COMMllTEE ON RULES OF PRACTICE AND PROCEDURE 


OFTHE 


JUDICIAL CONFERENCE OF THE UNITED STATES 


WASHINGTON, D.C. 20544 


LEE H. ROSENTHAL CHAIRS OF ADVISORY COMMITTEES 

CHAIR 

JEFFREY S. SUTTON 

PETER G. McCABE APPELLATE RULES 

SECRETARY 

LAURATAYLOR SWAIN 

BANKRUPTCY RULES 

MARK R. KRAVITZ 

CIVIL RULES 

RICHARD C. TALLMAN 

CRIMINAL RULES 

Report and Recommended Guidelines on ROBERT L. HINKLE 

Standing Orders EVIDENCE RULES in District and Bankruptcy Courts 

I. Executive Summary 

For years, judges and lawyers have been concerned about the proliferation of 

"standing orders," "administrative orders," and "general orders" in the federal district courts. 

The term "standing orders" describes orders --including "administrative orders" or "general 

orders" -- adopted by district courts or bankruptcy courts as district-wide or division-wide 

orders, without an opportunity for notice or public comment. The term includes individualjudge orders that are intended to apply generally. Individual-judge standing orders are not 

the focus of this report but are included in the guidelines for posting orders so they can be 

easily located and accessed. 

The concerns raised by the proliferation ofstanding orders are similar to the concerns 

over local rules that led to congressional attention and launched earlier studies by the Judicial 

Conference. Like local rules, standing orders are meant to apply generally. Like local rules, 

standing orders can lead to a lack ofuniformity in federal practice, undermining consistency 

in areas where the national rules were meant to provide it and creating traps for the unwary 

and even for the wary. But standing orders can raise even more serious problems than local 

rules for several reasons. First, standing orders are promulgated without the benefit ofpublic 

comment. Second, standing orders are often harder to find and retrieve than local rules. 

Third, because standing orders may be entered by individual judges as well as by a division 

or district, there is significant variation even within the same district or division. Standing 

orders may raise these and other problems to such a degree as to risk invalidity and to invite 

congressional scrutiny. 
Report and Recommended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 2 

There is some case law guidance on the limits ofusing standing orders as opposed to 

local rules. But no national standards, and very few local standards, define what subjects are 

appropriately addressed by standing orders and what subjects are best addressed by local rule. 

The Standing Committee received requests from judges on circuit councils for guidance on 

delineating between standing orders and local rules. In response, the Committee asked for 

research on standing orders and asked the Administrative Office to survey the district courts 

to learn how they were actually using such orders. The Committee also surveyed chief 

district judges to learn what information and guidance might be most helpful. 

The research and survey into the use ofstanding orders in the district courts showed 

wide variance in the number of orders and topics addressed and in how lawyers and the 

public receive notice. The research produced some general criteria for delineating between 

when standing orders are appropriate and when local rules should be used. Standing orders 

are most appropriate to address matters that: 1) are of no direct concern to practicing 

attorneys or litigants; 2) require action for too short a time period to make the use ofa local 

rule practical; or 3) require prompt action to address an emergency. In general, three 

categories ofsubjects - internal administration, temporary problems, and emergencies ­

are the most appropriate for standing orders. Standing orders addressing matters outside 

these subjects are likely to be in tension with the interest of members of the public in 

commenting on matters that affect them and risk creating rules that are unnecessarily difficult 

or even unworkable. 

Standing orders are most problematic when they; 1) cover matters in which lawyers 

and litigants have a substantial interest but are issued without the notice and public comment 

that accompanies local rules; 2) modify or abrogate local rules; and, of course, 3) conflict 

with national or local rules. Efforts to modify or abrogate local rules should only be made 

through local rule, with notice and comment. The research showed that while the majority 

of courts use local rules, rather than standing orders, to regulate matters that directly affect 

the public, a small number of courts are using standing orders to address such matters. 

