UNITED ST ATES DISTRICT COURT (2017)

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UNITED ST ATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

E N TE R E D

GENERAL ORDER

JUNE 8, 2017

IN THE MATTER OF THE AMENDMENTS TO THE

LOCAL RULES OF PROCEDURE

JII -88117

TERESA L 01;Pt-'NER, CLERK

U.S. Distrlci Court

Southern District of West Vlrglnll

It is hereby ORDERED that the Local Rules of Procedure for the Southern District of West

Virginia are hereby amended effective June 8, 2017.

Attachment 1 summarizes the changes made to select Local Rules of Civil Procedure.

Attachment 2 summarizes the changes made to select Local Rules of Criminal Procedure.

Attachment 3 is a copy of the amended Local Rules of Procedure for the Southern District

of West Virginia effective June 8, 2017.

Attachment 4 are the forms referenced in the Local Rules.

The Clerk is directed to provide a copy of this General Order to the Judicial Council of the

United States Court of Appeals for the Fourth Circuit.

ENTER:

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( 2,,0 I

DAVID A. FABER, SENIOR U. S. DISTRICT JUDGE

ATTACHMENT 1

LOCAL RULES OF CIVIL PROCEDURE

(Select Revised Local Rules of Civil Procedure)

LOCAL RULES OF CIVIL PROCEDURE

(Select Revised Local Rules of Civil Procedure)

LR Civ P 3.4.

(a)

Local Filing Requirements

Civil Docket Cover Sheet.

A civil docket cover sheet, in a form supplied by the clerk, must be completed

and submitted with any complaint commencing an action or any notice of

removal from state court. Each cover sheet must cite the title and section of the

United States Code or relevant statute pursuant to which the action or notice is

filed. A cover sheet is for administrative purposes only.

(b)

State Court Docket Sheet.

When any notice of removal from state court is filed, the filing party must also

attach to the notice of removal a copy of the docket sheet from the circuit court

from which the case is being removed in addition to any other documents

required by federal rule or statute.

LR Civ P 5.1.

(a)

Filing Pleadings and Other Papers

Filing of Papers.

Except as otherwise permitted or required by the Federal Rules, these local

rules, or order, the original of all papers, not electronically filed, that must be

filed with the court shall be filed at the clerk=s office at the point of holding

court in which the particular action or proceeding is docketed. In emergency

situations, due to travel conditions, time limitations or other factors, filings may

be made at any of the clerk=s offices, in which event the papers so filed shall be

forwarded by the receiving clerk=s office to the clerk=s office at the point of

holding court in which the particular action or proceeding is docketed.

(b)

Filing by Facsimile Transmission.

The clerk=s office will not accept any facsimile transmission for filing unless

ordered by the court.

(c)

Filing by Electronic Means.

AElectronic Filing@ means uploading a document directly from the filer=s

computer using the Court=s Case Management/Electronic Filing System

(CM/ECF) onto the case docket.

Pursuant to FR Civ P 5(d)(34), the clerk=s office will accept pleadings or

documents filed, signed or verified by electronic means that are consistent with

the technical standards, if any, that the Judicial Conference of the United States

establishes. A pleading or document filed by electronic means in compliance

with this Rule constitutes a written paper for the purpose of applying these

Rules and the Federal Rules of Civil Procedure. All electronic filings shall be

governed by the court=s Administrative Procedures for Electronic Case Filing,

the provisions of which are incorporated by reference, and which may be

amended from time to time by the court.

(d)

Documents filed by an attorney must include the attorney’s registration

number. Attorneys who are licensed in West Virginia must provide their West

Virginia license number as their attorney-registration number. Visiting

Attorneys licensed in a state other than West Virginia must provide the state of

licensure and the license number as their attorney-registration number.

(e)

Service of Documents through the Court’s Electronic Transmission Facilities:

A party may serve a paper under FR Civ P 5(b)(2)(E) by using the court’s

electronic transmission facilities in accordance with the court’s Administrative

Procedures for Electronic Case Filing. If a document is served electronically,

the notice of electronic filing generated by the court’s electronic transmission

facilities constitutes a certificate of service with respect to those persons to

whom electronic notice of the filing is sent, and no separate certificate of

service need be filed with respect to those persons.

Because the electronic notification also identifies parties and/or attorneys that

are NOT registered users of the system, the filer is responsible for serving

copies of pleadings on unregistered users by other means. A certificate of

service should be electronically filed with the Court anytime a document must

be served by other than electronic means.

LR Civ P 7.1.

(a)

Motion Practice

Motions and Supporting Memoranda.

(1)

General. All motions shall be concise, state the relief requested

precisely, and be filed timely but not prematurely. Copies of depositions

(or pertinent portions thereof), admissions, documents, affidavits, and

other such materials or exhibits upon which the motion relies shall be

attached to the motion, not the supporting memorandum.

(2)

Length. A memorandum of not more than 20 pages in length must

accompany the following types of motions: (1) to intervene; (2) to

transfer; (3) to vacate; (4) to reconsider; (5) for rehearing; (6) for

attorney fees; (7) for clarification; (8) to realign parties; (9) to

consolidate; (10) to recuse; (11) to dismiss; (12) to remand; (13) for

summary judgment; (14) for sanctions; (15) for default judgment; (16)

for declaratory judgment; (17) to compel arbitration; (18) for injunctive

relief or for a temporary restraining order; (19) for a new trial, to

reconsider or to alter or amend judgment; (20) to reinstate or reopen a

civil action; (21) to substitute a party; (22) to stay; (23) to seal; or (24)

to show cause.

In addition to these motions, the court has discretion to direct a movant

to submit a memorandum to accompany any other type of motion. If a

movant deems appropriate, a memorandum of not more than 20 pages

in length may accompany any other type of motion even if not required

by this rule or the court. Any response and reply memoranda shall

adhere to the same page limitation.

Motions to exceed the page limitation are disfavored and will be denied

absent a showing of good cause. Unless extraordinary circumstances

exist, a motion to exceed the page limitation for a supporting

memorandum of law, memorandum in response, and a memorandum in

reply, must be tendered to the presiding judge at least 3 days in advance

of filing the proposed oversized memorandum.

If a memorandum is not submitted as required by this rule or by the

court, the motion will be denied without prejudice.

(3)

Paper Size, Line Spacing and Margins. All memoranda must be on 82

by 11 inch paper. The text must be double-spaced, but quotations more

than two lines long may be indented and single-spaced. Headings and

footnotes may be single-spaced. Margins must be at least one inch on

all four sides. Page numbers may be placed in the margins, but no text

may appear there.

(4)

Typeface and Type Styles. Either a proportionally spaced or

monospaced face may be used. A proportionally spaced face must be

12-point or larger. A monospaced face may not contain more than 102

characters per inch. The font must be clearly legible as determined by

the judicial officer to whom the motion is addressed. The following

fonts are presumed legible: either Times New Roman, Courier New, or

Arial, Century Gothic, Garamond, Georgia, and Century Schoolbook.

(5)

Courtesy Copies of Memoranda. When electronically filing documents

with the clerk=s office, a paper courtesy copy to the assigned judicial

officer is not required except where any motion, memorandum,

response, or reply, together with documents in support thereof, is 50

pages or more in length, or where any administrative record is 75 pages

or more in length.

(6)

Motions to Dismiss. Motions to dismiss shall be given priority status

provided they are designated prominently as a motion to dismiss and

filed as a separate pleading.

(7)

Filing Deadlines for Response and Reply Memoranda. Memoranda and

other materials in response to motions shall be filed and served on

opposing counsel and unrepresented parties within 14 days from the

date of service of the motion. Any reply memoranda shall be filed and

served on opposing counsel and unrepresented parties within 7 days

from the date of service of the memorandum in response to the motion.

Surreply memoranda shall not be filed except by leave of court. These

times for serving memoranda may be modified by the judicial officer to

whom the motion is addressed.

