# UNITED ST ATES DISTRICT COURT (2017)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/federal_court_rules%3Awvsd%3A3b5245172d66c4a9

## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

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:

s ~
l,(;VU

( 2,,0 I

"J

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

2

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.

1

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
2

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
3

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.

4

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,
5

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.
6

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

7

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

(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
9

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.

10

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
11

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.

12

(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;
13

(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
14

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.
15

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.

16

(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.
17

(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
18

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.

19

(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.

20

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.
21

(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
22

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
23

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.

24

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
1

(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

2

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.

3

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

4

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.
5

§ 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

1

Pursuant to WV Code § 55-12-3

6

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
register as directed by the probation officer. The defendant shall register
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.]

7

(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
8

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
9

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
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.
10

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 Cr P 44.2.
(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
11

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;

12

(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 Cr P 44.4.

Withdrawal and/or Termination of Representation

No attorney who has entered an appearance in any criminal action shall withdraw the
appearance or have it stricken from the record, except by order. A defense attorney in
any criminal case shall continue the representation until relieved by order of this
court or the Court of Appeals. A motion to withdraw shall be accompanied by a
notice of appearance of substitute counsel. In the absence of the appearance of
substitute counsel, a motion to withdraw shall set forth sufficient information to
enable the court to rule.
LR Cr P 44.7.

Code 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 Cr P 46.1. Release from Custody
(a)

General Requirements. Every bond must be executed by the defendant and
principal obligor or one or more qualified sureties, if applicable, 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.

13

(2)

(c)

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.

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 Civ P 67.1. Withdrawal
of cash bonds is governed by LR Civ P 67.2.

(f)

Personal Recognizance Bond. On a personal recognizance bond, the defendant
promises to comply with all conditions imposed by the court. A defendant that
fails to comply with a condition or fails to appear will be subject to penalties as
authorized by statute.

(g)

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

14

(h)
LR Cr P 49.2.

All bonds must receive court approval.
Filing by Facsimile or Electronic Means

(a)

The clerk=s office will not accept any facsimile transmission for filing unless
ordered by the court.

(b)

Pursuant to FR Cr P 49(d), 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, established by the Judicial Conference of the United
States. 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 Criminal Procedure. All electronic filings shall be
governed by the court=s Administrative Procedures for Filing, Signing, and
Verifying Pleadings and Papers by Electronic Means for Criminal Cases, the
provisions of which are incorporated by reference, and which may be amended
from time to time by the court.

(c)

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.

(d)

Service of Documents through the Court’s Electronic Transmission Facilities:
A party may serve a paper under FR Cr P 49(b) 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 must be electronically filed with the Court when a document is served
by other than electronic means.

LR Cr P 57.1.
(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
15

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, probation officers, 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 while in a
courtroom. 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
16

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.

17

ATTACHMENT 3
Local Rules of Procedure
Amended June 8, 2017

UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA

LOCAL RULES OF PROCEDURE
effective December 1, 2009
amended February 1, 2011
amended June 30, 2011
amended November 18, 2013
amended June 8, 2017

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA

UNITED STATES DISTRICT JUDGES
Robert C. Chambers, Chief Judge, Huntington, West Virginia
John T. Copenhaver, Jr., Judge, Charleston, West Virginia
Joseph R. Goodwin, Judge, Charleston, West Virginia
Thomas E. Johnston, Judge, Charleston, West Virginia
Irene C. Berger, Judge, Beckley, West Virginia

UNITED STATES SENIOR DISTRICT JUDGES
David A. Faber, Senior Judge, Bluefield, West Virginia

UNITED STATES MAGISTRATE JUDGES
Omar J. Aboulhosn, Beckley and Bluefield, West Virginia
Cheryl A. Eifert, Huntington, West Virginia
Dwane L. Tinsley, Charleston, West Virginia

CLERK OF U. S. DISTRICT COURT
Teresa L. Deppner, Charleston, West Virginia

TABLE OF CONTENTS
The numbering of local rules must conform to the uniform numbering system
established by the Judicial Conference. At its March 1996 session, the Judicial
Conference adopted a resolution prescribing a numbering system for local
rules that corresponds with the numbers used in the relevant Federal Rules of
Practice and Procedures. These local rules conform to that numbering system.
I. LOCAL RULES OF CIVIL PROCEDURE.................................................................... 1
LR Civ P 3.1.

Assignment of Cases ............................................................................. 1

LR Civ P 3.2.

