proposed order
Court's wording
Limited discovery and all scheduling disputes resolved by short motion: Judge Kearney will promptly consider a short motion of three pages or less, double-spaced twelve-point font, with an attached proposed order seeking to enforce or excuse timely and full compliance with discovery and scheduling obligations under the Federal Rules, these Policies, and our Orders.
If a discovery dispute cannot be resolved, we expect counsel will provide a substantive, specific, and meaningful certification including describing the opposing party’s position. For example, it is not sufficient to certify “counsel can’t reach opposing counsel”; “reasonable efforts have been made but were unsuccessful”; “counsel have conferred in good faith”; “counsel repeatedly conferred with opposing counsel” or similar generalities. See, e.g., Naviant Marketing Solutions, Inc. v. Larry Tucker, Inc., 339 F.3d 180, 186 (3d Cir. 2003); Evans v. American Honda Motors Co., Inc., No. 00-2061, 2003 WL 22844186 at *1-2 (E.D. Pa. Nov. 26, 2003). Failure to include a certification or insufficient certification may result in summary denial without substantive consideration.
The parties may not file a memorandum of law absent leave.
A discovery motion unable to be presented in three pages or less may be presented in a motion not exceeding seven pages, double-spaced twelve-point font, along with a proposed order.
- Document
- Discovery motion
Include
- •Proposed order
A discovery motion seeking to compel a non-party must include a certificate describing simultaneous service and a cover letter directing the non-party to the Court’s Policies and the obligation to respond timely.
- Document
- Discovery motion
Must include
- •Certificate of service
Court's wording
A party seeking an order compelling discovery compliance from a non-party must attach a certificate of service to the discovery motion describing their simultaneous service of the motion by email, hand delivery, or fax upon the non- party possibly subject to the motion and, in a cover letter, direct the non-party to these Policies on the Court’s website and the obligation to timely respond.
Parties opposing the motion must attach a proposed order referring to the motion, docket filing number, and specific basis for denying the requested relief.
- Document
- Opposition
Must include
- •Proposed order
For covered requests made without all parties’ stipulation, the motion must meaningfully and fully describe the opposition to the requested relief.
Court's wording
Counsel seeking relief without a stipulation of all parties and other than under Federal Rules of Civil Procedure 12, 37, or 56, including challenging the admissibility of expert or fact evidence, shall provide a meaningful fulsome description of the opposition to the requested relief as part of the Motion.
All grounds for relief must be set forth in a single, comprehensive motion, accompanied by a proposed order and memorandum.
- Document
- Motion
Must include
- •Proposed order
Any motion filed under Fed. R. Civ. P. 56 shall include a separately filed Statement of Undisputed Material Facts which details, in numbered paragraphs, the material facts the moving
- Document
- Rule 56 motion
Must include
- •Statement of facts
Only those facts which bear on dispositive material issues shall be included in the Statement of Undisputed Facts.
Each summary-judgment fact statement must cite specific record material and identify the document page or deposition line and page relied on.
Court's wording
Statements of material facts in support of or in opposition to a motion for summary judgment shall include specific and not general references to the parts of the record supporting each of the statements. Each stated fact shall cite the source relied upon, including the page of any document or line and page number of any deposition to which reference is made.
An opposition to summary judgment must separately file a statement responding to disputed numbered facts and listing additional facts that preclude summary judgment.
Court's wording
Opposition to a motion for summary judgment shall include a separate filing of a statement of material facts, responding to the numbered paragraphs in the movant’s Statement of Undisputed Facts, which the respondent contends present genuine issues for trial. The responding party also shall set forth, in separate numbered paragraphs, any additional facts which the respondent contends preclude summary judgment.
The appendix shall include a table of contents.
- Document
- Summary judgment appendix
Must include
- •Table of contents
Any additions to the movant’s appendix shall also be consecutively Bates-stamped, beginning at the page number where the movant’s appendix ended, and shall include a table of contents.
- Document
- Appendix additions
Must include
- •Table of contents
Memoranda in support of, or opposing, a Rule 56 motion is limited to twenty-five pages, double-spaced, twelve-point font attached to the Motion.
On all cross-motions under Rule 56, the cross-movants must consult before filing to prepare a single joint appendix.
Upon filing, the movant(s) shall also file a separate appendix of all exhibits or its affidavits which may relate to the issues raised in the motion.
Unless the Court orders otherwise, the parties must prepare simultaneous pretrial memoranda satisfying Local Rule 16.1(c) and including the listed stipulations, deposition testimony, witness testimony, and exhibit schedule.
