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`EXHIBIT D
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`COMMITTEE ON RULES
`OF
`PRACTICE AND PROCEDURE
`
`Washington, DC
`June 1-2, 2009
`
`Volume I
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`

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`AGENDA
`COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
`JUNE 1-2, 2009
`
`1.
`
`Opening Remarks of the Chair
`
`A.
`B.
`
`C.
`
`Report on the March 2009 Judicial Conference session
`Transmission of Supreme Court-approved proposed rules amendments to
`Congress
`Enactment of Statutory Time-Periods Technical Amendments Act of 2009
`
`ACTION – Approving Minutes of January 2009 committee meeting
`
`Report of the Administrative Office
`
`A.
`B.
`
`Legislative Report
`Administrative Report
`
`Report of the Federal Judicial Center
`
`Report of the Civil Rules Committee
`
`2.
`
`3.
`
`4.
`
`5.
`
`A.
`
`B.
`
`C.
`
`ACTION – Approving and transmitting to the Judicial Conference
`proposed amendments to Civil Rules 8(c), 26, and 56
`ACTION – Approving publishing for public comment proposed
`amendments to Supplemental Rule E(4)(f) (publication deferred)
`Minutes and other informational items
`
`6.
`
`Report of the Appellate Rules Committee
`
`A.
`
`B.
`
`ACTION – Approving and transmitting to the Judicial Conference
`proposed amendments to Appellate Rules 1, 29, 40, and Form 4
`Minutes and other informational items
`
`7.
`
`Report of the Bankruptcy Rules Committee
`
`A.
`
`B.
`
`ACTION – Approving and transmitting to the Judicial Conference
`proposed amendments to Bankruptcy Rules 1007, 1014, 1015, 1018, 1019,
`4001, 4004, 5009, 7001, 9001, and new Rule 5012, and proposed
`amendments to Official Form 23
`ACTION – Approving publishing for public comment proposed
`
`1
`
`

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`Standing Committee Agenda
`June 1-2, 2009
`Page 2
`
`amendments to Bankruptcy Rules 2003, 2019, 3001, and 4004, and new
`Rules 1004.2 and 3002.1, and proposed amendments to Official Forms 22A,
`22B, and 22C
`Minutes and other informational items (later mailing)
`
`C.
`
`8.
`
`Report of the Evidence Rules Committee
`
`A.
`
`B.
`
`C.
`
`D.
`
`ACTION – Approving proposed “style” amendments to Evidence Rules
`801-1103
`ACTION – Approving publishing for public comment proposed “style”
`revision of Evidence Rules 101-1103
`ACTION – Approving and transmitting to the Judicial Conference
`proposed amendments to Evidence Rule 804(b)(3)
`Minutes and other informational items
`
`9.
`
`Report of the Criminal Rules Committee
`
`A.
`
`B.
`
`C.
`
`ACTION – Approving and transmitting to the Judicial Conference
`proposed amendments to Criminal Rules 12.3, 15, 21, and 32.1
`ACTION – Approving publishing for public comment proposed
`amendments to Criminal Rules 1, 3, 4, 9, 12, 32.1, 40, 41, 43, 47, and 49,
`and new Rule 4.1
`Minutes and other informational items
`
`ACTION — Approving and transmitting to the Judicial Conference proposed
`Guidelines for Distinguishing Between Matters Appropriate for Standing Orders
`and Matters Appropriate for Local Rules and for Posting Standing Orders on a
`Court’s Website
`
`Report on Observance of Rules Enabling Act 75th Anniversary (oral report)
`
`Report on Sealed Cases (oral report)
`
`Long-Range Planning Report
`
`Next Meeting: January 2010
`
`2
`
`10.
`
`11.
`
`12.
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`13.
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`14.
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`

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`Case 1:18-cv-00966-CFC-CJB Document 995-4 Filed 12/02/22 Page 5 of 13 PageID #:
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`COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
`OF THE
`JUDICIAL CONFERENCE OF THE UNITED STATES
`WASHINGTON, D.C. 20544
`
`LEE H. ROSENTHAL
`CHAIR
`
`PETER G. McCABE
`SECRETARY
`
`CHAIRS OF ADVISORY COMMITTEES
`
`CARL E. STEWART
`APPELLATE RULES
`
`LAURA TAYLOR SWAIN
`BANKRUPTCY RULES
`
`MARK R. KRAVITZ
`CIVIL RULES
`
`RICHARD C. TALLMAN
`CRIMINAL RULES
`
`ROBERT L. HINKSLE
`
`Report and Recommended Guidelines on
`Standing Orders in District and Bankruptcy Courts
`
`1. Executive Summary
`
`For years, judges and lawyers have been concerned about the proliferation of
`"standing orders," "administrative orders," and "general orders" in the federal district courts.