The research also showed a wide variation in how district- or division-wide and 

individual-judge standing orders are made available to the public. In many districts, standing 

orders are easily retrievable on the district court's web site. But in other districts, it is not 

easy to find standing orders. It is particularly difficult to search for a standing order on a 

specific topic. Many standing orders are not indexed and most are not searchable by subject 

or topic. 
Report and Recommended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 3 

Finally, the survey showed that courts would find it useful to have guidelines on 

delineating between matters appropriately addressed in standing orders and those that should 

be addressed in local rules and on the most effective and consistent way to post standing 

orders on court web sites. Specific guidelines have been developed as to when it is 

appropriate to use district-wide or division-wide standing orders and when local rules should 

be used. The guidelines also recommend a consistent approach to posting standing orders 

on the web sites ofthe district courts and in making such orders searchable. 

II. The Use of Standing Orders 

The Standing Committee became aware of the increasing use of standing orders 

through several avenues. The Standing Committee's Local Rules Project, which ended in 

2005, uncovered standing orders that addressed the same topics as local rules. The Standing 

Committee's work on the model rules for electronic filing, approved by the Judicial 

Conference in 2004, showed that although many districts were regulating electronic filing 

through local rules, other districts were using standing orders. Work by the Civil Rules 

Committee to monitor developments in electronic discovery after the December 2006 Civil 

Rules amendments indicated that in some districts, standing orders are being used for 

detailed electronic discovery "protocols," while in other districts, local rules address 

electronic discovery. 

The Administrative Office investigated the use of standing orders in eleven district 

courts. The research involved collecting and reviewing the standing orders in these districts, 

as well as receiving information directly from clerks and judges. Thereafter the 

Administrative Office sent a survey to chief judges in all district and bankruptcy courts 

asking for input in developing guidelines on what matters are appropriately addressed in local 

rules and those that should be addressed in standing orders. Responses were submitted by 

49 district courts and 37 bankruptcy courts. The results of this and related research are 

summarized below. 

1. Varying number o/standing orders among the districts 

The districts vary widely in their use ofstanding orders. Some districts have very few 

standing orders issued by the district or division. Others have standing orders in the 

hundreds. 
Report and Recommended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 4 

2. Varying subject matters treated by standing orders 

There is no standard approach to whether a particular subject matter is to be treated 

by standing order or local rule. For every district treating a matter by standing order, there 

are others treating the same matter by local rule. Examples of subjects that are addressed 

in local rules in some districts and standing orders in others include: 

• regulation of use of electronic devices in the courthouse; 

• procedure for filing documents under seal; 

• rules governing applications for attorneys' fees; 

• redaction ofpersonal identifiers to comply with the E-Government Act; I 

• attorney admissions matters; 

• rules governing electronic filing;2 

• rules on court appearances by legal interns or law students; and 

• rules governing ADR, settlement, or mediation. 

3. Subject matters most likely to be treated by standing orders 

While there is no uniformity in the use of standing orders, certain matters are more 

likely to be handled by standing orders rather than by local rules. These include rules on: 

• court security; 

• internal personnel matters such as appointments, EEO procedures, etc.; 

• referrals to magistrate judges; 

• case allocations between judges and/or divisions; 

I In one district reviewed, the standing order on redaction of personal identifiers 

"supersedes and vacates" the local rule on the subject, to the extent the local rule is 

inconsistent. This report recommends that standing orders not be used to vacate local rules. 

2 One concern with electronic filing rules is that technological developments may 

require constant amendment. This concern might lead a court to think about dispensing with 

the procedural requirements of local rulemaking in favor of using standing orders. As 

discussed in this memo, the better approach - used in several districts is to post a user 

manual on the court's web site that can be changed to accommodate technological 

developments and other electronic filing problems. 
Report and Recommended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 5 

• juror pools and selection; 

• use of nonappropriated funds; 

• Criminal Justice Act plans; 

• schedules for forfeiture of collateral; 

• conditions of probation and supervised release; 

• Speedy Trial Act implementation; 

• criteria for waiver of PACER fees; 

• court reporters and transcripts; 

• attorney admissions and discipline matters; and 

• naturalization ceremonies. 

