Highlights of the Current Local Civil Rules in the Western District of Texas

By Leslie Hyman

Effective June 24, 2021, both the Local Civil Rules and the Administrative Policies and Procedures for Electronic Filing in Civil and Criminal Cases for the United States District Court for the Western District of Texas were revised. The last complete substantive revision was in 2011.

The Goals

There were three goals for the latest revisions: (1) to harmonize the Local Civil Rules with the Federal Rules of Civil Procedure, which had been amended since the enactment of the last Local Civil Rules; (2) to increase consistency and readability; and (3) to address issues that frequently arose under the existing Local Civil Rules.

The Revision Process

The revised rules are the result of a nearly two-year process that included several in-person meetings and hours of other work by the Local Court Rules Committee, input from practitioners, input from the judges, unanimous approval by the district judges of the Western District, and approval by the Fifth Circuit Rules Committee, acting for and on behalf of the Judicial Council of the Fifth Circuit. The Local Civil Rules were then adopted and enacted by order of Chief Judge Orlando L. Garcia.

The Committee was chaired by the late District Judge Philip Martinez who served in El Paso, together with District Judge Lee Yeakel from Austin and Magistrate Judge Elizabeth “Betsy” Chestney from San Antonio. In order to ensure that various civil practices across our 93,000-square-mile district were considered, the Local Rules Revision Committee also included attorneys from the San Antonio, Austin, Del Rio, Midland-Odessa, and El Paso Divisions. University of Texas Law Professor Steven Goode served as the reporter, but his role also included offering invaluable advice on changes to the Federal Rules of Civil Procedure. He also kept the style, formatting, and grammar consistent.

Key Rule Changes

The Committee reviewed every local civil rule and the relevant appendices. Changes were made to almost all of the rules, although some of the changes were minor. This article highlights the key substantive changes.

Rule CV-5.2 – Documents Filed Under Seal. Rule CV-5.2 was new in 2011. The changes are intended to emphasize the original intention of the 2011 Local Court Rules Committee that filing under seal should be limited to exceptional circumstances, and that redaction or drafting to allow confidential information to be placed in an appendix are both preferable methods of dealing with confidential information. The rule also reminds filing parties that sealed documents must be served outside of the CM/ECF system.

Rule CV-7 – Pleadings Allowed; Form of Motions. Rule CV-7 governs motions practice in the Western District of Texas. The 2011 revisions had created a distinction between dispositive and nondispositive motions with non-dispositive motions having lower page limits and tighter timing. Despite the fact that the rule defined “dispositive motions,” there seemed to be ongoing confusion regarding what was considered dispositive. The practitioners on the Committee also felt that certain nominally non-dispositive motions, such as motions to strike experts, many be critically important to a case and require a more comprehensive substantive response. The Committee agreed to abandon the dispositive/non-dispositive distinction in favor of a distinction based on whether or not the motion concerns case management and discovery. Discovery and case management motions are limited to fewer pages and shorter response and reply times in order to allow for quick resolution by the court, which should help avoid the possibility that these types of motions may derail case preparation. Only these motions require a proposed order although parties are welcome to submit a proposed order with any motion or response. All other motions practice is now governed by the increased pages and longer response and reply times that were previously applicable only to dispositive motions. The dispositive/nondispositive distinction is retained solely for the requirement of conferral before filing a motion. Parties are still excused from calling opposing counsel to confer on a dispositive motion.

New Rule CV-15 – Amendment of Pleadings. Rule CV-15 is a new rule intended to harmonize the Western District’s motions practice with Federal Rule of Civil Procedure 15(a). The new local rule provides that, notwithstanding the Rule CV-7 time limit for responding to a motion, a party may respond to a FRCP Rule 12 motion to dismiss by filing an amended pleading within the 21 days set forth in FRCP 15 and that, under those circumstances, no motion for leave to amend is required.

Rule CV-16 – Pretrial Conferences; Scheduling; Management. Rule CV-16 was amended to reference a new approved form of FRCP 26(f) report, which is contained in a new Appendix N. Rule CV-16 was also amended to give parties 14 days after the close of discovery, rather than 7, to file discovery motions relating to events occurring during the final week of discovery.

Rule CV-30 – Depositions Upon Oral Examination. Rule CV-30 was amended to conform deposition objections to the practice used in Texas state courts. The new language reads: “Absent an agreement by the parties, objections to questions during a deposition are limited to ‘Objection, leading’ and ‘Objection, form.’ Objections to testimony during a deposition are limited to ‘Objection, nonresponsive.’ Any objections to the form of the question or responsiveness of the answer are waived if not properly stated during a deposition. All other objections need not be made or recorded during a deposition to be later raised with the court.” The Committee felt that most litigators in Texas were comfortable with the Texas practice, which has significantly curtailed speaking objections.

Rule CV-54 – Costs and Attorney’s Fees. Rule CV-54 was amended to clarify the procedure for bills of costs. The procedure for recovery of attorney’s fees previously located in Rule CV-7 is now contained in Rule CV-54.

Rule CV-88 – Alternative Dispute Resolution. Rule CV-88 was amended to require mediation in every case unless the court orders otherwise sua sponte or on motion by a party. This change came at the request of practitioners on the Committee who explained the potential benefits of mandatory mediation such as avoiding any perception of weakness (in the eyes of the opposing party or their own client) caused by proposing mediation.

Appendices H-1 and H-2 – Form Protective Order. There are now two approved forms of protective order—one with an “attorneys’ eyes only” designation and one without. The Committee felt that most cases did not call for the “attorneys’ eyes only” designation.

Changes to the CM/ECF Procedures

In addition to revising the Local Civil Rules, the Committee revised the Administrative Policies and Procedures for Electronic Filing in Civil and Criminal Cases. The main addition concerns attachments to filings and requires “[a]ll documents other than the main document, such as an appendix, exhibit, affidavit, or a supplement” to be submitted as separate PDFs documents. It further requires that those documents “be given a description that corresponds to the name used in the main document. For example, if the main document refers to ‘Exhibit A [Smith Declaration],’ the Category must be ‘Exhibit’ and the Description must be ‘A – Smith Declaration.’” Although most of the other changes were non-substantive, if it has been a while since you reviewed these procedures, it is time for a refresher!

Conclusion

This article highlights only the key substantive changes between the 2011 revision to the Local Civil Rules and the current version. A complete set of local rules is available on the Western District website at https:// www.txwd.uscourts.gov/court-information/lcr-introduction/. As a reminder, in addition to the local rules most of the judges of the San Antonio Division and certain other judges in the district have provided guidance as to their preferences in the form of fact sheets. The fact sheets, as well as the judges’ and District’s standing orders, are available at https://www.txwd.uscourts.gov/judges-information/ standing-orders/.

Leslie Hyman is partner with Pulman, Cappuccio & Pullen, LLP, where her practice focuses on commercial litigation in state and federal courts. She chairs the San Antonio Bar Association’s Federal Courts Committee and served on the local rules committees that resulted in both the 2011 and 2021 revisions.