Reassignment, Referral and Intra-District Transfer of Cases ............... 1

LR Civ P 3.3.

Assignment of Urgent Cases or Matters ............................................... 1

LR Civ P 3.4.

Local Filing Requirements .................................................................... 1
(a)

Civil Docket Cover Sheet. .........................................................1

(b)

State Court Docket Sheet. ..........................................................1

LR Civ P 3.5.

Proceedings without Prepayment of Fees and Costs ............................ 2

LR Civ P 4.1.

Waiver of Service ................................................................................. 2

LR Civ P 4.1.1.

Initiation of Civil Contempt Proceedings ............................................. 2

LR Civ P 4.1.2.

Issues; Trial by Jury .............................................................................. 3

LR Civ P 4.1.3.

Order of the Court; Confinement of Contemnor................................... 3

LR Civ P 5.1.

Filing Pleadings and Other Papers ........................................................ 4

LR Civ P 5.2.1.

(a)

Filing of Papers. .........................................................................4

(b)

Filing by Facsimile Transmission. .............................................4

(c)

Filing by Electronic Means. .......................................................4

Privacy Protection for Filings Made with the Court ............................. 5
(a)

Documents. ................................................................................5

(b)

Transcripts of Hearings. .............................................................6

LR Civ P 6.1.

Definitions............................................................................................. 6

LR Civ P 7.1.

Motion Practice ..................................................................................... 6
(a)

Motions and Supporting Memoranda. .......................................6
(1)

General. ......................................................................... 6

(2)

Length ........................................................................... 6

(3)

Paper Size, Line Spacing and Margins. ........................ 7

(4)

Typeface and Type Styles. ............................................ 7
i

LR Civ P 9.1.

(5)

Courtesy Copies of Memoranda. .................................. 7

(6)

Motions to Dismiss ....................................................... 7

(7)

Filing Deadlines for Response and Reply Memoranda 7

(8)

Referral to Magistrate Judge ......................................... 7

(9)

Courtroom Technology ................................................. 8

Scope and Assignment .......................................................................... 8
(a)

Scope. .........................................................................................8

(b)

Appeals of Social Security Claims. ...........................................8

LR Civ P 9.2.

Initiation of Action - Complaint ........................................................... 8

LR Civ P 9.3.

Commissioner=s Response .................................................................... 9

LR Civ P 9.4.

LR Civ P 9.5.

(a)

Filing and Service. .....................................................................9

(b)

Privacy. ......................................................................................9

(c)

Form. ........................................................................................10

(d)

Discovery. ................................................................................10

(e)

Material Defect in Administrative Transcript. .........................10

Briefs ................................................................................................... 10
(a)

Time for Filing and Service. ....................................................10

(b)

Form of Briefs. .........................................................................10

Motions to Dismiss or Remand .......................................................... 11
(a)

Time for Filing by Commissioner............................................11

(b)

Time for Filing by Plaintiff. .....................................................11

(c)

Briefs. .......................................................................................11

LR Civ P 9.6.

Petition or Motion for Attorney=s Fees ............................................... 11

LR Civ P 9.7.

Electronic Filing.................................................................................. 11

LR Civ P 9.8.

Oral Argument .................................................................................... 12

LR Civ P 9.9.

Other Local Rules in Conflict ............................................................. 12

LR Civ P 11.1.

Verification of Pleadings .................................................................... 12

LR Civ P 11.2.

Stipulations ......................................................................................... 12

LR Civ P 12.1.

Extensions of Answer Date ................................................................. 12

LR Civ P 16.1.

Scheduling Conferences...................................................................... 12
(a)

Order and Notice. .....................................................................12

(b)

Obligation of the Parties to Meet. ............................................13
ii

LR Civ P 16.2.

(c)

Written Report on the Meeting of the Parties; Cancellation of
Scheduling Conference. ...........................................................13

(d)

Conduct of Scheduling Conferences. .......................................14

(e)

Scheduling Orders. ...................................................................15

(f)

Modification of Scheduling Order. ..........................................15

(g)

Categories of Actions Exempted. ............................................16

Case-Management Conferences in Complex Cases ........................... 17
(a)

Conduct of Case-Management Conferences. ...........................17

(b)

Obligation of Counsel to Confer. .............................................17

(c)

Number of Case-Management Conferences and Conference
Orders. ......................................................................................18

LR Civ P 16.3.