(8)

Referral to Magistrate Judge. Non-dispositive discovery and pretrial

motions relating to discovery practice are referred to a magistrate judge

unless otherwise ordered by the district judge assigned to the case. All

other non-dispositive motions and any dispositive motion may be

referred to a magistrate judge by the district judge assigned to the case.

(9)

Action on Motions. All motions shall be decided expeditiously to

facilitate compliance with the deadlines established by the scheduling

order. Failure of a judicial officer to rule on a dispositive motion may

be good cause for modification of a scheduling order upon motion of a

party. District judges may impose time limits on referred motions and

monitor those time limits.

(910) Courtroom Technology: If any courtroom technology is required for a

hearing, counsel must request any such technology by filing a

certification that the court=s technology staff has been notified. The

certification regarding such notification shall be filed with the clerk no

later than 7 days before the scheduled commencement of the hearing.

LR Civ P 9.7.

Electronic Filing

Electronic filing of documents is required. In addition to the electronic filing, a paper

copy of the certified administrative transcript (and certified supplemental

administrative transcript, if any), however, shall be provided by the Commissioner to

the chambers of the magistrate judge assigned to the action when the answer is filed.

LR Civ P 16.1.

(a)

Scheduling Conferences

Order and Notice Convening of Scheduling Conferences; Removed and

Transferred Actions.

Except in actions exempted by paragraph (g) of this rule or as otherwise

ordered, a judicial officer shall convene a scheduling conference as soon as

practicable, but in any event within 80 days after the appearance of a defendant

and within 110 days after the complaint has been served on a defendant.

By entry of an Order and Notice, a judicial officer shall establish the date, time,

and place of the scheduling conference, and inform the parties of their right to

consent to proceed before a magistrate judge under FR Civ P 73(b). As soon as

practicable, but in no event later than 7 days after the appearance of a defendant,

Tthe clerk shall transmit a notice of the conference to all counsel then of record

and to each then unrepresented party for whom an address is available from the

record. The notice shall also establish the date by which a meeting of the parties

must be held pursuant to FR Civ P 26(f) and paragraph (b) of this rule, and the

date by which a written report on the meeting of the parties must be submitted

to the court pursuant to FR Civ P 26(f) and paragraph (c) of this rule.

In a case removed or transferred to this court, a judicial officer shall convene a

scheduling conference as soon as practicable, but in no event later than 60 days

after removal or transfer. The notice required under this paragraph shall be

transmitted to all parties or their attorneys no later than 7 days after the case is

removed or transferred.

(b)

Obligation of the Parties to Meet.

The parties shall, as soon as practicable and in any event at least 21 days before

the date set for the scheduling conference, meet in person or by telephone to

discuss and report on all FR Civ P 16 and 26(f) matters, and to:

(1)

consider, consistent with paragraph (d) of this rule, whether the case is

complex and appropriate for monitoring in an individualized and casespecific manner through one or more case-management conferences,

and, if it is, to propose for the court=s consideration 3 alternative dates

and times for the first conference;

(2)

agree, if they can, upon the disputed facts that have been alleged with

particularity in the pleadings;

(3)

consider consenting to trial by a magistrate judge; and

(4)

consider alternative dispute resolution processes such as the one in LR

Civ P 16.6; and.

(5)

in cases involving the discovery of electronically stored information

(“ESI”), address matters set forth in LR Civ P 26.5(c).

Counsel and all unrepresented parties who have appeared in the case are jointly

responsible for arranging and being present or represented at the meeting,

agreeing on matters to be considered at the scheduling conference, and

considering a prompt settlement or resolution of the case.

(c)

Written Report on the Meeting of the Parties; Cancellation of Scheduling

Conference.

Counsel and all unrepresented parties who were present or represented at the

meeting are jointly responsible for submitting to the court, no later than 14 days

before the date set for the scheduling conference, a written report on their

meeting. The written report submitted by the parties shall follow a form

available from the clerk and on the court=s web site.

In the report on the meeting, any matters on which the parties differ shall be set

forth separately and explained. The parties= proposed pretrial schedule and plan

of discovery and disclosures shall advise the court of their best estimates of the

time needed to accomplish specified pretrial steps.

The parties= report on their meeting shall be considered by the judicial officer

as advisory only. If, after the date fixed for filing the written report, the judicial

officer determines that the scheduling conference is not necessary, it may be

cancelled and the scheduling order may be entered.

(d)

Conduct of Scheduling Conferences.

Except in a case in which a scheduling conference has been cancelled pursuant

to paragraph (c) of this rule, a judicial officer shall convene a scheduling

conference, which may be held by telephone, within the mandatory time frame

specified in paragraph (a) of this rule regardless of whether the parties have met

pursuant to paragraph (b) of this rule or filed a written report pursuant to

paragraph (c) of this rule.

At the scheduling conference, the judicial officer shall consider any written

report submitted by the parties and discuss with them time limits and other

matters they were obligated to consider in their meeting and that may be

addressed in the scheduling order.

At or following the scheduling conference if one is held, or as soon as

practicable after the date fixed for filing the written report if the scheduling

conference is cancelled, the judicial officer shall determine whether the case is

complex or otherwise appropriate for careful and deliberate monitoring in an

individualized and case-specific manner. The judicial officer shall consider

assigning in the scheduling order any case so categorized to a case-management

conference or series of conferences under LR Civ P 16.2. If the case is so

assigned, the scheduling order, notwithstanding paragraph (e) of this rule, may

be limited to establishing time limits and addressing other matters that should

not await the first case-management conference. The factors to be considered

by the judicial officer in determining whether the case is complex include:

(e)

(1)

the complexity of the issues, the number of parties, the difficulty of the

legal questions and the uniqueness of proof problems;

(2)

the amount of time reasonably needed by the parties and their attorneys

to prepare the case for trial;

(3)

the judicial and other resources required and available for the

preparation and disposition of the case;

(4)

whether the case belongs to those categories of cases that involve little

or no discovery,

(A)

ordinarily require little or no additional judicial intervention, or

(B)

generally fall into identifiable and easily managed patterns;

(5)

the extent to which individualized and case-specific treatment will

promote the goal of reducing cost and delay; and

(6)

whether the public interest requires that the case receive more intense

judicial attention.

Scheduling Orders.

Following the scheduling conference, if one is held, or as soon as practicable

after the date fixed for filing the written report if the scheduling conference is

cancelled, but in any event within 90 days after the appearance of a defendant

and within 120 days after the complaint has been served on a defendant, the

judicial officer shall enter a scheduling order pursuant to FR Civ P 16(b).

(f)

(g)

Modification of Scheduling Order.

(1)

Time limits in the scheduling order for the joinder of other parties,

amendment of pleadings, filing of motions, and completion of

discovery, and dates for conferences before trial, a final pretrial

conference, and trial may be modified for good cause by order.

(2)

Subject to subparagraph (3), stipulations to modify disclosure or

discovery procedures or limitations will be valid and enforced if they

are in writing, signed by the parties making them or their counsel, filed

promptly with the clerk, and do not affect the trial date or other dates

and deadlines specified in subparagraph (1).

(3)

A private agreement to extend discovery beyond the discovery

completion date in the scheduling order will be respected by the court

if the extension does not affect the trial date or other dates and deadlines

specified in subparagraph (1). A discovery dispute arising from a

private agreement to extend discovery beyond the discovery completion

date need not, however, be resolved by the court.

Categories of Actions Exempted.