Court's wording
Unless otherwise ordered by Judge Kearney, the parties shall prepare simultaneous pretrial memoranda meeting the requirements of Local Rule of Civil Procedure 16.1(c), and also include: (1) All stipulations of counsel; (2) Attached highlighted deposition testimony (including videotaped deposition testimony) of admissions or unavailable witnesses which the party intends to offer during its case-in-chief. The pretrial statement should include citations to the page and line number; (3) The substance of the testimony of each witness. Identifying a witness as offering testimony on liability and/or damages without specifics is insufficient; and, (4) A schedule with description of all proffered exhibits.
Oppositions shall be in memoranda form.
Any party planning to use such equipment must submit a letter to chambers, as early as possible, but no later than one week before trial, identifying the equipment it will use at trial.
The parties will prepare a joint exhibit book with all exhibits counsel may use at trial based on the rulings along with a schedule of exhibits.
- Document
- Joint exhibit book
May include
- •Exhibit list
The Scheduling Order will note the date on which the parties shall file proposed jury instructions on substantive issues unique to your matter, along with proposed verdict forms or special interrogatories to the jury.
Proposed jury instructions, separately numbered, shall include a table of contents and be submitted on a separate sheet of paper, double spaced, with accurate quotes from, and pinpoint citations to cases and pattern jury instructions where appropriate.
- Document
- Proposed jury instructions
Must include
- •Table of contents
The guilty plea agreement must state whether the plea is a general plea of guilty, a conditional plea, or a plea of nolo contendere.
Before a defendant offers a guilty plea, counsel must complete and review the listed plea documents with the defendant and provide copies to Judge Kearney.
Court's wording
Before a defendant offers a guilty plea, counsel must complete the guilty plea memorandum, guilty plea statement, and acknowledgement of rights and review those documents with the defendant. Counsel must also provide copies of those documents to Judge Kearney.
A continuance motion must include the defendant’s signed consent form and a proposed order meeting the stated Speedy Trial Act and ends-of-justice requirements.
- Document
- Continuance motion
Must include
- •Proposed order
Court's wording
Any such motion must be accompanied by the form of consent to continuance signed by the defendant, as provided by Judge Kearney after receipt of the motion and proposed order which, if approved by Judge Kearney, would grant the relief sought by the motion. The proposed form of order must be consistent with the requirements of the Speedy Trial Act, 18 U.S.C. § 3161(h)(8), and must include a proposed finding explaining in reasonable detail why the ends of justice served by granting the requested continuance outweigh the best interest of the public and the defendant in a speedy trial.
Absent specific Order, counsel shall submit and serve proposed voir dire questions seven days before jury selection.
Filing & Service rules
Electronic Filing Rules
Counsel must file papers required by the Federal or Local Rules of Civil and Criminal Procedure electronically through ECF.
Counsel shall file all papers required to be filed under the Federal or Local Rules of Civil and Criminal Procedure electronically through ECF.
Page 2 | I.E. Electronic Case Filing (“ECF”) is required of all counsel
Filing Timing and Cure Windows
Thoughtful opposition to a motion for pro hac vice must be filed within one business day of the filing of the motion.
Thoughtful opposition to a motion for pro hac vice must be filed within one business day of the filing of the motion.
Page 4 | J. Pro hac vice motions
The parties must file a comprehensive joint Rule 26(f) report at least one day before the initial pretrial conference, unless the requirement is waived for good cause.
Unless waived for good cause, our scheduling Order will begin discovery and require the parties to file a comprehensive joint report of the Rule 26(f) meeting at least one day before the initial pretrial conference
Page 5 | II. Initial steps in civil matters
twenty-four hours of filing, noticing their intent to file a response of three pages or less within forty-eight hours of the motion filing.
twenty-four hours of filing, noticing their intent to file a response of three pages or less within forty-eight hours of the motion filing.
Page 9
Unless the Court orders otherwise, a response may be filed within three days.
Absent an Order, a response may be filed within three days, also limited to seven pages, double-spaced twelve-point font.
Page 9 | Discovery motion practice
A response due on a weekend or federal holiday is due by noon EST on the next succeeding business day.
A response due on a weekend or federal holiday is due by Noon EST on the next succeeding business day.
Page 9
A non-party response due on a weekend or federal holiday is due by noon EST on the next succeeding business day.
A response from a non-party due on a weekend or federal holiday is due by Noon EST on the next succeeding business day.
Page 9 | Discovery motions involving non-party witnesses
A party filing a post-trial motion must order the required transcript and pay the reporter’s deposit within fourteen days, unless the Court excuses the requirement for good cause.