`The term "standing orders" describes orders -including "administrative orders" or "general
`adopted by district courts or bankruptcy courts as district-wide or division-wide
`orders" -
`orders, without an opportunity for notice or public comment. The term includes individual-
`judge orders that are intended to apply generally. Individual-judge standing orders are not
`the focus of this report but are included in the guidelines for posting orders so they can be
`easily located and accessed.
`
`The concerns raised by the proliferation of standing orders are similar to the concerns
`over local rules that led to congressional attention and launched earlier studies by the Judicial
`Conference. Like local rules, standing orders are meant to apply generally. Like local rules,
`standing orders can lead to a lack of uniformity in federal practice, undermining consistency
`in areas where the national rules were meant to provide it and creating traps for the unwary
`and even for the wary. But standing orders can raise even more serious problems than local
`rules for several reasons. First, standing orders are promulgated without the benefit of public
`comment. Second, standing orders are often harder to find and retrieve than local rules.
`Third, because standing orders may be entered by individual judges as well as by a division
`or district, there is significant variation even within the same district or division, Standing
`orders may raise these and other problems to such a degree as to risk invalidity and to invite
`congressional scrutiny.
`
`753
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`Report and Recommended Guidelines
`on Standing Orders in District and Bankruptcy Courts
`Page 2
`
`There is some case law guidance on the limits of using standing orders as opposed to
`local rules. But no national standards, and very few local standards, define what subjects are
`appropriately addressed by standing orders and what subjects are best addressed by local rule.
`The Standing Committee received requests from judges on circuit councils for guidance on
`delineating between standing orders and local rules. In response, the Committee asked for
`research on standing orders and asked the Administrative Office to survey the district courts
`to learn how they were actually using such orders. The Committee also surveyed chief
`district judges to learn what informnation and guidance might be most helpful.
`
`The research and survey into the use of standing orders in the district courts showed
`wide variance in the number of orders and topics addressed and in how lawyers and the
`public receive notice. The research produced some general criteria for delineating between
`when standing orders are appropriate and when local rules should be used. Standing orders
`are most appropriate to address mailers that: 1) are of no direct concern to practicing
`attorneys or litigants; 2) require action for too short a time period to make the use of a local
`rule practical; or .3) require prompt action to address an emergency.
`In general, three
`internal administration, temporary problems, and emergencies
`categories of subjects -
`are the most appropriate for standing orders. Standing orders addressing matters outside
`these subjects are likely to be in tension with the interest of members of the public in
`commenting on mailers that affect them and risk creating rules that are unnecessarily difficult
`or even unworkable.
`
`Standing orders are most problematic when they: 1) cover mailers in which lawyers
`and litigants have a substantial interest but are issued without the notice and public comment
`that accompanies local rules; 2) modify or abrogate local rules; and, of course, 3) conflict
`with national or local rules. Efforts to modify or abrogate local rules should only be made
`through local rule, with notice and comment. The research showed that while the majority
`of courts use local rules, rather than standing orders, to regulate matters that directly affect
`the public, a small number of courts are using standing orders to address such mailers.
`
`The research also showed a wide variation in how district- or division-wide and
`individual-judge standing orders are made available to the public. In many districts, standing
`orders are easily retrievable on the district court's website. But in other districts, it is not
`easy to find standing orders. It is particularly difficult to search for a standing order on a
`specific topic. Many standing orders are not indexed and most are not searchable by subject
`or topic.
`
`754
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`Report and Recommended Guidelines
`on Standing Orders in District and Bankruptcy Courts
`Page 3
`
`Finally, the survey showed that courts would find it useflul to have guidelines on
`delineating between matters appropriately addressed in standing orders and those that should
`be addressed in local rules and on the most effective and consistent way to post standing
`orders on court websites. Specific guidelines have been developed as to when it is
`appropriate to use district-wide or division-wide standing orders and when local rules should
`be used. The guidelines also recommend a consistent approach to posting standing orders
`on the websites of the district courts and in making such orders searchable.