In addition to those actions and proceedings identified in FR Civ P 81 to which

the Federal Rules of Civil Procedure do not apply, the following categories of

actions are exempted from the requirements of FR Civ P 16(b), 26(a)(1)-(4)

and 26(f), and of the Local Rules of Civil Procedure relating thereto unless

otherwise ordered:

(1)

habeas corpus cases and motions attacking a federal sentence;

(2)

procedures and hearings involving recalcitrant witnesses before federal

courts or grand juries pursuant to 28 U.S.C. § 1826;

(3)

actions for injunctive relief;

(4)

review of administrative rulings;

(5)

Social Security cases;

(6)

prisoner petitions pursuant to 42 U.S.C. § 1983 and ABivens-type@

actions in which plaintiff is unrepresented by counsel;

(7)

condemnation actions;

(8)

bankruptcy proceedings appealed to this court;

(9)

collection and forfeiture cases in which the United States is plaintiff and

the defendant is unrepresented by counsel;

(10)

Freedom of Information Act proceedings;

(11)

certain cases involving the assertion of a right under the Constitution of

the United States or a federal statute, if good cause for exemption is

shown;

(12)

post-judgment enforcement proceedings and debtor examinations;

(13)

enforcement or vacation of arbitration awards;

(14)

civil forfeiture actions;

(15)

student loan collection cases;

(16)

actions which present purely legal issues, require no resolution of

factual issues, and which may be submitted on the pleadings, motions

and memoranda of law; and

(17)

actions filed pursuant to the Employment Retirement Income Security

Act (ERISA), 29 U.S.C. § 1001 et seq.; and

(18)

such other categories of actions as may be exempted by standing order.

LR Civ P 16.3.

Pretrial Conferences in Non-Complex Cases

Abrogated.

(a)

Convening of Pretrial Conferences.

In addition to any scheduling conference and the final pretrial conference, the

judicial officer to whom the case is assigned for trial may convene as many

pretrial conferences as the judicial officer determines will reduce cost and delay

in the ultimate disposition of the case and may require the parties to meet or

confer in advance of a pretrial conference.

(b)

Pretrial Conference Orders.

After a pretrial conference, the judicial officer shall enter an order reciting the

action taken. The order shall control the subsequent course of the action and

may be modified in the same manner as a scheduling order under LR Civ P

16.1(f).

LR Civ P 16.6.

(a)

Mediation

Cases to be Mediated.

The judicial officer may order mediation sua sponte or at the request of any

party. When so ordered, the following provisions of this local rule shall control.

The Southern District of West Virginia also supports the voluntary use of

alternative dispute resolution, and will endeavor to facilitate mediation or

similar proceedings when the presiding judicial officer finds a request to do so

appropriate and timely. The parties are free to engage in mediation without

court involvement so long as it does not interfere with court-ordered deadlines.

(b)

Motion for Exception to Mandatory Mediation.

An attorney or a pro se party may file a motion for leave not to engage in

mediation. The presiding judicial officer may grant the motion for good cause

shown.

LR Civ P 16.6.1.

Timing of Mediation

Mediation shall take place at any time ordered by the court. The parties may consult

with each other and agree upon a mutually convenient date, time, and place for the

mediation and ask the court to approve such arrangements.

LR Civ P 16.6.2.

Selection of Mediator; Notice of Nomination

The parties are expected to agree upon a mediator, the amount of the mediator=s fee,

and the responsibility for payment. Not later than 7 days before the date set for

mediation, or as otherwise directed by the court, the parties shall file a notice of

nomination with the clerk, setting forth the name, address, telephone number, facsimile

number, and e-mail address of the nominated mediator. The form “Notice of

Nomination,” available from the clerk and on the court’s website, shall be used. If the

parties are unable to agree on a mediator, then the parties shall promptly notify the

presiding judicial officer,. The judicial officer may then who shall without delay

appoint a mediator, set the amount of the mediator=s fee, and assign responsibility for

payment. The parties may request that a judicial officer (who is not the presiding

judicial officer) conduct the mediation. Such requests are particularly appropriate in

complex cases or in cases in which a party is financially unable to bear its proportionate

share of the mediation expense.

LR Civ P 16.6.3.

Appointment of Mediator

Abrogated.

Upon the filing of a Notice of Nomination, or upon selection of a mediator by the

presiding judicial officer, an Order Appointing Mediator will be entered, using the

form available from the clerk and on the court=s web site.

LR Civ P 16.6.4.

Attendance at Mediation

Unless the court directs otherwise, the following persons shall attend the entire

mediation in person: (a) all lead trial counsel and (b) any party who is prosecuting a

claim (i.e., the plaintiff(s) and any defendant who has made a counterclaim, crossclaim, or third-party complaint). Unless the court directs otherwise, any other party or

his/her/its representative who is knowledgeable about the facts of the case, and who

has full authority to negotiate on behalf of the party and to approve or recommend a

settlement, shall attend the entire mediation in person or, with prior approval of the

judicial officer, by telephone or other electronic means such as video-conference.

LR Civ P 16.6.5.

Mediation Statements; Confidentiality

The mediator may require the submission of written mediation statements. If the

mediator does not require submission of written mediation statements, any party may

submit a written mediation statement. Mediation statements submitted in writing to the

mediator are confidential. All communications Oral statements made during the

mediation are confidential.

LR Civ P 16.6.6.

Impartiality of Mediator

A mediator shall not serve in a case in which the mediator=s impartiality might

reasonably be questioned. Possible conflicts of interest shall be promptly disclosed by

the mediator to counsel and pro se parties.

LR Civ P 16.6.7.

Compensation of Mediator

Mediators will be compensated at the rate established when the mediator was selected,

with payment as agreed by the parties or ordered by the presiding judicial officer.

LR Civ P 16.6.8.

Notification to Judicial Officer; Report of Mediator

Immediately upon the completion of mediation resulting in the settlement of all or part

of a case, the parties shall notify the chambers of the presiding judicial officers. Within

7 days of the close of mediation, the mediator will file with the clerk a report which

states that all or part of the case was settled (specifying which part of the case settled)

or that it was not settled. If all or part of the case was settled, the parties shall, at the

mediation, place in writing the terms of the settlement, and all participants shall sign

the terms of the settlement, with the mediator retaining the original. Within 30 days of

the mediation, the parties shall submit to the chambers of the presiding judicial officer,

an agreed order of dismissal as to all or part of the case that was settled.

LR Civ P 26.4.

(a)

Clawback Orders, Protective Orders, and Sealed Documents

Clawback Orders.

At the court’s request, or if the parties jointly agree to the entry of an order

governing the clawback of privileged or protected materials that are

inadvertently disclosed, the parties should complete and submit one of the

following orders, which are preferred by the court: Order Governing the

Inadvertent Disclosure of Documents and Materials under Rule 502(b),

available on-line at www.wvsd.uscourts.gov, or Order Governing the

Inadvertent Disclosure of Documents and Materials under Rule 502(d), also

available on-line. Motions seeking to modify the provisions of the approved

clawback orders should be made sparingly and only for good cause.

(a)(b) Protective Orders.

To succeed on a motion for the entry of a protective order shielding information

from dissemination, the movant or movants must demonstrate with specificity

that (1) the information qualifies for protection under FR Civ P 26(c), and (2)

good cause exists for restricting dissemination on the ground that harm would

result from its disclosure. When filing a joint motion for the entry of a

protective order, the movants shall complete and submit with the motion the

court’s on-line Protective Order found at www.wvsd.uscourts.gov. The court’s

on-line Protective Order is the preferred protective order in this district.

Therefore, motions requesting modifications to the provisions of the court’s

Protective Order should be made sparingly and only for good cause.

If a party, or parties jointly, seek entry of a protective order to shield

information from dissemination, the movant or movants must demonstrate with

specificity that (1) the information qualifies for protection under FR Civ P

26(c), and (2) good cause exists for restricting dissemination on the ground that

harm would result from its disclosure.

(b)(c) Sealed Documents.

(1)

General. The rule requiring public inspection of court documents is

necessary to allow interested parties to judge the court=s work product

in the cases assigned to it. The rule may be abrogated only in

exceptional circumstances.

(2)

LR Civ P 26.5

(a)

(b)

Submission. Unless otherwise authorized by law, a motion to seal shall

be filed electronically pursuant to the Administrative Procedures for

Electronic Case Filing and accompanied by a memorandum of law

which contains:

(A)

the reasons why sealing is necessary, including the reasons why

alternatives to sealing, such as redaction, are inadequate;

(B)

the requested duration of the proposed seal; and

(C)

a discussion of the propriety of sealing, giving due regard to the

parameters of the common law and First Amendment rights of

access as interpreted by the Supreme Court and our Court of

Appeals.