A party seeking to challenge trial and pretrial rulings through a timely post-trial motion must strictly comply with Federal Rules of Civil and Criminal Procedure 59 and 60 and with Local Rule 7.1(e) requiring ordering and paying a deposit for the trial transcript required by the court reporter within fourteen days of filing any post-trial motion unless Judge Kearney excuses this requirement for good cause.
Page 10 | IV. Motion practice for non-discovery or non-scheduling issues in all matters; D. Post-trial motion procedure
A reply must be filed and served within seven days of the Opposition to proceed without leave.
Reply briefs, without a proposed order, are permitted without our leave if filed and served within seven days of the date a non-moving party files its Opposition, may not exceed ten pages, and must be limited to issues newly raised in the Opposition.
Page 10 | IV. Motion practice for non-discovery or non-scheduling issues in all matters; C. Briefs/legal memoranda
The required equipment-identification letter must be submitted as early as possible and no later than one week before trial.
Any party planning to use such equipment must submit a letter to chambers, as early as possible, but no later than one week before trial, identifying the equipment it will use at trial.
Page 13 | X. Trial Procedure — B. Courtroom technology.
After a demand for trial de novo from an arbitration award, the Court will schedule trial within sixty days of the appeal, on the earliest date available.
Upon demand for trial de novo from an arbitration award, Judge Kearney will issue a Scheduling Order setting the date for trial to occur within sixty days of the appeal at the earliest date available to the Court.
Page 13 | IX. Arbitration
The specified pretrial-conference issues must be submitted at least seven days before the conference.
If Judge Kearney holds a pretrial conference, any issues related to voir dire, motions in limine, jury instructions, and jury verdict forms must be submitted at least seven days prior to the pretrial conference.
Page 18 | XII.C. Pretrial conferences
Unless a specific order provides otherwise, proposed voir dire questions must be submitted seven days before jury selection.
Absent specific Order, counsel shall submit and serve proposed voir dire questions seven days before jury selection.
Page 18 | XII.D. Voir Dire
All pretrial motions, including the listed motion types, must be filed by the deadlines entered in the case.
All pretrial motions – including motions in limine and any motions challenging the indictment, seeking suppression of evidence, or raising any dispositive matters – must be filed in accordance with the deadlines entered in the case.
Page 18 | XII.A. Motions practice
The United States must submit its guilty plea memorandum at least two days before the change-of-plea hearing.
The United States must submit a guilty plea memorandum at least two days prior to the change of plea hearing.
Page 19
The United States must file a trial memorandum at least one week before trial.
At least one week prior to the trial date, the United States must file a trial memorandum setting forth the essential elements of the offenses, the facts which it intends to present, the identity of each witness it intends to call, a statement of the substance of each witness’ testimony and any legal issues.
Page 19 | F. Trial memorandum
Sentencing motions and supporting memoranda must be filed at least seven days before sentencing, and responses at least three days before sentencing.
Counsel must file sentencing motions and supporting memoranda at least seven days prior to the scheduled sentencing date, and any response thereto must be filed at least three days prior to the scheduled sentencing date.
Page 19 | G. Sentencing
Sentencing memoranda, excluding motions, must be filed by both sides no later than seven days before sentencing.
Sentencing memoranda (exclusive of motions), by both the United States and the defense must be filed no later than seven days before the scheduled sentencing date, and any response thereto must be filed at least three days prior to the scheduled sentencing date.
Page 19 | G. Sentencing
Motions for pro hac vice admission should be made as soon as possible.
Motions for pro hac vice admission should be made as soon as possible
Page 4 | J. Pro hac vice motions
A non-party served with a motion may respond within three days of service unless the Court orders otherwise.
Non-parties served with motions may respond within three days of service, unless otherwise ordered.
Page 9 | Discovery motions involving non-party witnesses
For good cause based on the need for a transcript to brief post-trial issues, the Court may allow the supporting memorandum to be filed within thirty days after receipt of the transcript.
Upon showing good cause based on a need for the transcript to brief the post-trial issues, Judge Kearney may allow the movant to file the memorandum in support of post-trial relief within thirty days of the receipt of the transcript.
Page 10 | IV. Motion practice for non-discovery or non-scheduling issues in all matters; D. Post-trial motion procedure
Counsel may request an electronic courtroom at least two weeks before trial.
Counsel may request use of an electronic courtroom no less than two weeks before trial.
Page 13 | X. Trial Procedure — B. Courtroom technology.
Service and Proof of Service Rules
Unless an allowed correspondence exception applies or the Judge directs otherwise, a request for direction must be filed and served on all parties.
Other than as listed below or otherwise directed by Judge Kearney, a request for direction must be made through a pleading, motion, application, or similar filing with service upon all parties.
Page 1 | I.A. We permit correspondence in limited circumstances
Rule 26(a) information must be exchanged no later than seven days after the order scheduling the Rule 16 conference.