Pretrial Conferences in Non-Complex Cases ..................................... 18

LR Civ P 16.4.

Authority Regarding Settlement, Stipulations and Admissions at
Conferences......................................................................................... 18

LR Civ P 16.5.

Sanctions ............................................................................................. 18

LR Civ P 16.6.

Mediation ............................................................................................ 18
(a)

Cases to be Mediated. ..............................................................18

(b)

Motion for Exception to Mandatory Mediation. ......................19

LR Civ P 16.6.1. Timing of Mediation ........................................................................... 19
LR Civ P 16.6.2. Selection of Mediator; Notice of Nomination .................................... 19
LR Civ P 16.6.3. Appointment of Mediator ................................................................... 19
LR Civ P 16.6.4. Attendance at Mediation ..................................................................... 19
LR Civ P 16.6.5. Mediation Statements; Confidentiality ............................................... 19
LR Civ P 16.6.6. Impartiality of Mediator ...................................................................... 20
LR Civ P 16.6.7. Compensation of Mediator ................................................................. 20
LR Civ P 16.6.8. Notification to Judicial Officer; Report of Mediator .......................... 20
LR Civ P 16.7.

Final Pretrial and Settlement Conferences; Pretrial Order ................. 20
(a)

Obligation of Counsel to Meet; Pretrial Disclosures Under
FR Civ P 26(a)(3).....................................................................20

(b)

Proposed Pretrial Order............................................................21

(c)

Final Pretrial Conference. ........................................................22

(d)

Final Pretrial Order. .................................................................22

(e)

Final Settlement Conference. ...................................................22
iii

(f)
LR Civ P 26.1.

LR Civ P 26.2.

LR Civ P 26.3.

LR Civ P 26.4.

LR Civ P 33.1.

LR Civ P 34.1.

LR Civ P 36.1.

LR Civ P 37.1.

Settlement Before Trial. ...........................................................22

Control of Discovery........................................................................... 23
(a)

Initial Disclosures Under FR Civ P 26(a)(1). ..........................23

(b)

Disclosures Under FR Civ P 26(a)(2) Regarding Experts. ......23

(c)

Further Discovery. ...................................................................23

Uniform Definitions in Discovery Requests ....................................... 24
(a)

Incorporation by Reference and Limitations. ..........................24

(b)

Effect on Scope of Discovery. .................................................24

(c)

Definitions................................................................................24

Court Filings and Costs ....................................................................... 25
(a)

Non-Filing of Discovery Materials Other than Certificates of
Service......................................................................................25

(b)

Inspection of Documents and Copying Expense. ....................25

Clawback Orders, Protective Orders, and Sealed Documents ............ 26
(b)

Protective Orders. ....................................................................26

(c)

Sealed Documents. ...................................................................26

Interrogatories ..................................................................................... 28
(a)

Form of Response. ...................................................................28

(b)

Reference to Records. ..............................................................28

(c)

Answers to Interrogatories Following Objections. ..................29

Document Production ......................................................................... 29
(a)

Form of Response. ...................................................................29

(b)

Objections to Document Requests. ..........................................29

(c)

Answers to Document Requests Following Objections...........29

Admissions.......................................................................................... 29
(a)

Form of Response. ...................................................................29

(b)

Statements in Response to Requests for Admission Following
Objections. ...............................................................................29

Discovery Disputes ............................................................................. 30
(a)

Objections to Disclosures or Discovery. ..................................30

(b)

Duty to Confer. ........................................................................30

(c)

Motions to Compel. .................................................................30

(d)

Telephonic Conferences During Discovery Events. ................30
iv

LR Civ P 41.1.

Dismissal of Actions ........................................................................... 31

LR Civ P 43.1.

Addressing the Court; Examination of Witnesses .............................. 31

LR Civ P 47.1.

Trial Juries .......................................................................................... 31
(a)

Examination of Prospective Jurors. .........................................31

(b)

Jury Lists. .................................................................................31

LR Civ P 48.1.

Contact with Jurors ............................................................................. 32

LR Civ P 51.1.

Cases to be Tried by Jury; Proposed Jury Instructions ....................... 32

LR Civ P 52.1.

Cases to be Tried by the Court; Proposed Findings of Fact and
Conclusions of Law ............................................................................ 32

LR Civ P 54.1.

Fees and Costs..................................................................................... 32

LR Civ P 58.1.