Discovery of Electronically Stored Information

Prior to a Rule 26(f) conference, each party shall individually assess the

likelihood that its ESI will play a role in discovery. When a party in possession

of ESI reasonably anticipates, or should anticipate, that its ESI will play a

significant role, the party shall complete the following tasks for discussion at

the Rule 26(f) conference:

(1)

determine how and where its ESI is stored; how it has been or can be

preserved, accessed, retrieved, and produced; and any other issues to be

discussed at the Rule 26(f) conference including the issues set forth in

subparagraph (c) below; and

(2)

identify a person or persons with knowledge about the ESI, with the

ability to facilitate, through counsel, the preservation and discovery of

ESI.

At the Rule 26(f) conference, counsel shall meet and confer about:

(1)

the steps the parties have taken to preserve ESI;

(2)

the anticipated scope of ESI discovery and the search protocol for

locating responsive ESI, including methods to filter the data, such as

using search terms or date ranges;

(3)

procedures to deal with inadvertent production of privileged

information;

(4)

accessibility of ESI, including but not limited to the accessibility of

back-up, deleted, archival, or historic legacy data;

(5)

the media, format and procedures for preserving and producing ESI;

(6)

allocation of costs of preservation, production, and restoration (if

possible and/or necessary) of any ESI;

(7)

the need for a designated resource person through who all issues

relating to the preservation and production of ESI should be addressed;

(8)

the need for an Order setting out the ESI protocol; and

(9)

any other issues related to the discovery of ESI.

LR Civ P 37.1.

(a)

Discovery Disputes

Objections to Disclosures or Discovery.

Objections to disclosures or discovery that are not filed within the response

time allowed by the Federal Rules of Civil Procedure, the scheduling order(s),

or stipulation of the parties pursuant to FR Civ P 29, whichever governs, are

waived unless otherwise ordered for good cause shown. Objections shall

comply with FR Civ P 26(g) and any claim of privilege or objection shall

comply with FR Civ P 26(b)(5).

(b)

Duty to Confer.

Before filing any discovery motion, including any motion for sanctions or for

a protective order, counsel for each party shall make a good faith effort to

confer in person or by telephone to narrow the areas of disagreement to the

greatest possible extent. It shall be the responsibility of counsel for the moving

party to arrange for the meeting.

(c)

Motions to Compel.

A motion to compel disclosure or discovery must be accompanied by a

statement setting forth verbatim each discovery request or disclosure

requirement and any response thereto to which an exception is taken. In

addition, the movant may include a statement of the grounds and pertinent

authorities relied upon and shall file such a statement if requested by the court.

If the discovery request or disclosure requirement is ignored, the movant need

only file a motion to compel without setting forth verbatim the discovery

request or disclosure requirement. Motions to compel or other motions in aid

of discovery not filed within 30 days after the discovery response or disclosure

requirement was due are waived, and in no event provide an excuse, good cause

or reason to delay trial or modify the scheduling order. The 30-day deadline

may be extended by court order for good cause shown, or by stipulation of the

parties, so long as the extension does not interfere with the scheduling order.

Any such stipulation must be filed pursuant to LR Civ P 11.2.

(d)

Telephonic Conferences During Discovery Events.

If a dispute arises during a discovery event, the parties must attempt in good

faith to resolve the matter without judicial intervention. If a good faith conferral

fails to resolve the dispute and if its disposition during the discovery event is

likely to result in savings of substantial time and expense, a party or counsel

may contact the chambers= staff of the magistrate judge to whom the case is

assigned to request a telephone conference during the discovery event.

LR Civ P 47.1.

(a)

Trial Juries

Examination of Prospective Jurors.

The judicial officer shall conduct the examination of prospective jurors called

to serve in civil actions. In conducting the examination, the judicial officer shall

identify the parties and their respective counsel and briefly outline the nature

of the action. The judicial officer shall interrogate the jurors to elicit from them

whether they have any prior knowledge of the case and what connections they

may have, if any, with the parties or their attorneys. Inquiries directed to the

jurors shall embrace areas and matters designed to discover basis for challenge

for cause, to gain knowledge enabling an intelligent exercise of peremptory

challenges, and to ascertain whether the jurors are qualified to serve in the case

on trial. The judicial officer may consult with the attorneys, who may request

or suggest other areas of juror interrogation. To the extent deemed proper, the

judicial officer may then supplement or conclude his or her examination of the

jurors.

(b)

Jury Lists.

Names of jurors drawn for jury service from the court=s qualified jury wheel

may be disclosed only in accordance with the court=s Jury Selection Plan,

approved and made effective February 25, 2009, and as it may be modified.

Jury lists prepared by the clerk shall be made available to counsel and

unrepresented parties as provided in the Jury Selection Plan.

LR Civ P 54.1.

Fees and Costs

Fees and costs shall be taxed and paid in accordance with the provisions of 28 U.S.C.

§§ 1911-1929, and other controlling statutes and rules. If costs are awarded, the

reasonable premiums or expenses paid on any bond or other security given by the

prevailing party shall be taxed as part of the costs.

The prevailing party shall prepare a bill of costs within 30 days after entry of the final

judgment on the form supplied by the clerk. The bill of costs shall contain an itemized

schedule of the costs and a statement signed by counsel for the prevailing party that

the schedule is correct and the charges were actually and necessarily incurred. The

original of the bill of costs shall be filed with the clerk and a copy served on counsel

for the adverse party or on the unrepresented adverse party.

If an adverse party makes sSpecific objections to any item of costs filed by the

prevailing party shall be filed, within 14 days after service of a bill of costs. Any

response to the objections shall be filed within 7 days of service of the objections. The

clerk shall set the matter for hearing or may assess costs based on the papers submitted.

LR Civ P 65.1.1.

Approval of Bonds by the Clerk

Except in criminal cases or for supersedeas bonds pursuant to FR Civ P 62, or where

another procedure is prescribed by law, the clerk may approve bonds without an order

if:

(a)

the amount of the bond has been fixed by prior order, local rule, or statute; and

(b)

the bond is secured by

(1)

the deposit of cash or obligations of the United States,

(2)

the guaranty of a corporate surety holding a certificate of authority from

the Secretary of the Treasury, or

(3)

the guaranty of a qualified property owner when the guaranty is

accompanied by an acceptable certificate of justification.

(a)

General Requirements. Every bond must be executed by the principal obligor

and, if applicable, one or more sureties qualified as provided in this rule.

(b)

Corporate Sureties.

(1)

A corporate surety must be qualified to write bonds under 31 U.S.C.

§§ 9301–9309 and approved by the Secretary of the Treasury of the

United States.

(2)

The representative of the corporate surety that signs the bond must

attach to the bond a power of attorney that establishes the

representative’s authority to bind the corporate surety.

(c)

Real-Property Bond.

(1)

A person may serve as a surety on a real-property bond only by court

order. A person seeking permission to serve as a surety on a real

property bond must:

(A)

offer as security real property located in the State of West

Virginia, or other property as approved by a judge of this court,

of an unencumbered value equal to or greater than the stated

amount of the bond;

(B)

be competent to convey the real property; and

(C)

submit an affidavit and supporting documents including: (i) a

legal description of the real property; (ii) a complete list of all

encumbrances and liens on the real property; (iii) a current

appraisal of the real property by a qualified appraiser; (iv) a

waiver of inchoate rights; (v) a certification that the real

property is not exempt from execution; and (vi) proof of

payment of property taxes.

(2)

Within 14 days after the court approves the real-property bond, the

surety must file with the court a copy of a notice of encumbrance filed

by the surety with the county recorder or registrar of titles that identifies

the bond as an encumbrance on the real property.

(3)

A real-property bond will be released only by court order.