The information required to be disclosed under Fed. R. Civ. P. 26(a) is required to be exchanged no later than seven days after the date of the Order scheduling the Rule 16 conference.
Page 8 | III. Discovery
Unless stayed by statute or order, parties must commence core party written discovery upon the order and immediately upon notice of the Rule 16 conference date; this excludes third-party discovery and preconference depositions unless specifically ordered for good cause.
If not done already, the parties are required to commence core party written discovery upon Order and immediately upon receipt of notice of the date of the Rule 16 conference unless stayed by statute or order. Core party written discovery includes, among other efforts: document requests; admissions; and interrogatories. It does not include third-party discovery or depositions before the initial scheduling conference unless specifically ordered for good cause.
Page 8 | III. Discovery
The motion must be served simultaneously on the non-party possibly subject to it by email, hand delivery, or fax.
A party seeking an order compelling discovery compliance from a non-party must attach a certificate of service to the discovery motion describing their simultaneous service of the motion by email, hand delivery, or fax upon the non- party possibly subject to the motion
Page 9 | Discovery motions involving non-party witnesses
A reply must be served within seven days of the Opposition to proceed without leave.
Reply briefs, without a proposed order, are permitted without our leave if filed and served within seven days of the date a non-moving party files its Opposition, may not exceed ten pages, and must be limited to issues newly raised in the Opposition.
Page 10 | IV. Motion practice for non-discovery or non-scheduling issues in all matters; C. Briefs/legal memoranda
Motions for judgment as a matter of law in jury trials and motions for involuntary dismissal in non-jury trials must be filed and served.
Motions for judgment as a matter of law in jury trials and motions for an involuntary dismissal in non-jury trials must be filed and served.
Page 16 | N. Directed verdict motions
Unless a specific order provides otherwise, counsel must serve proposed voir dire questions seven days before jury selection.
Absent specific Order, counsel shall submit and serve proposed voir dire questions seven days before jury selection.
Page 18 | XII.D. Voir Dire
All objections to the Presentence Investigation Report must be sent to the probation officer before sentencing.
To avoid delay in sentencing, all objections to the Presentence Investigation Report must be sent to the probation officer in advance of sentencing.
Page 19 | G. Sentencing
Counsel must serve a copy of the sentencing memorandum on the United States Probation Office.
Counsel shall serve a copy on the United States Probation Office.
Page 19 | G. Sentencing
Courtesy Copy Requirements
When redacted documents are filed in an emergency, counsel must immediately provide Chambers an unredacted courtesy copy.
If a party files redacted documents in an emergency situation, counsel must immediately provide Chambers with a courtesy copy of the documents without redactions.
Page 2 | I.G. Hearings and required scrutiny of proposed sealed or redacted documents
Courtesy copies are required for filings over 35 pages, when the Policies require them (including Rule 56 papers), or when Chambers requests them; copies must retain the ECF notation on each page unless otherwise ordered and be delivered to the Clerk’s Office for Judge Kearney.
Courtesy copies shall only be provided to Chambers for a filing over thirty-five pages and as required under these Policies (e.g. Rule 56 papers) or otherwise requested by Chambers. The courtesy copy shall be the ECF document with the ECF notation at the top of each page, unless otherwise ordered. All courtesy copies are to be delivered to the Clerk’s Office to the attention of Judge Kearney.
Page 2 | I.F. Courtesy copies of ECF filings shall be provided only as directed
All motions for leave to seal documents should be filed of record with a courtesy copy contemporaneously emailed to Chambers of the motion and all documents to be sealed.
All motions for leave to seal documents should be filed of record with a courtesy copy contemporaneously emailed to Chambers of the motion and all documents to be sealed.
Page 2 | I.G. Hearings and required scrutiny of proposed sealed or redacted documents
The parties must provide one courtesy copy of each Rule 56 submission within one business day of filing by overnight mail or hand delivery to the Clerk’s office, with the ECF document number on every page.
The parties shall provide Chambers with one courtesy copy of all Rule 56 submissions by overnight mail or hand delivery to the Clerk’s office to the attention of Judge Kearney within one business day of filing. The parties shall provide copies only of the filed document noted with the ECF document number on each page confirming filing of the entire courtesy copy.
Page 11 | D. Courtesy copy provided to Chambers.
A party moving in limine to exclude specific exhibits must provide Chambers two copies contemporaneously with the motion; deliver exhibits exceeding ten pages by hand and exhibits under ten pages by email.
Counsel seeking to preclude admission of specific exhibits based on evidentiary objections shall provide Chambers two copies of the contested exhibits (by hand delivery to the Clerk of Court if exceeds ten pages or by email if less than ten pages) contemporaneous with moving in limine on the challenged exhibits.