4. Attempts by some districts to delineate the proper use ofstanding orders 

Some districts have, by local rule, defined the type of matters to be covered by 

standing orders. For example, Local Civil Rule 1.1 of the Northern District of Oklahoma 

states in part as follows: 

General Orders, which are available on the Court's web site, are issued by the 

Court to establish procedures on administrative matters and less routine 

matters which do not affect the majority of practitioners before this Court. 

As another example, Local Rule 83.1.2(a) ofthe District of Kansas provides that the 

court may issue "standing orders dealing with administrative concerns or with matters of 

temporary or local significance." Like Oklahoma's local rule, this rule identifies 

administrative matters as the most appropriate use ofstanding orders. But the Kansas local 

rule also allows standing orders on "matters oftemporary or local significance" and does not 

include "less routine matters which do not affect the majority of practitioners before the 

court" in the topics that standing orders should address. 

The Eastern District of California, in Local Rule 1-102( a), carefully distinguishes 

between the content of local rules and standing orders: 

Outside the scope of these Rules are matters relating to internal court 

administration that, in the discretion of the Court en banc, may be 

accomplished through the use of General Orders, provided, however, that no 
Report and Recommended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 6 

matter appropriate for inclusion in these Rules shall be treated by General 

Order. No litigant shall be bound by any General Order. 

The Eastern District ofCalifornia rule is the most limited ofthe three examples. Its approach 

restricts standing orders to matters such as funding, PACER fees, evacuation plans, case 

assignment, personnel appointments, and the like. This local rule specifically states that 

nothing in the court's standing orders may directly affect a litigant. 

5. Finding standing orders on a court's web site 

The AO reports that in the 11 districts reviewed, there was considerable variance in 

locating general or standing orders on the court's web site. A review of a number of other 

district web sites also found a widespread variance in the manner and web location for 

posting standing orders. Some districts have a link for "general orders" or "standing orders"; 

others do not. One district has a link entitled "local documents" that then has a sub-link to 

"administrative orders." Another district has a link entitled "rules." Another district locates 

standing orders under "general information" but a separate link to "rules" leads only to the 

local rules. 

Once the link to standing orders is found, the question is how to find a particular order 

or all orders that might be relevant to a case or topic. In many courts, it is not very difficult 

to review the standing orders for relevance. For example, in one district, there are five 

standing orders on the web site, and they are listed by topic: 

* 06-01 Extending Suspension of Some Requirements of Local Civil Rules 

10.I(b); 81.2(b); SOLI 

* 05-04 Suspension ofSome Requirements of Local Civil Rule 1 0.1 (b) 

* 05-03 Adoption and Implementation ofthe Model Third Circuit Electronic 

Device Policy 

* 05-02 Multiple, Unrelated Defendants in Matters 

* 05-01 Mandatory Electronic Filing 

* Guideline Sentencing 

But some districts simply list their standing orders chronologically or by number, with no 

indication ofsubject matter. This requires the practitioner to open and review every standing 
Report and Recorrnnended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 7 

order to see if it is relevant and to be sure that all relevant orders have been located. Few 

districts provide a search function for standing orders. 

Because one of the major concerns about standing orders is lack of notice, it is 

particularly important that a practitioner be able to find standing orders and review them for 

relevance. Those judges responding to the AO survey widely agreed that standing orders 

should be posted on the same locations on each court's Internet home page (87%, 74 out of 

85 respondents). There was even stronger agreement that standing orders should be listed, 

indexed, and made searchable so that orders on particular topics are easy to locate (94%, 79 

out of 84 respondents). 

6. Standing orders ofindividual judges 

In addition to standing or general orders ofthe district or division, many judges also 

issue standing or general orders to apply only to cases in their courts. Under section 205( a) 

of the E-Government Act of 2002, all such orders must be posted on the court's web site. 