(d)

Cost Bonds. The court may, on motion or on its own, order a party to file a

bond or other security for costs in an amount, and subject to conditions,

specified by the court.

(e)

Cash bonds. Deposit of cash bonds is governed by LR 67.1. Withdrawal of cash

bonds is governed by LR 67.2.

(f)

Objections. Any party may object to the issuance of a bond.

(g)

All bonds must receive court approval.

LR Civ P 67.1.

(a)

Deposits Pursuant to FR Civ P 67

Court Order Required. A party may deposit money into the court registry only

by court order. A party seeking to deposit money into the court registry under

FR Civ P 67(a) must file and serve a motion requesting an order permitting the

deposit.

(b)

Any order obtained by a party that directs the clerk to invest funds pursuant to

28 U.S.C. § 2041 shall provide for payment by check made payable to the

Clerk, United States District Court, for deposit in a renewable time certificate,

treasury bill, passbook savings account, or other secure instrument.

(a)(c) In accordance with FR Civ P 67, funds paid to the clerk for deposit into the

court’s registry shall be placed in an interest-bearing account or instrument as

ordered, and shall remain so deposited pending disposition by subsequent court

order.

LR Civ P 67.2.

Withdrawal of Money from the Court Registry

(a)

Court Order Required. A party may withdraw money from the court registry

only be court order. A party seeking to withdraw money from the court registry

must file and serve a motion requesting an order permitting the withdrawal and

specifying whether the moving party is seeking withdrawal before the

expiration of the 14-day automatic stay imposed under FR Civ P 62(a). The

proposed order should specify: (i) the name of each payee; (ii) the amount of

money to be disbursed to each payee; and (iii) the percentage of accrued interest

to be disbursed to each payee, if applicable.

(b)

The party must complete a Withdrawal Payee Information form that is available

from the clerk and electronically on the court’s website at

www.wvsd.uscourts.gov. The social security number information collected by

the clerk on the form is provided to the depository institution pursuant to Title

26 of the United States Code and Internal Revenue service regulations, as a

condition of the release of said funds. This information is used for

administrative purposes only and will be kept confidential. The withdrawal

Payee Information form will not be filed on the court’s ECF system.

(a)(c) Fees. A charge for the handling of registry funds deposited with the court will

be assessed from the interest earnings in accordance with the fee schedule

issued by the Director of the Administrative Office of the United States. Funds

that are invested through the Court Registry Investment System will also be

assessed an investment services fee from the interest earnings in accordance

with the District Court Miscellaneous Fee Schedule. In accordance with FR Civ

P 67, funds paid to the clerk for deposit into the court=s registry shall be placed

in an interest-bearing account or instrument as ordered, and shall remain so

deposited pending disposition by subsequent court order. Any order obtained

by a party that directs the clerk to invest funds pursuant to 28 U.S.C. § 2041

shall provide for payment by check made payable to the Clerk, United States

District Court, for deposit in a renewable time certificate, treasury bill,

passbook savings account, or other secure instrument. Any order authorizing

disbursement of funds on deposit shall provide for payment of the statutory

administrative registry fee from the income earnings prior to any other

distribution of the account. If any individual or entity receives payment of

earned interest in excess of $10.00 per annum, parties shall provide

identification by name, address and social security or tax identification number

in compliance with Title 26 of the United States Code, and Internal Revenue

Service regulations, as a condition of the release of said funds. A copy of any

order affecting the deposit, investment or disbursement of funds in the court=s

registry shall be served on the clerk.

LR Civ P 78.1.

Hearing on Motions

The judicial officer may require or permit hearings on motions, and the hearings may

be by telephone or other electronic means.

LR Civ P 83.1.

(a)

Admission of Attorneys

Admission as Member of Bar or Court.

Any person who is admitted to practice before the Supreme Court of Appeals

of West Virginia and who is in good standing as a member of its bar, is eligible

for admission as a member of the bar of this court. An eligible attorney may be

admitted as a member of the bar of this court upon motion of a member

(Sponsoring Attorney) who shall sign the register of attorneys with the person

admitted. If the motion for admission is granted, the applicant shall take the

attorney=s admission oath or affirmation, sign the attorneys= register, and pay

the clerk the admission fee. Once admitted under this provision, the person need

not have an office for the practice of law in West Virginia to appear and practice

in this court.

Any person who has been subject to disciplinary suspension or disbarment by

the West Virginia Supreme Court of Appeals but has been readmitted to

practice by the Supreme Court and is in good standing as a member of its bar,

is eligible for re-admission as a member of the bar of this court. The attorney

may be re-admitted as a member of the bar of this court upon motion of a

member (Sponsoring Attorney) who shall sign the register of attorneys with the

person re-admitted. If the motion for re-admission is granted, the applicant shall

take the attorney=s admission oath or affirmation, sign the attorney=s register,

and pay the clerk the admission fee.

(b)

Sponsorship of Visiting Attorneys by Members of Court.

The Sponsoring Attorney must be a member of the bar of this court, have an

office for the practice of law in West Virginia, and practice law primarily in

West Virginia.

(c)

Appearance by Assistant United States Attorneys and Assistant Federal

Public Defenders.

Any attorney employed by the United States Attorney or the Federal Public

Defender for this judicial district must qualify as a member of the bar of this

court within one year of his or her employment. Until so qualified, the attorney

may appear and practice under the sponsorship of the appointing officer.

(d)

Appearance by Federal Government Attorneys.

Federal government attorneys who are not members of the bar of this court

need not complete the Statement of Visiting Attorney. In cases where the

United States Attorney is associated with other government attorneys in

proceedings involving the Federal government, the United States Attorney

(except in student loan collection cases), in addition to other Federal

government attorneys, shall sign all pleadings, notices, and other papers filed

and served by the United States. All pleadings, notices, and other papers

involving the Federal government may be served on the United States Attorney

in accordance with the service requirements of the Federal Rules of Civil

Procedure and the Federal Rules of Criminal Procedure.

LR Civ P 83.2.

(a)

Legal Assistance by Law Students

Written Consent.

With the written consent of an indigent and his or her attorney of record, an

eligible law student may appear on behalf of that indigent. With the written

consent of the United States Attorney or his or her representative, an eligible

law student may also appear on behalf of the United States. With the written

consent of the Federal Public Defender, an eligible law student may appear on

behalf of the Federal Public Defender. With the written consent of the Attorney

General of the State of West Virginia or his or her representative, an eligible

law student may also appear on behalf of the State of West Virginia. In each

case in which an eligible law student appears, the consent shall be filed with

the clerk.

(b)

Responsibilities of Attorneys of Record.

An eligible law student may assist in the preparation of pleadings, briefs, and

other documents to be filed in this court, but such pleadings, briefs, or

documents must be signed by the attorney of record. An eligible law student

may also participate in hearings, trials, and other proceedings with leave of

court, but only in the presence of the attorney of record. The attorney of record

shall assume personal professional responsibility for the law student=s work.

The attorney of record shall be familiar with the case and be prepared to

supplement or correct any written or oral statement made by the law student.

(c)

Eligibility Requirements.

To be eligible to appear pursuant to this rule, the law student must:

(1)

be enrolled in a law school approved by the American Bar Association;

(2)

have successfully completed legal studies for at least 4 semesters, or the

equivalent if the school is on some basis other than a semester basis;

(3)

be certified by the dean of his or her law school as being of good

character and competent legal ability. The dean=s certification shall be

filed with the clerk. This certification may be withdrawn by the dean at

any time without notice or hearing and without any showing of cause

by notifying the clerk in writing, or it may be terminated by the court at

any time without notice of hearing and without any showing of cause.