Page 12 | B. Motions in limine
Unless all exhibits are shown electronically, counsel must deliver two copies of the joint exhibit book for Judge Kearney at voir dire.
Unless all exhibits are shown electronically, Counsel must deliver two copies of the joint exhibit book for Judge Kearney at voir dire.
Page 15 | L. Preparing and admitting exhibits
Pre-Sentence Investigation Reports and sentencing memoranda must be promptly delivered to chambers by email in Microsoft Word format.
Pre-Sentence Investigation Reports and Sentencing Memoranda shall also be promptly delivered to chambers in Microsoft Word Format by email to Chambers_of_Judge_Kearney@paed.uscourts.gov.
Page 20 | G. Sentencing
Sealing & Redaction Procedures
Documents may not be filed under seal without first obtaining leave, except in emergency situations.
Except in emergency situations, no documents may be filed under seal without first obtaining leave.
Page 2 | I.G. Hearings and required scrutiny of proposed sealed or redacted documents
For motions to seal extensive materials, the Court will schedule an in camera hearing at which trial counsel must appear and show cause for each line of material proposed to be withheld from public access.
We will schedule in camera hearings to address motions to seal extensive materials where trial counsel shall appear and show cause as to each line of material counsel deems warrants precluding public access.
Page 3 | Policies applying in all matters
“highly confidential” documents to be filed under seal.
“highly confidential” documents to be filed under seal.
Page 3 | Policies applying in all matters
A party seeking to file documents under seal must narrowly tailor the motion, articulate good cause consistent with appellate precedent, and contemporaneously email the documents to Chambers.
Any party seeking to file documents under seal must present the motion (under Section IV. below) as narrowly as possible, articulate good cause consistent with our Court of Appeals’ precedent, and contemporaneously email the documents sought to be sealed to our Chambers.
Page 9 | B. Confidentiality agreements, seal, or protective orders
Counsel may not shift responsibility for ensuring public access of filed documents through a private confidentiality agreement; the text continues beyond this excerpt.
Counsel may not shift the burden of ensuring public access of filed documents through a private confidentiality agreement where counsel require all privately designated “confidential” or
Page 2 | I.G. Hearings and required scrutiny of proposed sealed or redacted documents
Parties are expected to redact personal identifiers without first obtaining an order.
Parties are expected to comply redact personal identifiers without an order.
Page 2 | I.G. Hearings and required scrutiny of proposed sealed or redacted documents
The Court will enter a confidentiality protective order only when statutorily required or supported by particularized good cause, and will enforce private confidentiality agreements for good cause shown.
Judge Kearney will not enter a protective order on confidentiality unless statutorily required or for particularized good cause, but will enforce private confidentiality agreements as a matter of contract law for good cause shown.
Page 9 | B. Confidentiality agreements, seal, or protective orders
Filing Bundling Requirements
All objections to jury instructions must be filed together in one written motion.
All objections to jury instructions shall be filed in one written motion.
Page 16 | O. Proposed jury instructions and verdict forms
Pre-Motion Conference Requirements
Before filing a threshold motion, the movant must meaningfully confer in good faith with the represented party and identify the communications and shared resolution; the requirement does not apply to pro se parties.
Attach a certificate signed by the movant’s trial counsel to the threshold motion confirming the movant meaningfully conferred in good faith with the represented party (does not apply to pro se parties) subject to the anticipated motion including specifically identifying the communications and shared resolution to resolve the issue particularly on motions to dismiss based on the perceived inadequacy of the pleading or venue issues which can often be readily resolved by an amended pleading or stipulated transfer or remand;
Page 6 | II. Initial steps in civil matters
The parties may not file a memorandum of law without leave.
The parties may not file a memorandum of law absent leave.
Page 9 | Discovery motion practice
Counsel must obtain leave before filing a reply or a longer motion or response, and no reply may be filed without leave.
Counsel seeking to file replies or longer motions or responses must move for relief and obtain leave to do so before filing. No reply may be filed without leave.
Page 9
Replies are optional and may be ruled on before filing; a reply may be filed without leave only within seven days, on newly raised issues, and without a proposed order, while sur-replies require leave.
Reply briefs are not required and Judge Kearney may rule before filing of reply briefs if warranted. Reply briefs, without a proposed order, are permitted without our leave if filed and served within seven days of the date a non-moving party files its Opposition, may not exceed ten pages, and must be limited to issues newly raised in the Opposition. Briefs in excess of these page limits and sur-reply briefs are not permitted unless leave is granted upon motion.
