Important Rule Changes for Eastern District of Texas

On February 27, 2012, the United States District Court in the Eastern District of Texas announced the amendment of their local rules.  The rule changes are to be effective after a reasonable period for notice and comment.

Starting with Local Rule CV-5, the court made some important changes related to electronic filing, including the following:

  • A waiver of service in a civil matter is now exempt from the requirement of electronic filing under Local Rule CV-5.
  • CV-5(a)(2) regarding registration for electronic filing, has been updated to allow the court more freedom in handling bad email addresses.  The court is no longer going to deal with “bounce-back” email notifications.  The Rule adds, “Documents sent from the court will be deemed delivered if sent to the last known e-mail address given to the court.”  Subsection (i) of this rule was deleted in light of an attorney’s responsibility to maintain their own email account information and because of the time court staff was spending on chasing down good email addresses.  It will be imperative for attorney’s and their staff to update email addresses with the Eastern District.
  •  Under Rule CV-5(a)(4), filers are now allowed to attach files up to fifteen megabytes in size.  This does not change the page requirements of motions and responses however.  The Court further comments that the increase in megabyte size is not encouragement for filers to go overboard with unnecessary attachments.
  •  Still under Rule CV-5, subsection (c), the court adds (c)(1) entitled Letter Briefs.  Letter Briefs that are ordered to be filed by the court must contain a certificate of service and must be served on all counsel of record.  All response and reply dates shall be calculated from the date of service pursuant to Fed. R. Civ. P. 6 and Local Rule CV-6.  This rule clarifies any confusion regarding procedural requirements related to a Letter Brief.
  •  Rule CV-7, Motions Practice, is clarified to expressly state that motions must be accompanied by a “separate” proposed order.  Of course, orders are to be in searchable and editable PDF format for the Judge’s signature, but must not be part of the motion.  This language was changed to mirror Rule CR-47(b), and clarifying further that any proposed order should be filed as an attachment to the motion.  Filing an order as a separate document clutters the docket.
  •  Although many courts require a certificate of conference on any motion filed, the Eastern District of Texas is updating this rule.  CV-7(i) is updated by eliminating subjection (8), the need to have a certificate of conference on “any motion captioned as ‘joint,’ ‘agreed,’ or ‘unopposed.’”  However, they are adding the requirement for a certificate of conference on any writ of garnishment.
  • Local Rule CV-26 is changed to clarify the fact that there is a designated hotline “duty” judge each month regarding discovery.
  • Procedures for a contested bill of costs were changed in Rule CV-54(b) giving the parties the options to:  (i) file a joint motion identifying the areas of agreement and disagreement to be resolved by the court, or (ii) file a motion requesting costs that indicates the areas of agreement and disagreement to be resolved by the court.
  • Local Rule CV-72 (a)-(c) relating to the powers of the Magistrate Judges was rearranged to add current text appearing in Appendix B instead of deferring to Appendix B.  In addition, CV-72(b) regarding motions for reconsideration of a non-dispositive motion adds that any party may respond to a motion for reconsideration within seven (7) days after being served with a copy of the motion.  The addition of the response time closes a gap left in Fed. R. Civ. P. 72 which does not include a deadline in which to respond.  In addition, the court adds a new subsection as follows: (d) “Special Master Reports—28 U.S.C. § 636(b)(2). Any party may seek review of, or action on, a special master report filed by a magistrate judge in accordance with the provisions of Fed. R. Civ. P. 53(3).”
  • Appendix B to the Local Rules of Court for the Assignment of Duties to United States Magistrate Judges of the Eastern District of Texas was recrafted.  The initial Rules 4(A)-(C) were all deleted as they dealt with reconsideration of non-dispositive matters and added into Local Rule CV-72.
  • Local Rule CV-83(b) regarding transferred or remanded cases adds a sentence stating that there is no waiting period for Multi-District Litigation transfers as there are with other transfers or remands.  Therefore, the twenty day waiting period does not apply in MDL cases.
  • Last and most importantly for patent infringement matters, the working group who have proposed the changes for the Eastern District add an Appendix P, a Model Order Regarding E-Discovery to streamline the production of Electronically Stored Information (“ESI”).  Instead of contemplating a separate rule, they wanted to allow for a more flexible plan of action for E-discovery in patent cases.  The order outlines the document image format and requirements of producing text-searchable documents, native files, voicemail and mobile devices, and the requirement of backup restoration.  The order further includes language relating to only the request for email production, which is separate from ESI.  The Model Order avers a proposed timeline for parties to seek email discovery in phases pertinent to a patent infringement matter.  It further requires the requester to specifically identify potential email custodians and why it is believed that the custodian is significant in the matter.  Production requests and depositions to identify potential custodians will be limited by this order, as well as search terms and the time frame for email production.  The order does allow for the parties to limit the discovery requests without leave of court.

The Judges of the U.S. District Court of the Eastern District have approved the changes by General Order 12-6.  Details can be found at the Court’s website under “Court Announcements” at