Unless withdrawn or terminated, the certification shall remain in effect

for 18 months after it has been filed with the clerk or until the law

student has been admitted as a permanent member of the bar of this

court, whichever is earlier;

(4)

certify in writing to the clerk that he or she has read the Code of

Professional Conduct of the American Bar Association, the Rules of

Professional Conduct and the Standards of Professional Conduct

promulgated and adopted by the Supreme Court of Appeals of West

Virginia, and the Model Rules of Professional Conduct published by

the American Bar Association;

(5)

be introduced to the court by a permanent member of the bar of this

court; and

(6)

neither ask for nor receive any compensation or remuneration of any

kind for services from the party assisted, but this shall not prevent an

attorney, legal services program, law school, public defender agency,

the State of West Virginia, or the United States from paying

compensation to the law student, nor from making appropriate charges

for such services.

LR Civ P 83.4.

Withdrawal and/or Termination of Representation

An attorney may withdraw from a case in which he or she has appeared only as

follows:No attorney who has entered an appearance in any civil action shall withdraw

the appearance or have it stricken from the record, except by order.

(a)

(b)

(c)

By Notice of Withdrawal. A party’s attorney may withdraw from a case by

filing and serving a notice of withdrawal, effective upon filing, if:

(1)

multiple attorneys have appeared on behalf of the party; and

(2)

at least one of those attorneys will still be the party’s counsel of record

after the attorney seeking to withdraw does so.

By Notice of Withdrawal and Substitution. A party’s attorney may withdraw

from a case by filing and serving a notice of withdrawal and substitution,

effective upon filing, if the notice includes:

(1)

the withdrawal and substitution will not delay the trial or other progress

of the case; and

(2)

the notice is filed and served at least 90 days before trial.

By Motion. An attorney who seeks to withdraw other than under LR Civ P

83.4(a) or (b) must move to withdraw and must show good cause. The attorney

must notify his or her client of the motion.

LR Civ P 83.7.

Codes of Professional Conduct

In all appearances, actions and proceedings within the jurisdiction of this court,

attorneys shall conduct themselves in accordance with the Rules of Professional

Conduct and the Standards of Professional Conduct promulgated and adopted by the

Supreme Court of Appeals of West Virginia, and the Model Rules of Professional

Conduct published by the American Bar Association. Judicial officers of this court

must comply with the Code of Conduct for United States Judges adopted by the

Judicial Conference of the United States; judiciary employees of this court must

comply with the Code of Conduct for Judicial Employees, also adopted by the Judicial

Conference.

LR Civ P 83.15.

(a)

Courthouse Security

Entry of Federal Courthouse Buildings.

All persons wishing to enter a federal building housing a United States Court

within the Southern District of West Virginia (the building) must first properly

clear the security screening post located in the main lobby at each facility. Court

security officers staff the security screening post during normal business hours.

The purpose for the security screening post is to ensure that no weapons,

including guns, knives, explosives or other items that are deemed to be a

possible weapon, are brought into the building. Any person refusing to submit

to such inspection, including inspection of all carried items, shall be denied

entrance to the building.

(b)

Persons Requiring Access.

All persons, other than those who are stationed in the building, having business

in the building (i.e. contractors, work crews, repair persons) shall enter and leave

the court facilities through the designated screening posts. Persons needing to

use other entrances must make arrangements with court security prior to

bypassing the screening posts. Workers seeking to work after hours must obtain

prior approval from the appropriate officials. The court security officers are

charged with the enforcement of these regulations.

(c)

Weapons.

The United States Marshal and Deputy United States Marshals may possess and

oversee possession of firearms or other weapons in the building. Only members

of the United States Marshals Service and those specifically designated by that

service may possess firearms and other weapons in the space occupied and

controlled by this court.

(d)

Identification Card.

All employees will use an identification card issued by the employee=s agency.

Employees will be required to display or show the identification card to the

court security officers to pass through the security screening post. If an

employee fails to present their issued identification card, he or she must

successfully pass through the security screening post.

(e)

Wireless Communication Devices.

Only attorneys, court reporters and court interpreters conducting official

business at a federal courthouse in a federal courthouse in this District are

permitted limited use of wireless communication devices, such as cellular

telephones, pagers, personal data assistants (PDAs), BlackBerrys, and laptop

computers. Audio or video recording or the taking of any photographs with

such devices while in the courthouse is prohibited. Wireless communication

devices must be turned off or rendered silent Cellular telephones and pagers

must be programmed so they will not emit any audible noise while in a

courtroom. PDAs, BlackBerrys and laptop computers may be used to assist

attorneys in their cases. The use of wireless communication devices for

purposes of transmitting and/or receiving data while in a courtroom is

prohibited. The use of wireless communication devices shall not be disruptive

to court proceedings. Wireless communication devices are not permitted in a

grand jury room while the grand jury is in session unless utilized by an agent

or representative of the United Sates Attorney=s Office for evidence

presentation. Each judicial officer may modify this rule as circumstances

warrant.

Any other individual who brings a wireless communication device into a

federal courthouse in this District, excepting federal employees, elevator

response personnel and PBX telephone technicians, will be required by the

court security officers to deposit such device in storage facilities as provided at

the front entry of the building, to be retrieved upon leaving the courthouse.

Appropriate signage will be posted outside the courthouse and at the security

posts, published on the court=s external web site and in notices provided to

jurors.

The court authorizes the United States Marshal to allow wireless

communication devices for emergency situations as deemed appropriate.

ATTACHMENT 2

LOCAL RULES OF CRIMINAL PROCEDURE

(Select Revised Local Rules of Criminal Procedure)

LOCAL RULES OF CRIMINAL PROCEDURE

(Select Revised Local Rules of Criminal Procedure)

LR Cr P 5.1.

(a)

Initial Appearance

Pretrial Services Interview.

Pretrial services officers (or probation officers acting in the capacity of pretrial

services officers), to the extent practicable, shall attempt notification of counsel

prior to conducting pretrial services interviews. If counsel cannot attend an

interview, the information provided by the defendant shall be made available

to counsel upon request, in accordance with LR Cr P 5.1.(b).

(b)

Disclosure of Pretrial Services Information.

A written pretrial services report will, if possible, be provided to counsel in the

courtroom when a defendant makes an initial appearance, and will be provided

to counsel in the courtroom when a defendant appears for a detention hearing.

Pretrial services information is confidential, pursuant to the provisions of

18 U.S.C. § 3153(c) and regulations promulgated by the Administrative Office

of the United States Courts. Judicial officers may disclose pretrial services

information, in whole or in part, upon a showing of good cause. When a demand

for disclosure of pretrial services information regarding a defendant is made by

service of a subpoena or by other judicial formal process upon a probation

officer, the probation officer may petition in writing seeking instructions from

the court regarding a response to the subpoena demand for disclosure. Further,

the probation officer, upon request, is authorized to provide a copy of the

pretrial report to another federal pretrial or probation officer without further

order of the court.

(c)

Standard Terms and Conditions for Release on Bond.

(1)

The defendant shall not violate any local, state or federal laws;

(2)

The defendant shall not possess a firearm, destructive device or other

dangerous weapon (felony offense only), and shall reside in a residence

free from such items;

(3)

The defendant=s travel is restricted to the Southern District of West

Virginia unless otherwise permitted by the court;

(4)

The defendant shall submit to random urine screens, as directed by the

probation department or the court, for detection of use of controlled

substances; and

(5)

(d)

The defendant shall not contact, either directly or indirectly, any victim

or potential witnesses in the case, except through counsel (for

witness/victim protection where needed).

Modification of Conditions of Pretrial Release.

The pretrial services or probation officer may, in the exercise of his/her

discretion, meet with the defendant and defense counsel and modify conditions

of release. Following such meeting, if any, a Consent to Modify Conditions of

Release (PS 42) shall be completed and submitted to the judicial officer for

signature and filing.

LR Cr P 18.2.