Entry of Judgments and Orders........................................................... 33

LR Civ P 65.1.1. Approval of Bonds .............................................................................. 33
LR Civ P 67.1.

Deposits Pursuant to FR Civ P 67....................................................... 34

LR Civ P 71.1.

Land Condemnation Actions; Manner of Filing, Docketing,
Recording, and Reporting ................................................................... 35

LR Civ P 72.1.

Authority of Magistrate Judges ........................................................... 35
(a)

General. ....................................................................................35

(b)

Statutory Duties. ......................................................................36

(c)

Habeas Corpus and Collateral Relief. ......................................36

(d)

Post-Conviction Habeas Corpus and Related Actions. ............36

(e)

Miscellaneous Duties. ..............................................................37

(f)

Method of Assignment of Matters to Magistrate Judges. ........38

LR Civ P 72.2.

Effect of Magistrate Judge Ruling Pending Objection ....................... 38

LR Civ P 73.1.

Special Designation of Magistrate Judges .......................................... 38
(a)

Consent of the Parties. .............................................................38

(b)

Notice of Consent Option. .......................................................38

(c)

Execution of Consent. ..............................................................39

(d)

Vacating a Reference. ..............................................................39

LR Civ P 77.1.

Principal Offices ................................................................................. 39

LR Civ P 77.2.

Divisions ............................................................................................. 39

LR Civ P 77.3.

Sessions ............................................................................................... 40

LR Civ P 77.4.

Court Library ...................................................................................... 40

LR Civ P 78.1.

Hearing on Motions ............................................................................ 41
v

LR Civ P 79.1.

Custody and Disposition of Exhibits .................................................. 41
(a)

During Trial or Hearing. ..........................................................41

(b)

After Trial or Hearing. .............................................................41

(c)

Alternative Procedures for Custody and Disposition of
Exhibits. ...................................................................................42

LR Civ P 79.2.

Removal of Papers from Custody of Clerk ......................................... 42

LR Civ P 83.1.

Admission of Attorneys ...................................................................... 43

LR Civ P 83.2.

(a)

Admission as Member of Bar or Court. ...................................43

(b)

Sponsorship of Visiting Attorneys by Members of Court. ......43

(c)

Appearance by Assistant United States Attorneys and
Assistant Federal Public Defenders. ........................................43

(d)

Appearance by Federal Government Attorneys. ......................43

Legal Assistance by Law Students ..................................................... 44
(a)

Written Consent. ......................................................................44

(b)

Responsibilities of Attorneys of Record. .................................44

(c)

Eligibility Requirements. .........................................................44

LR Civ P 83.3.

Representation of Parties .................................................................... 45

LR Civ P 83.4.

Withdrawal and/or Termination of Representation ............................ 45

LR Civ P 83.5.

Pro se Appearances............................................................................. 46

LR Civ P 83.6.

Admission of Visiting Attorneys ........................................................ 46
(a)

Procedure for Admission. ........................................................46

(b)

Motion Not Required. ..............................................................47

(c)

Payment of Visiting Attorney Fee. ..........................................47

(d)

Exceptions to Payment of Visiting Attorney Fee. ...................47

(e)

Waiver of Payment of Visiting Attorney Fee. .........................48

(f)

Revocation of Visiting Attorney Privilege. .............................48

LR Civ P 83.7.

Codes of Professional Conduct ........................................................... 48

LR Civ P 83.8.

Bias and Prejudice............................................................................... 48

LR Civ P 83.9.

Opening Statements and Closing Arguments to Jury ......................... 49
(a)

Opening Statements. ................................................................49

(b)

Closing Arguments. .................................................................49

LR Civ P 83.10. Photography in and Broadcasting from the Courtroom ...................... 50
LR Civ P 83.11. Impoundment of Photography and Broadcasting Equipment ............. 50
vi

LR Civ P 83.12. Scheduling Conflicts ........................................................................... 50
LR Civ P 83.13. Referral of Cases to Bankruptcy Court ............................................... 50
LR Civ P 83.14. Appeal of a Bankruptcy Court Judgment, Order, or Decree to the
District Court ...................................................................................... 50
LR Civ P 83.15. Courthouse Security ............................................................................ 51
(a)

Entry of Federal Courthouse Buildings. ..................................51

(b)

Persons Requiring Access. .......................................................51

(c)

Weapons. ..................................................................................51

(d)

Identification Card. ..................................................................51

(e)

Wireless Communication Devices. ..........................................52

II. LOCAL RULES OF CRIMINAL PROCEDURE ....................................................... 53
LR Cr P 5.1.

Initial Appearance ............................................................................... 53
(a)

Pretrial Services Interview. ......................................................53

(b)

Disclosure of Pretrial Services Information. ............................53

(c)

Standard Terms and Conditions for Release on Bond. ............53

(d)

Modification of Conditions of Pretrial Release. ......................54

LR Cr P 7.1.