`
`11. The Use of Standing Orders
`
`The Standing Committee became aware of the increasing use of standing orders
`through several avenues. The Standing Committee's Local Rules Project, which ended in
`2005, uncovered standing orders that addressed the same topics as local rules. The Standing
`Committee's work on the model rules for electronic filing, approved by the Judicial
`Conference in 2004, showed that although many districts were regulating electronic filing
`through local rules, other districts were using standing orders. Work by the Civil Rules
`Committee to monitor developments in electronic discovery after the December 2006 Civil
`Rules amendments indicated that in some districts, standing orders are being used for
`detailed electronic discovery "protocols," while in other districts, local rules address
`electronic discovery.
`
`The Administrative Office investigated the use of standing orders in eleven district
`courts. The research involved collecting and reviewing the standing orders in these districts,
`as well as receiving information directly from clerks and judges. Thereafter the
`Administrative Office sent a survey to chief judges in all district and bankruptcy courts
`asking for input in developing guidelines on what matters are appropriately addressed in local
`rules and those that should be addressed in standing orders. Responses were submitted by
`49 district courts and 37 bankruptcy courts. The results of this and related research are
`summarized below.
`
`1.
`
`Varying number of standing orders among the districts
`
`The districts vary widely in their use of standing orders. Some districts have very few
`standing orders issued by the district or division. Others have standing orders in the
`hundreds.
`
`755
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`Report and Recommended Guidelines
`on Standing Orders in District and Bankruptcy Courts
`Page 4
`
`2.
`
`Varying subject matters treated by standing orders
`
`There is no standard approach to whether a particular subject matter is to be treated
`by standing order or local rule. For every district treating a matter by standing order, there
`are others treating the same mailer by local rule. Examples of subjects that are addressed
`in local rules in some districts and standing orders in others include:
`
`*
`*
`*
`*
`*
`
`*
`*
`
`3.
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`regulation of use of electronic devices in the courthouse;
`procedure for filing documents under seal;
`rules governing applications for attorneys' fees;
`redaction of personal identifiers to comply with the F-Government Act;'
`attorney admissions matters;
`rules governing electronic filing;2
`rules on court appearances by legal interns or law students; and
`rules governing ADR, settlement, or mediation.
`
`*
`
`Subject matters most likely to be treated by standing orders
`
`While there is no uniformity in the use of standing orders, certain mailers are more
`
`likely to be handled by standing orders rather than by local rules. These include rules on:
`
`*
`*
`*
`*
`
`court security;
`internal personnel mailers such as appointments, EEO procedures, etc.;
`referrals to magistrate judges;
`case allocations between judges and/or divisions;
`
`'In one district reviewed, the standing order on redaction of personal identifiers
`"supersedes and vacates" the local rule on the subject, to the extent the local rule is
`inconsistent. This report recommends that standing orders not be used to vacate local rules.
`
`2 One concern with electronic filing rules is that technological developments may
`require constant amendment. This concern might lead a court to think about dispensing with
`the procedural requirements of local rulemaking in favor of using standing orders. As
`in several districts -is to post a user
`discussed in this memo, the better approach -used
`manual on the court's website that can be changed
`to accommodate technological
`developments and other electronic filing problems.
`
`756
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`Report and Recommended Guidelines
`on Standing Orders in District and Bankruptcy Courts
`Page 5
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`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
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`juror pools and selection;
`use of nonappropriated funds;
`Criminal Justice Act plans;
`schedules for forfeiture of collateral;
`conditions of probation and supervised release;
`Speedy Trial Act implementation;
`criteria for waiver of PACER fees;
`court reporters and transcripts;
`attorney admissions and discipline matters; and
`naturalization ceremonies.
`
`4.
`
`Attempts by some districts to delineate the proper use of standing orders
`
`Some districts have, by local rule, defined the type of matters to be covered by
`standing orders. For example, Local Civil Rule 1. 1 of the Northern District of Oklahoma
`states in part as follows:
`
`General Orders, which are available on the Court's website, are issued by the
`Court to establish procedures on administrative matters and less routine
`matters which do not affect the majority of practitioners before this Court.
`
`As another example, Local Rule 83.1.2(a) of the District of Kansas provides that the
`court may issue "standing orders dealing with administrative concerns or with matters of
`temporary or local significance."
`Like Oklahoma's
`local rule, this rule identifies
`administrative matters as the most appropriate use of standing orders. But the Kansas local
`rule also allows standing orders on "matters of temporary or local significance" and does not
`include "less routine matters which do not affect the majority of practitioners before the
`court" in the topics that standing orders should address.