Divisions

The Southern District of West Virginia is composed of 23 counties. Each of these

counties is assigned to 1 of 54 administrative divisions. Each division is given the name

of the city in the division where the court and offices of its clerk are located. The

divisions, addresses of division offices, and counties comprising each division are as

follows:

Division 1: Bluefield

Elizabeth Kee Federal Building

Address: Room 2303, 601 Federal Street, Bluefield, West Virginia 24701

Counties Composing Division: Mercer, Monroe and McDowell

Division 2: Charleston

Robert C. Byrd United States Courthouse

Address: Room 2400, 300 Virginia Street East, Charleston, WV 25301

Mailing address: P.O. Box 2546, Charleston, West Virginia 25329

Counties Composing Division: Boone, Clay, Fayette, Jackson, Kanawha, Lincoln,

Logan, Mingo, Nicholas, Roane, Wirt and Wood

Division 3: Huntington

Sidney L. Christie Federal Building

Address: Room 101, 845 Fifth Avenue, Huntington, West Virginia 25701

Counties Composing Division: Cabell, Mason, Putnam and Wayne

Division: 5: Beckley

Robert C. Byrd Federal Building and Courthouse

Address: Room 119, 110 North Heber Street, Beckley, West Virginia 25801

Counties Composing Division: Greenbrier, Summers, Raleigh and Wyoming

The court will occasionally convene at Parkersburg to deal with matters falling in the

Huntington or Charleston Divisions, as needed, and at Lewisburg to deal with matters

falling within either the Beckley or Bluefield Division, as needed.

LR Cr P 24.1.

Confidentiality of Juror Information

(a)

All information obtained from juror questionnaires is confidential and may be

used only for jury selection and in accordance with this rule.

(b)

All copies of juror questionnaires must be destroyed or returned to the Court

upon completion of the trial, or at any earlier time determined by the Court.

(c)

For represented parties, counsel of record is responsible for maintaining the

confidentiality and security of juror questionnaires, and must apply security

practices no less stringent than those applicable to confidential client

information. Unrepresented parties may use juror questionnaires only under

supervision of the Court, and may not reproduce the juror questionnaires in any

form, or distribute them to anyone.

(d)

Juror questionnaires will be electronically filed under restricted access to only

counsel and court personnel in the Case Management/Electronic Case Filing

(CM/ECF) system five (5) business days before trial or as otherwise directed

by the Court. Electronic access will be available to the Court and counsel of

record only. The Court will provide unrepresented parties with one paper copy

of the juror questionnaires at the beginning of jury selection. Juror

questionnaires will not be available via mail or facsimile transmission.

LR Cr P 32.2.

(a)

Disclosure of Presentence Reports, Statement of Reasons and

Probation Records

Disclosure of Presentence Reports.

Disclosure of presentence reports is governed by 18 U.S.C. § 3552(d) and

FR Cr P 32. Except as specifically provided by statute, rule, regulation, or

guideline promulgated by the Administrative Office of the United States

Courts, or LR Cr P 32.3, no confidential records of the court maintained by the

probation office, including presentence reports and probation or supervised

release records, shall be producible except as set forth below or by written

petition to the court, particularizing the need for specific information. When a

demand for disclosure of presentence and probation records is made by way of

subpoena or other judicial formal process to a probation officer, the probation

officer may petition in writing seeking instructions from the court regarding a

response to the subpoena demand for disclosure. No disclosure shall be made

except upon order of the court.

Presentence reports prepared by the probation office, as well as objections to

the report filed by counsel, shall be filed electronically under seal via the Case

Management/Electronic Case Filing System (CM/ECF). These documents will

be made part of the case record for the purposes of appeal. The probation officer

is authorized to provide a copy of the presentence report, without the officer=s

recommendation as to the sentence, to the defendant=s appellate counsel. In

addition, the probation officer is authorized to forward a copy of the

presentence report, without the officer=s recommendation as to the sentence, to

counsel in revocation proceedings upon request without further order of the

court. The copy of the presentence report shall be used by counsel for the

purpose of the revocation proceeding only. Further, the probation officer, upon

request, is authorized to provide a copy of the presentence report to another

federal probation officer without further order of the court.

(b)

Disclosure of Special Conditions Within Presentence Reports.

When the presentence report is disclosed to the parties and the court, the

probation office should include any recommended special conditions in the

body of the report, as well as the reasons for the recommendation of each

condition. However, LR Cr P 32.2(a) allows the court to limit such disclosure

through an order of the court.

(b)(c) Statement of Reasons.

The Clerk is directed to SEAL the Statement of Reasons in all criminal cases

before this court and shall forward a SEALED copy to counsel of record and to

the probation office in this District. The probation office shall forward the

Statement of Reasons to the United States Sentencing Commission and the

Bureau of Prisons. The probation office is further directed to make the sealed

Statement of Reasons an attachment to, and part of, any copy of the presentence

report made available to the Bureau of Prisons, the Fourth Circuit Court of

Appeals and appellate counsel for the defendant. In addition, the probation

office is authorized to forward a copy of the Statement of Reasons to counsel

in revocation proceedings upon request and without further order of the court.

The copy of the Statement of Reasons shall be used by counsel for the purpose

of the revocation proceeding only.

(c)(d) Disclosure of Probation Office Recommendation.

The probation officer shall not disclose to anyone other than the court the

officer=s recommendation as to the sentence.

LR Cr P 32.3.

Standard Conditions of Probation and Supervised Release in all

Criminal Cases

In addition to the Standard Conditions of Supervised Release and Probation

promulgated by the Administrative Office of the United States Courts (National

Form AO 245B), the following six conditions are forthwith adopted as standard

conditions of probation and supervised release for all defendants sentenced in

criminal cases in the District.

LR Cr P 32.4.

(1)

If the offender is unemployed, the probation officer may direct the

offender to register and remain active with Workforce West Virginia.

(2)

Offenders shall submit to random urinalysis or any drug screening

method whenever the same is deemed appropriate by the probation

officer and shall participate in a substance abuse program as directed by

the probation officer. Offenders shall not use any method or device to

evade a drug screen.

(3)

As directed by the probation officer, the defendant will make copayments for drug testing and drug treatment services at rates

determined by the probation officer in accordance with a courtapproved schedule based on ability to pay and availability of third-party

payments.

(4)

A term of community service is imposed on every offender on

supervised release or probation. Fifty hours of community service is

imposed on every offender for each year the offender is on supervised

release or probation. The obligation for community service is waived if

the offender remains fully employed or actively seeks such employment

throughout the year.

(5)

The defendant shall not possess a firearm, ammunition, destructive

device, or any other dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose of causing bodily

injury or death to another person such as nunchakus or tasers), and shall

reside in a residence free from such items.

(6)

The defendant shall not purchase, possess, or consume any organic or

synthetic intoxicants, including bath salts, synthetic cannabinoids, or

other designer stimulants.

Standard and Optional Conditions of Probation and Supervised

Release in all Sex Offense Cases

The following standard and optional conditions of probation or supervised release shall

be included in the Judgment as appropriate in all cases where the offense of conviction,

or a defendant=s prior state or federal conviction, would qualify as a Asex offense@ as

defined in the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.

§ 16911(5) or otherwise result in a reporting obligation by the defendant to any state

or federal sex offender registry. Within those conditions requiring an offender to obtain

approval by the probation officer for certain actions, the court retains the ultimate

authority to grant the approval requested, along with the right to review the probation

officer=s decision upon the offender=s written request.

(a)

Standard Conditions.

(1)

The defendant shall have no direct or indirect contact, at any time, for

any reason, with the victim(s) identified in the presentence report or the

victim’s family.

(2)

The defendant shall submit to an evaluation by a qualified mental health

professional, approved by the probation officer, who is experienced in

treatment of sexual offenders. The defendant shall take all medications

reasonably related to treatment of his or her condition, complete all

treatment recommendations and abide by all rules, requirements and

conditions imposed by the professional. The defendant must do so until

discharged from treatment by the professional. Prior to being required

to submit any proposed course of treatment, the defendant or the United

States may seek review by the presiding district judge of any facet of

the prescribed course of treatment. The United States and the defendant

shall also have the right to seek review by the presiding district judge

of any continuation or discontinuation of such treatment.

(3)

The defendant shall submit to risk assessments, psychological and

physiological testing, which may include, but is not limited to, a

polygraph examination or other specific tests to monitor the defendant’s

compliance with probation or supervised release treatment conditions,

at the direction of the probation officer.