Nonetheless, in some districts, these individual-judge standing orders are not posted on the 

court's web site. In other districts, the individual-judge standing orders are posted as 

separate documents for each judge; the link is found next to the judge's name, after"Judges" 

is clicked on the main web page. These individual-judge standing orders are usually long 

up to 50 pages - and are in a .pdf format that is not easily searchable. These documents 

often repeat much ofwhat is also in the district's or division's standing orders or local rules. 

But these documents also include variations from the district or division standing orders or 

local rules and from other judges' individual orders, ranging from significant to minor. 

These variations are usually not highlighted or readily identifiable. Individual-judge orders 

are also supplemented or revised from time to time, so that a review on one day does not 

assure complete familiarity on a later day. The results ofthe research and survey highlighted 

the importance ofconsistent posting ofindividual-judge standing orders as well as districtor division-wide standing orders, and ofmaking orders on particular topics easier to find. 

III. Analysis of the Case Law 

The case law reviewing the content of standing orders is relatively sparse, but four 

basic principles can be derived: 
Report and Recommended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 8 

1) Standing orders (both by the district and by an individual judge) can be an 

appropriate exercise ofa court's inherent authority over management ofits cases and control 

ofthe courtroom. See, e.g., United States v. Ray, 375 F.3d 980,993 (9th Cir. 2004) (standing 

order requiring U.S. Attorney to assemble information required by PROTECT Act to be 

submitted to the Sentencing Commission was upheld as a proper exercise of "the court's 

inherent authority to regulate the practice of litigants before it"). 

2) Standing orders may be found improper ifthey impose requirements beyond those 

imposed by (or in some other way conflict with) national rules or statutes. See, e.g., 

Commercial Cleaning Servs., L.L.c. v. Colin Servo Sys., Inc., 271 F.3d 374, 386 (2d Cir. 

2001) (application ofstanding order on Civil RICO pleading found to be improper because 

it imposed requirements "in excess of the essential elements of a RICO claim"); United 

States v. Zingsheim, 384 F.3d 867,871 (7th Cir. 2004) (application of standing order found 

to be improper because it was used to defer downward departure decisions when deferral was 

not authorized by Rule 35). 

3) Appellate courts have expressed concern about the lack of notice and public 

participation in the implementation of standing orders and have on occasion suggested that 

matters addressed in standing orders would be better placed in local rules. See, e.g., In re 

Fidelity/Micron Sec. Litig., 167 F.3d 735, 737 n.1 (1st Cir. 1 999)(In response to appellants' 

claim that they were not aware of the district court's standing order on cost allocation, the 

court stated: "[W]e urge the district courts to avoid incipient problems of this type by 

incorporating standing orders into local rules or, at least, making them readily available in 

the office ofthe Clerk ofthe district court."). Judge Easterbrook emphasized the difference 

between standing orders and local rules in In re Dorner: 

Adopting local rules through the device of standing orders 

contravenes the Rules Enabling Act in several ways beyond the 

vice of inconsistency. First, rules must be reviewed by an 

advisory committee. Second, rules may be adopted only after 

public notice and opportunity for comment. Third, rules 

adopted by district courts must be submitted to the council ofthe 

circuit for review. Finally, all local rules must be sent to the 

Director ofthe Administrative Office, who ensures their public 

availability. The [court] violated all ofthese requirements when 
Report and Recommended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 9 

it used a nonpublic standing order to contradict [Bankruptcy] 

Rules 8006 and 8007 .... 

In re Dorner, 343 F.3d 910,913 (7th Cir. 2003) (internal citations omitted). 

4) Standing orders may be improper to the extent they impose inflexible standards that 

do not accommodate the particular circumstances ofa case. See, e.g., In re Fidelity/Micron 

Sec. Litig., 167 F.3d 735, 737 (1st Cir. 1999) (concluding that district court's standing order 

on allocation of costs "raises a core concern: it does not leave sufficient room for 

individualized consideration of expense requests"). 