Page 10 | IV. Motion practice for non-discovery or non-scheduling issues in all matters; C. Briefs/legal memoranda
Discovery and dispositive motions are not allowed after the arbitration hearing unless compelling cause exists.
Neither discovery nor dispositive motions will be allowed after the arbitration hearing absent compelling cause.
Page 13 | IX. Arbitration
A reply may be filed only with leave of court.
No replies may be filed without leave.
Page 19 | G. Sentencing
To the extent there are unresolved evidentiary issues, counsel should anticipate the Scheduling Order will require motions in limine be filed after the contemporaneous exchange of pretrial memoranda, with a reply due before the pretrial conference.
To the extent there are unresolved evidentiary issues, counsel should anticipate the Scheduling Order will require motions in limine be filed after the contemporaneous exchange of pretrial memoranda, with a reply due before the pretrial conference.
Page 12 | B. Motions in limine
Counsel are expected to attempt to resolve exhibit and testimony objections before the motions in limine deadlines, leaving only unresolved objections for the Court.
Judge Kearney expects counsel attempted to resolve objections to exhibits and testimony before the motion in limine deadlines, leaving only those objections the parties could not resolve.
Page 12 | B. Motions in limine
After an affidavit of service, Judge Kearney attempts to hold a prompt conference with counsel on temporary restraining orders and preliminary injunctions, unless extraordinary imminent harm exists.
Judge Kearney attempts to hold a prompt conference with counsel seeking and defending requests for temporary restraining orders and preliminary injunctions following an affidavit of service, unless extraordinary imminent harm.
Page 13 | VII. Injunctions
In arbitration-track cases, the parties are expected to complete discovery and resolve all dispositive motions before the arbitration hearing.
The parties are expected to complete all discovery and resolve all dispositive motions before the arbitration hearing.
Page 13 | IX. Arbitration
Judge Kearney expects a party seeking pretrial injunctive relief is prepared to imminently move to a hearing within a month. If not ready for an imminent hearing, the party may seek expedited discovery and Judge Kearney will then set the pretrial injunction hearing.
Judge Kearney expects a party seeking pretrial injunctive relief is prepared to imminently move to a hearing within a month. If not ready for an imminent hearing, the party may seek expedited discovery and Judge Kearney will then set the pretrial injunction hearing.
Page 13 | VII. Injunctions
Upon request, a hearing or argument challenging an expert witness’s competency or necessity will be scheduled at or before the final pretrial conference.
Hearings or arguments challenging expert witness competency or necessity, upon request, will be scheduled at or before the final pretrial conference.
Page 12 | B. Motions in limine
Judge Kearney usually addresses filed expedited-discovery motions by conference when scheduling the hearing.
Judge Kearney usually handles filed motions for expedited discovery by conference when scheduling the hearing.
Page 13 | VII. Injunctions
Adjournment & Extension Requirements
Letter requests are not accepted for extensions of time set by the Federal or Local Rules or scheduling Orders.
Judge Kearney will not accept letter requests for extensions of time set by the Federal or Local Rules or our scheduling Orders.
Page 1 | I.A. We permit correspondence in limited circumstances
Requests to extend response time or scheduling-order dates must be made by motion or stipulation demonstrating good cause.
Requests for extension of time to respond to a pleading or motion or a request for the extension of the dates in a scheduling order must be made by motion or stipulation demonstrating good cause which can be reviewed and ruled upon.
Page 1 | I.A. We permit correspondence in limited circumstances
If a non-incarcerated party opposes a continuance or extension, the movant may file a motion stating its basis, detailing other parties’ positions, and including a proposed order.
Contested scheduling. If a non-incarcerated party opposes a continuance or extension, the movant may move under Section IIIA. below identifying the basis for the continuance or extension and detail the positions of other parties with a proposed order.
Page 7 | F. Continuances, amendments, and extensions of scheduling
A trial-date extension or continuance will not be granted without extraordinary circumstances.
A request for an extension or continuance of the trial date will not be granted absent extraordinary circumstances.
Page 7 | F. Continuances, amendments, and extensions of scheduling
A witness’s unavailability at trial is not a ground to delay the commencement or progress of trial.
The unavailability of such witness will not be a ground to delay the commencement or progress of trial.
Page 16 | Q. Unavailability of witness
A continuance request must be filed as a motion stating its reasons at least 14 days before the scheduled trial date.
Any request for a continuance must be filed no later than fourteen (14) days in advance of the scheduled trial date. Requests for a continuance must be filed as a motion stating the reasons for the request.
Page 18 | XII.B. Trial continuances
Sentencing may be continued only for good cause.
Sentencing will be continued for good cause only.