(4)

The defendant’s residence and employment shall be approved by the

probation officer. Any proposed change in residence or employment

must be provided to the probation officer at least 10 days 1 prior to the

change and pre-approved before the change may take place.

(5)

The defendant shall not access or possess any materials depicting and/or

describing “child pornography” depicting sexually explicit conduct as

defined in 18 U.S.C. § 2256(2)(A), including any photograph, film,

video, picture, or computer or computer generated image or picture, nor

shall the defendant knowingly enter, or knowingly remain in, any

location, without the prior approval of the probation officer, where such

materials can be accessed, obtained or viewed, including pictures,

photographs, books, writings, drawings, videos or video games. [The

Pursuant to WV Code § 55-12-3

rationale for amending this condition broadens the condition to include

any sexually explicit material and not just possession of child

pornography, which is already a prohibited crime. A sex offender who

continues to have exposure to any pornography is continuing to engage

in “fantasy sex,” which may lead to high-risk behavior. He or she would

also not be addressing his or her intimacy deficits appropriately.

Intimacy deficits are a well-researched risk factor for sexual

recidivism.]

(6)

The defendant shall not use, purchase, possess, procure or otherwise

obtain any computer or electronic device that can be linked to any

computer networks, bulletin boards, Iinternet, Iinternet service

providers or exchange formats involving computers unless approved by

the probation officer for such purposes as looking for employment

opportunities and submitting applications to prospective employers

through the internet; defendant’s lawful gainful employment by a

business entity; or use by an immediate family member living in

defendant’s same household or for other legitimate purposes. Such

computers, computer hardware or software possessed solely by the

defendant is subject to searches and/or seizures by the probation office.

(7)

The defendant shall comply with the requirements of the Sex Offender

Registration and Notification Act (42 U.S.C. § 16901, et seq.) and/or

with any local and/or State Sex Offender Registration agency in any

state or federal territory where the defendant resides, is employed,

carries on a vocation, or is a student, or was convicted of a qualifying

offense, pursuant to state law.

(8)

The defendant shall provide the probation officer access to any

requested financial records and authorize the release of any financial

information.

(9)

The defendant shall not purchase, possess, or consume alcohol, and the

defendant shall not frequent any businesses whose primary function is

to serve alcohol beverages. [Substance abuse is considered to be an

acute risk factor for sex offenders. Drug and alcohol use have long been

considered a “disinhibitor,” and problems with drugs or alcohol are

generally regarded as elevating an individual’s risk for sexual

recidivism. The sex offender, more than any other type of criminal on

supervision, needs to be alert, in control, and ready to execute avoidance

and escape plans whenever he or she encounters a high-risk situation.]

(b)

Optional Conditions.

(1)

The term “minor” with respect to any condition of supervised release

refers to one who is under the age of eighteen (18) years.

(2)

The defendant shall not associate or have verbal, written, telephonic or

electronic communications with any minor except: 1) in the presence of

the parent or legal guardian of said minor; 2) on the condition that the

defendant notifies the parent or legal guardian of the defendant’s sex

offender conviction(s); and 3) with written approval from the probation

officer. This provision does not encompass minors working as waiters,

cashiers, ticket vendors, and similar service personnel with whom the

defendant must deal in order to obtain ordinary and usual commercial

services.

(3)

The defendant shall not loiter within 100 feet of any parks, school

property, playgrounds, arcades, amusement parks, daycare centers,

swimming pools, community recreation fields, zoos, youth centers,

video arcades, carnivals, circuses or other places that are primarily used

or can reasonably be expected to be used by minors without prior

written permission of the probation officer.

(4)

The defendant shall not frequent any businesses whose primary

function is to serve alcoholic beverages.

(5)(4) The defendant shall not purchase, possess or control cameras,

camcorders, or movie cameras without prior approval of the probation

officer. and The defendant may only use and possess cell phones that

are limited by design to vocal telephone communication without the

capability to access the Iinternet or store or create images or video

without prior approval of the probation officer.

(6)(5) The defendant shall notify employers, family, friends and others with

whom the defendant has regular contact of defendant’s conviction(s) as

a sex offender and that the defendant is being supervised by a probation

officer.

(7)(6) The defendant shall not engage in any forms of exhibitionism,

voyeurism, obscene phone calls or other lewd or lascivious behavior

toward a minor, nor engage in “grooming” behavior that is apt to attract,

seduce or reduce sexual resistance or inhibitions of a minor.

(8)(7) The defendant shall not own, use or have access to the services of any

commercial mail receiving agency or storage unit nor shall the

defendant open or maintain a post office box or storage unit without the

prior approval of the probation officer. The defendant shall provide the

probation officer with a list of all P.O. boxes and/or storage units the

defendant can access.

(9)(8) The defendant shall not possess sadomasochistic or similar bindings or

handcuffs, or like forms of restraint.

(10)(9) The defendant shall not possess minor’s clothing, toys, games, or the

like without permission of the probation officer.

(11)(10) The defendant shall not be employed in any position or participate as a

volunteer in any activity that involves contact with minors without

written permission from the probation officer. The defendant may not

engage in an activity that involves being in a position of trust or

authority over any minor.

(12)(11) The defendant shall participate in the District’s computer and internet

monitoring program and pay any costs associated therewith and abide

by all special conditions therein, as directed by the probation officer.

Participation in this program is contingent upon all program criteria

being met.

(13)(12) The defendant shall not possess pictures of minors, unless the pictures

are of the defendant’s children.

LR Cr P 32.1.1.

(a)

Modification or Revocation of Probation or Supervised Release

Petition for Modification or Revocation.

(1)

A petition for modification or revocation of probation or supervised

release shall be set forth on the form adopted for that purpose by the

Administrative Office of the United States. The petition shall be

presented to the sentencing judge. The sentencing judge shall determine

whether the petition shall be filed.

(2)

The petition shall set forth the facts allegedly constituting the violation

of probation or supervised release. The petition shall also seek either a

summons or an arrest warrant, modification of the terms of release, or

no action.

(3)

A petition ordered filed shall be served upon the probationer or releasee,

the attorney for the government, and last known counsel of record

except that in all cases in which prior counsel was appointed pursuant

to the Criminal Justice Act, the Office of the Federal Public Defender

shall be served in lieu of service upon prior counsel. Unless When the

court orders an arrest warrant to be issued, the petition shall be served

upon the probationer or releasee after arrest, but in no event later than

the initial appearance.

(b)

Disclosure of Evidence.

The probation officer shall, without further request by the probationer, or

releasee, or his/her counsel, disclose to the probationer or releasee or his/her

counsel, all evidence against the probationer or releasee regarding the

violations contained in the petition, including any potential oral statement and

any potentially exculpatory material. Any information disclosed by the

probation officer to an attorney for the government shall be promptly disclosed

by the probation officer to probationer or releasee or to his/her counsel.

(c)

Recommendation for Revocation of Probation or Supervised Release.

If after a hearing the defendant is found to have violated the terms of probation

or supervised release, the probation officer may make a recommendation to the

court. The reasons supporting the recommendation shall be disclosed to the

parties if such reasons are evidence against the probationer or releasee, as shall

any response by the probation officer to recommendations by counsel.

(d)

Request for Modification of the Terms of Probation or Supervised Release.

No terms of probation or supervised release shall be modified upon a waiver of

counsel by the probationer or releasee unless and until the probationer or

releasee shall have consulted with counsel regarding the advisability of waiving

counsel. Any such waiver of counsel must certify that the probationer or

releasee consulted with counsel prior to executing such waiver. In the

alternative, waiver of counsel may be made by the probationer or releasee

before a magistrate judge.

LR Cr P 44.1.

Admission of Attorneys

(a)

Admission as Member of Bar or Court.

Any person who is admitted to practice before the Supreme Court of Appeals

of West Virginia and who is in good standing as a member of its bar is eligible