IV. Results of the Research and Surveys 

Too many standing orders raise many ofthe same concerns as too many local rules, 

as well as problems oflack ofnotice to, and comment from, the public. These problems are 

exacerbated by difficulties in finding standing orders on particular topics. The fact that 

individual judges as well as districts and divisions issue standing orders leads to a large 

number oforders. These problems can be reduced by using standing orders, as most courts 

do, to address only a narrow range oftopics and by ensuring that the orders are easy to find. 

As a general matter, standing orders are most appropriate to address matters that are 

ofno direct concern to practicing attorneys or litigants (internal administration); that require 

action for too short a time period to make the use of a local rule practical (temporary 

problems); or that require prompt action to address an emergency (emergencies). When 

standing orders are appropriate, whether district-wide, division-wide, or individual-judge, 

they should be easy to find and search. Standing orders should be posted on web sites in a 

consistent way from court to court and have indexes or other features that make it easier for 

lawyers and litigants to find and retrieve orders on particular topics. 

Attached to this report are specific guidelines on distinguishing between matters that 

are most appropriately addressed by standing orders and those that should be addressed by 

local rules, and on posting standing orders on web sites to make them easier to locate.3 The 

3This distinction does not present a problem for using a local rule rather than a standing order when 

a statutory or national rule provision applies "unless the court orders otherwise," In such a case, judges or 

districts may use a local rule to comply with the requirement that a court "order otherwise." Local 
Report and Recommended Guidelines 

on Standing Orders in District and Bankruptcy Courts 

Page 10 

Standing Committee can provide guidance, on request, on questions about the appropriate 

placement ofsubject matters in standing orders or local rules. In addition, the Standing 

Committee or AO staff can provide, on request, general advice on posting standing orders 

on each district's web site and making it easier to find orders addressing specific topics. 

rules-which are adopted by court order-have been held to meet the requirement that a court "order 

otherwise." See, e.g., Planned Parenthood o/Cent. N.J. v. Attorney Gen. o/N.J., 297 F.3d 253, 259~61 (3rd 

Cir. 2002) (holding that a local rule could extend the deadline under Rule 54( d) ofthe Federal Rules ofCivil 

Procedure, which required motions for attorneys' fees to be filed no later than 14 days after entry of 

judgment '''[u]nless otherwise provided by statute or an order ofthe court ... ,'" and noting that "[e]very 

Court ofAppeals to have addressed the issue has decided that a local rule extending the time to file a motion 

for fees is a 'standing order,' and, therefore, not inconsistent with the federal rules") (citations and emphasis 

omitted); cf United States v. Herrera, 252 F.3d 1356, No. 00-50356, 2001 WL 422627, at *3 (5th Cir. Mar. 

30,2001) (unpublished) (per curiam) (upholding criminal contempt conviction under 18 U.S.C. § 401(3), 

which required that the defendant have violated a court order, and rejecting the defendant's contention that 

a local rule is not a court order as without merit, explaining that "[a] local rule is the equivalent ofa standing 

order of the district court, and a standing order is an order for § 401(3) purposes") (internal citations 

omitted). 
GUIDELINES FOR DISTINGUISHING BETWEEN MATTERS APPROPRIATE 


FOR STANDING ORDERS AND MATTERS APPROPRIATE FOR LOCAL 


RULES AND FOR POSTING STANDING ORDERS ON A COURT'S WEB SITE 


I. 	 Guidelines for Using Standing Orders 

1. 	 Standing Orders May Be Used for Internal Administration. 

Standing orders are most useful and appropriate to address matters of internal 

administration. For such matters, notice and public comment are not necessary and in some 

cases not justified. Examples of matters of internal administration properly covered by 

standing orders include the following: 

• 	 Court securityl 

• 	 Planning for emergencies2 

• 	 Using nonappropriated funds 3 

• 	 General procedures for funds in court registry4 

• 	 Directives to court personnel5 

• 	 Division ofworkload6 

• 	 Referral to magistrate judges 7 

• 	 Using resources

8 

• 	 Juror wheels9 

• 	 Setting dates for naturalization hearings 10 

• 	 Court implementation ofjudicial resources for initial appearances II 

• 	 General scheduling of motions, such as on a particular day of the weekl2 

• 	 Appointments, such as to Criminal Justice Act Panel 13 

• 	 PACER fee exemptionsl4 

• 	 Closing or staffing courts on or after holidaysl5 

2. 	 Standing Orders Are Appropriate to Address Problems and Issues That 

Are Unlikely to Exist Beyond the Time Necessary to Implement a Local Rule. 