Assignment of Cases ........................................................................... 54

LR Cr P 7.2.

Reassignment, Referral and Intra-District Transfer of Cases ............. 54

LR Cr P 10.1.

Arraignment and Plea ......................................................................... 54

LR Cr P 12.1.

LR Cr P 16.1.

(a)

Notice of Date and Time. .........................................................54

(b)

Notice of Motion to Dismiss. ...................................................55

(c)

No Further Notice. ...................................................................55

Pretrial Motions .................................................................................. 55
(a)

Date for Filing Pretrial Motions in Lieu of Standard Request
for Discovery. ..........................................................................55

(b)

Date for Filing Pretrial Motions in Addition to Standard
Request for Discovery..............................................................55

(c)

Time for Response to Pretrial Motions. ...................................55

(d)

Pretrial Hearing. .......................................................................55

(e)

Courtroom Technology. ...........................................................55

Arraignment and Standard Discovery Requests ................................. 56
(a)

Standard Discovery Request Form. .........................................56

(b)

Reciprocal Discovery. ..............................................................56
vii

(c)

Time for Government Response. .............................................56

(d)

Time for Reciprocal Discovery Response. ..............................56

(e)

Defense Discovery Request Deemed Speedy Trial Motion. ...56

(f)

Duty to Supplement. ................................................................56

LR Cr P 18.1.

Principal Offices ................................................................................. 57

LR Cr P 18.2.

Divisions ............................................................................................. 57

LR Cr P 23.1.

Opening Statements in Criminal Trials............................................... 58

LR Cr P 24.1.

Confidentiality of Juror Information ................................................... 58

LR Cr P 26.1.

Addressing the Court; Examination of Witnesses .............................. 58

LR Cr P 30.1.

Jury Instructions .................................................................................. 59

LR Cr P 31.1.

Contact with Jurors ............................................................................. 59

LR Cr P 32.1.

Presentence Interview ......................................................................... 59

LR Cr P 32.2.

Disclosure of Presentence Reports, Statement of Reasons and
Probation Records ............................................................................... 59
(a)

Disclosure of Presentence Reports...........................................59

(b)

Disclosure of Special Conditions Within Presentence
Reports. ....................................................................................60

(c)

Statement of Reasons. ..............................................................60

(d)

Disclosure of Probation Office Recommendation. ..................60

LR Cr P 32.3.

Standard Conditions of Probation and Supervised Release in all
Criminal Cases .................................................................................... 61

LR Cr P 32.4.

Standard and Optional Conditions of Probation and Supervised
Release in all Sex Offense Cases ........................................................ 61

LR Cr P 32.1.1.

LR Cr P 44.1.

(a)

Standard Conditions. ................................................................62

(b)

Optional Conditions. ................................................................63

Modification or Revocation of Probation or Supervised Release ....... 65
(a)

Petition for Modification or Revocation. .................................65

(b)

Disclosure of Evidence. ...........................................................65

(c)

Recommendation for Revocation of Probation or Supervised
Release. ....................................................................................66

(d)

Request for Modification of the Terms of Probation or
Supervised Release. .................................................................66

Admission of Attorneys ...................................................................... 66
(a)

Admission as Member of Bar or Court. ...................................66
viii

LR Cr P 44.2.

(b)

Sponsorship of Visiting Attorneys by Members of Court. ......67

(c)

Appearance by Assistant United States Attorneys and
Assistant Federal Public Defenders. ........................................67

(d)

Appearance by Federal Government Attorneys. ......................67

Legal Assistance by Law Students ..................................................... 67
(a)

Written Consent. ......................................................................67

(b)

Responsibilities of Attorneys of Record. .................................68

(c)

Eligibility Requirements. .........................................................68

LR Cr P 44.3.

Representation of Parties .................................................................... 69

LR Cr P 44.4.

Withdrawal and/or Termination of Representation ...........................

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/federal_court_rules%3Awvsd%3A3b5245172d66c4a9. Public record. Not legal advice.