Page 19 | G. Sentencing
The parties are expected to follow court-ordered scheduling dates or, absent an order, the default dates in the Federal or Local Rules unless they demonstrate good cause for a change in writing.
Unless there is demonstrated good cause in writing to justify a change, the parties are expected to adhere to the schedule contained in Orders setting obligations or, absent an Order, the default dates in the Federal or Local Rules.
Page 7 | F. Continuances, amendments, and extensions of scheduling
Continuances are strongly discouraged, and counsel may have to appear in person to argue a request if multiple continuances are sought.
Continuances are strongly discouraged, and, if multiple continuances are sought, counsel may be required to appear in person to argue the matter.
Page 18 | XII.B. Trial continuances
The judge may approve a stipulated continuance or extension if it does not affect the trial date.
Stipulations. Judge Kearney may approve a stipulation for a continuance or extension if the continuance or extension does not affect the trial date.
Page 7 | F. Continuances, amendments, and extensions of scheduling
Chambers Communication Rules
Pro se parties may not communicate by telephone or fax unless Judge Kearney gives advance approval and an ESR or Court Reporter is present.
Telephone and fax communications by a pro se party are prohibited unless approved by Judge Kearney beforehand and an ESR/Court Reporter is present.
Page 2 | I.C. No telephone communications from pro se parties
Documents sought to be sealed must be emailed to Chambers at the same time the motion is presented.
Any party seeking to file documents under seal must present the motion (under Section IV. below) as narrowly as possible, articulate good cause consistent with our Court of Appeals’ precedent, and contemporaneously email the documents sought to be sealed to our Chambers.
Page 9 | B. Confidentiality agreements, seal, or protective orders
Counsel must advise Chambers as soon as possible of any irreversible personal conflicts that arise after the scheduling order.
Counsel must advise Chambers of any irreversible personal conflicts arising after the scheduling Order as soon as possible.
Page 13 | X. Trial Procedure — A. Scheduling.
Unless excused for good cause, plaintiff’s counsel must send Chambers an electronic copy of all admitted exhibits by email or on a disc before the jury returns with a verdict.
Plaintiff’s counsel shall, unless excused for good cause, email an electronic copy of all admitted exhibits to our Chambers email address (or provide on a disc) before the jury returns with a verdict.
Page 16 | L. Preparing and admitting exhibits
When any motion is filed, the parties must advise Judge Kearney whether they intend to present supporting or opposing testimony and how long it is expected to take.
Upon the filing of any motion, the parties shall advise Judge Kearney whether they intend to present testimony in support of or in opposition to the motion and the expected duration of any such testimony so Judge Kearney can schedule a hearing, if necessary.
Page 18 | XII.A. Motions practice
If the parties have agreed to request expedited sentencing, the United States must notify chambers and the probation office at least two days before the change-of-plea hearing.
If an agreement has been reached to request Judge Kearney set an expedited sentencing, the United States must notify Chambers and the probation office at least two days prior to the change of plea hearing.
Page 19
The change-of-plea memorandum must be emailed to Judge Kearney's chambers at the specified address.
The change of plea memorandum shall be provided in Microsoft Word Format by email to Chambers_of_Judge_Kearney@paed.uscourts.gov.
Page 19
Counsel must email all character letters to chambers at least three days before sentencing.
Counsel shall provide all character letters by email at least three days before sentencing to Chambers_of_Judge_Kearney@paed.uscourts.gov.
Page 20 | G. Sentencing
Pre-Sentence Investigation Reports and sentencing memoranda must be emailed to chambers at the specified address.
Pre-Sentence Investigation Reports and Sentencing Memoranda shall also be promptly delivered to chambers in Microsoft Word Format by email to Chambers_of_Judge_Kearney@paed.uscourts.gov.
Page 20 | G. Sentencing
Counsel must not send the Judge copies of correspondence exchanged among themselves.
Counsel shall not send copies of correspondence among themselves to Judge Kearney.
Page 1 | I.A. We permit correspondence in limited circumstances
Correspondence to Chambers, copied to all counsel and unrepresented parties, is permitted only in the listed circumstances and may not exceed two pages.
Correspondence, not to exceed two pages, may be emailed, faxed or mailed to Chambers copied to all counsel and unrepresented parties only in the following instances: (1) Counsel are specifically requested by the Court to communicate information by letter; (2) An uncontested request for an extension of sentencing; (3) A scheduling request based on an unanticipated and irreversible personal matter concerning counsel, a party or counsel’s immediate family; or, (4) A case, or portions of a case, settled.
Page 1 | I.A. We permit correspondence in limited circumstances
Counsel and parties must not communicate with the Judge’s law clerks or interns unless the Judge specifically directs them to do so on a particular issue.