Because of the procedural requirements for local rulemaking, a standing order may 

be necessary to address a problem that is anticipated to be ofsuch short duration that it will 

be resolved by the time a local rule can be implemented. For example, some courts briefly 

suspended sentencing proceedings until the impact of Blakely v. Washington could be 
analyzed, which was completed before a local rule suspending proceedings could have been 

implemented. 16 

3. 	 Standing Orders Are Appropriate to Address Emergencies, During the 

Time Necessary to Implement a Local Rule. 

A third appropriate use for a standing order as opposed to a local rule is to address 

what amounts to an emergency. For example, some district courts entered a standing order 

adopting the Interim Rules to Implement the Bankruptcy Abuse Prevention and Consumer 

Protection Act of 2005. Other courts have used standing orders to deal with unanticipated 

issues arising from particular kinds of cases, such as cases involving terrorism charges. If, 

however, the matter addressed is a continuing rather than a temporary one - and it affects 

members ofthe public then a local rule should be developed to address it. 17 

4. 	 Standing Orders May Be Appropriate to Address Rules of Courtroom 

Conduct as Opposed to Substantive Rules ofPractice. 

There are many standing orders that concern conduct in the courtroom. These can be 

district- or division-wide standing orders or individual-judge standing orders. Standing 

orders often set rules for "purely" courtroom conduct, such as eating and drinking in the 

courtroom, courtroom hours, whether lawyers should question witnesses from a podium or 

from counsel table, and whether lawyers must deliver courtesy copies to chambers. 

Eachjudge ofcourse has the authority to control his or her courtroom in the way that 

works best for that judge. Individual-judge standing orders may be appropriate ifthe judge 

has courtroom-conduct requirements that the local rules do not cover and the requirements 

govern purely courtroom conduct as opposed to more substantive matters. These Guidelines 

do not address a judge responding to case-management problems presented in a specific case 

by issuing orders in that case as opposed to issuing a standing order that applies generally. 

An individual-judge standing order should not repeat the provisions ofthe local rules 

or district- or division-wide standing orders. To avoid confusion, where an individual-judge 

standing order does deviate from district- or division-wide standing orders or local rules that 

generally apply, the judge's standing order should clearly identify the deviation and what 

different approach is required. 

Any standing order should be easy to find. The fact that many ofthe same topics or 

matters are inconsistently addressed in local rules in some courts, in district- or divisionwide standing orders in other courts, in individual-judge orders in yet other courts, or 

repeated with variations in some or all of these categories in some courts - adds to the 

2 

difficulty lawyers face in figuring out what standards apply and where to look for those 

standards. 

The case law makes one outer limit clear. Whether issued by a district, a division, or 

an individual judge, a standing order that is inflexible or idiosyncratic may be found 

improper by an appellate court, particularly ifthere is a question as to adequate notice ofthe 

order. For example, in In re Contempt Order ofPetersen, 441 F.3d 1266 (10th Cir. 2006), 

the magistrate judge entered an order ofcriminal contempt against a government lawyer who 

was five minutes late to a pretrial detention hearing. The lawyer had violated the judge's 

"standing policy" that any lateness would be sanctioned in the amount of$50, payable to the 

court no excuses permitted. The court of appeals vacated the order, reasoning that it 

failed to take account ofthe circumstances of a particular case. It noted that the lawyer was 

in time to argue the motion, and that the judge made no effort to inquire into the reasons for 

the lawyer's tardiness. Moreover, the court was concerned that the lawyer had no notice of 

the "standing policy." 

5. 	 Rules on Filing, Pretrial Practice, Motion Practice, and Other Matters That 

Litigants Must Comply with Should Be Placed in Local Rules. 