`
`The Eastern District of Californiia, in Local Rule 1-102(a), carefully distinguishes
`between the content of local rules and standing orders:
`
`Outside the scope of these Rules are matters relating to internal court
`administration
`that,
`in the discretion of the Court en banc, may be
`accomplished through the use of General Orders, provided, however, that no
`
`757
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`Report and Recommended Guidelines
`on Standing Orders in District and Bankruptcy Courts
`Page 6
`
`matter appropriate for inclusion in these Rules shall be treated by General
`Order. No litigant shall be bound by any General Order.
`
`The Eastern District of California rule is the most limited of the three examples. Its approach
`restricts standing orders to matters such as funding, PACER fees, evacuation plans, case
`assignment, personnel appointments, and the like. This local rule specifically states that
`nothing in the court's standing orders may directly affect a litigant.
`
`5.
`
`Finding standing orders on a court's webs ite
`
`The AO reports that in the 11I districts reviewed, there was considerable variance in
`locating general or standing orders on the court's website. A review of a number of other
`district websites also found a widespread variance in the manner and web location for posting
`standing orders. Some districts have a link for "general orders" or "standing orders"; others
`do not. One district has a link entitled "local documents" that then has a sub-link to
`"administrative orders." Another district has a link entitled "rules." Another district locates
`standing orders under "general information" but a separate link to "rules" leads only to the
`local rules.
`
`Once the link to standing orders is found, the question is how to find a particular order
`or all orders that might be relevant to a case or topic. In many courts, it is not very difficult
`to review the standing orders for relevance. For example, in one district, there are five
`standing orders on the website, and they are listed by topic:
`
`*
`
`06-01 Extending Suspension of Some Requirements of Local Civil Rules
`10.1(b); 81.2(b); 501.1
`* 05-04 Suspension of Some Requirements of Local Civil Rule 10. 1(b)
`* 05-03 Adoption and Implementation of the Model Third Circuit Electronic
`Device Policy
`* 05-02 Multiple, Unrelated Defendants in Matters
`05-01 Mandatory Electronic Filing
`*
`* Guideline Sentencing
`
`But some districts simply list their standing orders chronologically or by number, with no
`indication of subject matter. This requires the practitioner to open and review every standing
`
`758
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`Report and Recommended Guidelines
`on Standing Orders in District and Bankruptcy Courts
`Page 7
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`order to see if it is relevant and to be sure that all relevant orders have been located. Few
`districts provide a search function for standing orders.
`
`Because one of the major concerns about standing orders is lack of notice, it is
`particularly important that a practitioner be able to find standing orders and review them for
`relevance. Those judges responding to the AO survey widely agreed that standing orders
`should be posted on the same locations on each court's Internet home page (87%, 74 out of
`85 respondents). There was even stronger agreement that standing orders should be listed,
`indexed, and made searchable so that orders on particular topics are easy to locate (94%, 79
`out of 84 respondents).
`
`6.
`
`Standing orders of individual judges
`
`In addition to standing or general orders of the district or division, many judges also
`issue standing or general orders to apply only to cases in their courts. Under section 205(a)
`of the E-Government Act of 2002, all such orders must be posted on the court's website.
`Nonetheless, in some districts, these individual-judge standing orders are not posted on the
`court's website. In other districts, the individual-judge standing orders are posted as separate
`documents for each judge; the link is found next to the judge's name, after "Judges" is
`clicked on the main web page. These individual-judge standing orders are usually long
`up to 50 pages -
`and are in a .pdf format that is not easily searchable. These documents
`often repeat much of what is also in the district's or division's standing orders or local rules.
`But these documents also include variations from the district or division standing orders or
`local rules and from other judges' individual orders, ranging from significant to minor.
`These variations are usually not highlighted or readily identifiable. Individual-judge orders
`are also supplemented or revised from time to time, so that a review on one day does not
`assure complete familiarity on a later day. The results of the research and survey highlighted
`the importance of consistent posting of individual-judge standing orders as well as district-
`or division-wide standing orders, and of making orders on particular topics easier to find.
`
`Ill.