Counsel and parties are not permitted to communicate with the Judge’s law clerks or interns unless specifically directed by the Judge on a particular issue.
Page 2 | I.D. No communications with law clerks or interns
Pro se parties may appear at hearings by telephone only if permitted for good cause, such as when incarcerated in a civil case.
Pro se parties may not appear for hearings by telephone unless permitted for good cause, such as incarcerated persons in civil cases.
Page 2 | I.C. No telephone communications from pro se parties
Unsolicited communications are not accepted unless Judge Kearney pre-approves them.
We will not accept unsolicited communications unless pre-approved by Judge Kearney.
Page 2 | I.A. We permit correspondence in limited circumstances
Judge Kearney may resolve the issue before a response unless opposing counsel advises Chambers, by email to Chambers or letter faxed within
Judge Kearney may resolve the issue before a response unless opposing counsel advises Chambers, by email to Chambers or letter faxed within
Page 8 | A. Resolving discovery or scheduling disputes
Counsel should seek direction from Judge Kearney before stopping or leaving a deposition; doing so is strongly disfavored.
Stopping or “walking out” of a deposition is strongly disfavored, and counsel should not do so before seeking direction from Judge Kearney, mindful the parties’ time and expense should not be lost due to a discovery dispute experienced counsel in this Court can usually resolve without loss of time or Court direction.
Page 9 | Deposition conduct
Parties should contact Courtroom Deputy Ulrike Bower (267-299-7688) before trial to arrange a time to set up and test any electronic equipment.
Parties should contact Courtroom Deputy Ulrike Bower (267-299-7688) before trial to arrange a time to set up and test any electronic equipment.
Page 14 | X. Trial Procedure — B. Courtroom technology.
Telephone conferences with counsel are not generally held in criminal cases, unless counsel requests one or Judge Kearney finds one appropriate.
Judge Kearney does not generally hold telephone conferences with counsel in criminal cases, unless counsel specifically requests one or Judge Kearney finds a conference is appropriate.
Page 18 | XII.C. Pretrial conferences
Judge Kearney may hold telephone conferences, and Chambers will notify counsel of the conference date and time.
Judge Kearney may hold telephone conferences. Chambers will notify counsel of the date and time for the telephone conference.
Page 2 | I.B. Telephone inquiries and conferences as warranted
Where warranted, the Court may allow a telephone conference to resolve a deposition dispute that would otherwise require an adjournment.
Where warranted, Judge Kearney will allow telephone conferences to resolve disputes during depositions where the deposition would otherwise have to be adjourned.
Page 9 | Deposition conduct
For questions not addressed by the Policies, counsel or a party should direct telephone inquiries to Courtroom Deputy Ulrike Bower and copy Chambers.
To the extent counsel or a party has a question not addressed by these Policies, telephone inquiries should be directed as appropriate to Courtroom Deputy Ulrike Bower at 267-299-7688 or Ulrike Bower@paed.uscourts.gov. with a copy to Chambers_of_Judge_Kearney@paed.uscourts.gov
Page 1 | Policies and Procedures
Junior Lawyer Participation Incentives
The Court encourages assigning presentations to well-prepared, less experienced attorneys and may allow experienced counsel to assist during oral argument if requested beforehand and appropriate; this encouragement does not apply where lead counsel is required, and no inference will be drawn from a party’s choice of presenter.
We recognize the importance of developing future generations of federal court trial lawyers. We encourage trial counsel to assign court presentations to less experienced attorneys unless we require lead counsel’s presence (e.g., Rule 16 and settlement conferences). We are aware experienced trial counsel may not be directly involved in the day-to-day of the discovery process, issues in dispositive motions, or with a particular witness or issue at trial. If warranted, we encourage the parties and thoughtful trial counsel to allow well-prepared but less experienced attorneys to present their client’s best position where, for example, the less experienced attorney lived with the facts or drafted or contributed significantly to the briefing. If requested before an argument, we may allow more experienced trial counsel to assist the less experienced attorney arguing the motion, where appropriate during oral argument. There are many different circumstances where it is not appropriate for a less experienced attorney to solely present the client’s position, particularly where we require trial counsel’s presence. Depending on the attorney-client relationship, strategy on court appearances may be the client’s decision and we do not wish to interfere in the client’s decision. We draw no inference from a party’s decision not to have a less experienced attorney present the position. Similarly, we draw no inference about the importance of a particular position, or the merits of a party’s position, from the party’s decision to have (or not to have) a less experienced attorney present the position. We only wish to encourage the experienced members of this Court’s Bar and their clients to develop their next generation of trial lawyers.
Page 3 | I. We encourage development of trial lawyers