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The Southern District of Indiana recently amended several Local Rules, which become effective July 1. Most notably, Local Rule 7-1(e) regarding page limits on briefing reduces opening and response briefs from 35 to 30 pages, with reply briefs reduced from 20 to 15 pages.
These page limitations apply to all motions and briefs, including dismissal and summary judgment. As before, if the Court allows a longer brief “for extraordinary and compelling reasons,” a table of contents, table of authorities, and statement of issues are required.
The modest reduction in page lengths resulted from court concern over lengthy briefs in situations when the merits of the motion do not require such volume. The Local Rules Committee recommended the reduction to 30 pages and 15 pages, which aligns with the page limitations for appellate briefs under Fed. R. App. P. 32(A)(7)(a).
By comparison, in the Northern District of Indiana the opening brief limits per Local Rule 7-1(e) are 25 pages and then 15 pages for reply. As in the Southern District, if the Court allows an oversized brief for extraordinary and compelling reasons tables and statement of issues are required.
For summary judgment briefs in the Northern District, Local Rule 56-1 also requires a separate Statement of Material Facts for the movant, and for the non-movant a separate Response to Statement of Material Facts. Presently these do not have a page limitation, although the Local Rules Committee has been considering a proposal to recommend that the Court place a 25-page limit on these separate statements.
For those who have heard any Indiana federal judges speak at CLE programs in recent years, a common refrain is that some briefs are longer than the motion justifies. Page limits are just that—limits not targets.
Related cases: Southern District Local Rule 40-1(d) has long required a Notice of Related Action to be filed “as soon as it appears that the party’s case and another pending case: (A) arise out of the same transaction or occurrence; (B) involve the same property; or (C) involve the validity or infringement of the same patent, trademark, or copyright.” The Local Rule is amended effective July 1 to include this statement, “This Notice requirement is not satisfied by indicating that a case is related on the Civil Cover Sheet.”
Discovery decision of note: Magistrate Judge Wildeman recently issued a thorough order addressing a variety of somewhat common discovery issues, and the opinion contains helpful guidance. See Doe v. University of Southern Indiana, No. 3:21-cv-00144-TWP-CSW (April 4, 2024).
Notable points include:
A discussion of discoverability under Rule 26(b)(1) with reference to Fed. R. 401, which “informs that evidence is relevant if ‘it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” A party faces “a significant obstacle in arguing that evidence should be barred because it is not relevant, given that the Supreme Court has stated that there is a ‘low threshold’ for establishing that evidence is relevant.’ United States v. Boros, 668 F.3d 901, 907.”
“While Rule 37 does not place a time limit on filing a motion to compel, court have recognized that such motions must be timely when viewed in light of the procedural posture of the case. . . . As a general rule, motions to compel filed after the close of discovery are almost always deemed untimely.” Dixon v. Jefferson Capital Systems, LLC, 1:19-cv-02457-JMS-DML (Dkt. 180 at 22), 2021 WL 59084731 (S.D. Ind. Dec. 14, 2021) (citing Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001).”
“In Binks, our Circuit established the point in time at which a document is prepared in anticipation of litigation. Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109 (7th Cir. 1983). Specifically, ‘while litigation need not be imminent, the primary motivating purpose behind the creation of a document or investigative report must be to aid in possible future litigation.’ Binks, 709 F.2d at 1119 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)). However, ‘[t]he mere fact that litigation does eventually ensue’ is insufficient to invoke the work-product doctrine. Binks, 709 F.2d at 1118. Rather, ‘the party seeking to assert the work product privilege has the burden of proving that at the very least some articulable claim, likely to lead to litigation, has arisen.’ Id. at 1119.”
“Plaintiff asks the Court to sanction Defendant in a very specific way – by deeming certain facts established as true and by precluding certain witnesses from testifying under Rule 37(b)(2). The Seventh Circuit makes clear no sanctions under Rule 37(b) are appropriate until an order is issued pursuant to Rule 37(a) and a party fails to comply with that order. Evans, 932 F.3d at 1046 (7th Cir. 2019). Defendant has not failed to comply with an order issued under Rule 37(a). Therefore, the relief sought under Rule 37(b) is not appropriate, and Plaintiff’s request for such relief is DENIED.”
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John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90, serves as Chair of the Local Rules Advisory Committee, S.D. Indiana, and is a member of the Local Rules Advisory Committee, N.D. of Indiana. Opinions expressed are those of the author.
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