`
`Analysis of the Case Law
`
`The case law reviewing the content of standing orders is relatively sparse, but four
`basic principles can be derived:
`
`759
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`Report and Recommended Guidelines
`on Standing Orders in District and Bankruptcy Courts
`Page 8
`
`1) Standing orders (both by the district and by an individual judge) can be an
`appropriate exercise of a court's inherent authority over management of its cases and control
`of the courtroom. See, e.g., United States v. Ray, 375 F.3d 980, 993 (9th Cir. 2004) (standing
`order requiring U.S. Attorney to assemble information required by PROTECT Act to be
`submitted to the Sentencing Commission was upheld as a proper exercise of "the court's
`inherent authority to regulate the practice of litigants before it").
`
`2) Standing orders may be found improper if they impose requirements beyond those
`imposed by (or in some other way conflict with) national rules or statutes. See, e.g.,
`Commercial Cleaning Servs., L.L. C. v. Colin Ser'. Sys., Inc., 271 F.3d 374, 386 (2d Cir.
`2001) (application of standing order on Civil RICO pleading found to be improper because
`it imposed requirements "in excess of the essential elements of a RICO claim"); United
`States v. Zingsheim, 384 F.3d 867, 871 (7th Cir. 2004) (application of standing order found
`to be improper because it was used to defer downward departure decisions when deferral was
`not authorized by Rule 35).
`
`3) Appellate courts have expressed concern about the lack of notice and public
`participation in the implementation of standing orders and have on occasion suggested that
`matters addressed in standing orders would be better placed in local rules. See, e.g., In re
`Fidelity/Micron Sec. Litig., 167 F.3d 735, 737 n.lI (1 st Cir. 1999) (In response to appellants'
`claim that they were not aware of the district court's standing order on cost allocation, the
`court stated: '"[W]e urge the district courts to avoid incipient problems of this type by
`incorporating standing orders into local rules or, at least, making them readily available in
`the office of the Clerk of the district court."). Judge Fasterbrook emphasized the difference
`between standing orders and local rules in In re Dorner:
`
`Adopting local rules through the device of standing orders
`contravenes the Rules Enabling Act in several ways beyond the
`vice of inconsistency. First, rules must be reviewed by an
`advisory committee. Second, rules may be adopted only after
`public notice and opportunity for comment. Third, rules
`adopted by district courts must be submitted to the council of the
`circuit for review. Finally, all local rules must be sent to the
`Director of the Administrative Office, who ensures their public
`availability. The [court] violated all of these requirements when
`
`760
`
`

`

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`Report and Recommended Guidelines
`on Standing Orders in District and Bankruptcy Courts
`Page 9
`
`it used a nonpublic standing order to contradict [Bankruptcy]
`Rules 8006 and 8007....
`
`In re Dorner, 343 E.3d 910, 913 (7th Cir. 2003) (internal citations omitted).
`
`4) Standing orders may be improper to the extent they impose inflexible standards that
`do not accommodate the particular circumstances of a case. See, e.g., In re Fidelity/Micron
`Sec. Litig., 167 F.3d 735, 737 (1 st Cir. 1999) (concluding that district court's standing order
`on allocation of costs "raises a core concern: it does not leave sufficient room for
`individualized consideration of expense requests").
`
`IV. Results of the Research and Surveys
`
`Too many standing orders raise many of the same concerns as too many local rules,
`as well as problems of lack of notice to, and comment from, the public. These problems are
`exacerbated by difficulties in finding standing orders on particular topics. The fact that
`individual judges as well as districts and divisions issue standing orders leads to a large
`number of orders. These problems can be reduced by using standing orders, as most courts
`do, to address only a narrow range of topics and by ensuring that the orders are easy to find.
`
`As a general matter, standing orders are most appropriate to address matters that are
`of no direct concern to practicing attorneys or litigants (internal administration); that require
`action for too short a time period to make the use of a local rule practical (temporary
`problems); or that require prompt action to address an emergency (emergencies). When
`standing orders are appropriate, whether district-wide, division-wide, or individual-judge,
`they should be easy to find and search. Standing orders should be posted on websites in a
`consistent way from court to court and have indexes or other features that make it easier for
`lawyers and litigants to find and retrieve orders on particular topics.
`
`Attached to this report are specific guidelines on distinguishing between matters that
`are most appropriately addressed by standing orders and those that should be addressed by
`local rules, and on posting standing orders on websites to make them easier to locate. The
`Standing Committee can provide guidance, on request, on questions about the appropriate
`placement of subject mailers in standing orders or local rules.
`In addition, the Standing
`Committee or AO staff can provide, on request, general advice on posting standing orders
`on each district's website and making it easier to find orders addressing specific topics.
`
`761
`
`