There are many standing orders both district- and division-wide and individualjudge orders - that control such matters as electronic filing; special pleading requirements 

(such as in civil RICO cases); sealing criteria and procedures; electronic discovery protocols; 

filing and litigating motions, including summary judgment motions; limits on counsels' 

questions during voir dire; time limits on opening statements; transcribing audio recordings 

entered as evidence; applications for attorney fees; and filing memoranda oflaw. Many of 

these orders differ from local or national rules and some are in tension with or even 

contradict those rules. Issues relating to such matters as filing pleadings and motions, 

litigating motions, and developing criteria for sealing documents, are so important to the 

practicing bar that notice and public comment are essential. I8 

With respect to electronic filing, the argument is sometimes made that technology 

develops so quickly that by the time a local rule can be implemented, it is outmoded and a 

new local rule is needed. But the prospect oftechnological development does not justify the 

placement ofall electronic filing rules in standing orders. The model local rules developed 

by the Judicial Conference are flexible enough to accommodate technological change. It is 

notable that a number of districts have mandated electronic filing by standing order rather 

than local rule; but a standing order on such an important (and unchanging) matter is difficult 

to justify as necessary to accommodate constant changes in electronic filing. Filing 

requirements have a significant impact on lawyers and litigants and the local-rules comment 

process is important to developing workable and effective procedures. It is true, of course, 

3 

that the details ofimplementation ofelectronic filing may need fairly frequent updating, but 

that can be done by promulgating general local rules that cross reference a user's manual on 

the court's web site, as is the practice in many districts. 

6. 	 Rules for Mediation and Other Forms ofADR, Sentencing, and Related 

Proceedings Should Be Placed in Local Rules. 

Some districts have standing orders that essentially provide a complete set ofrules for 

such proceedings as ADR (including arbitration and mediation), sentencing (especially 

standards for probation and supervised release), and attorney disciplinary proceedings. Most 

districts have implemented such procedures in local rules, showing that standing orders are 

not necessary for these kinds ofproceedings. It is recommended that courts operating under 

such district-wide standing orders consider transferring these procedures to their local rules. 

Placing these subject matters in local rules would provide the lawyers and litigants 

participating in these proceedings an opportunity to comment on them before they are 

promulgated. 

7. 	 Standing Orders Should Not Duplicate a National or Local Rule. 

Under Civil Rule 83, Criminal Rule 57, and Bankruptcy Rule 9029, standing orders 

are not supposed to duplicate a national rule. Duplication must be distinguished from simply 

referring to a national rule, which is of course permissible. But if a standing order actually 

duplicates a national rule, it is both unnecessary and improper. 

There is no similar prohibition on a standing order duplicating a local rule, but such 

duplication is problematic. Including the same subject matter in both a local rule and in a 

standing order is in itself confusing. The potential for confusion increases ifone changes and 

the other does not, or ifthe standing order is close but not identical to the local rule. Minor 

variations, poor paraphrasing, or selective duplication will introduce even more confusion. 

It could be argued that duplicating some local rules in standing orders might increase the 

likelihood that the lawyers know of the requirements; but the risks of "incomplete" 

duplication, or a change in one rule but not the other, caution strongly against attempting to 

duplicate the terms of a local rule in a standing order. 

8. 	 Standing Orders Must Not Abrogate or ModifY a Local Rule. 

Some district courts have abrogated or modified a local rule by issuing a standing 

order, even without the justification of an emergency. Under Civil Rule 83, Criminal Rule 

57, and Bankruptcy Rule 9029, a court may only regulate practice in a manner consistent 

with the district's local rules. The use ofstanding orders to abrogate or modify a local rule 

4 

is problematic, moreover, because it requires the practitioner to master both the local rule and 

the standing order and then to determine how they interact. The transaction costs outweigh 

whatever benefit might be argued to exist from changing a local rule by way of standing 

order. 

II. 	 Guidelines for Posting and Providing Access to Standing Orders 

Given the lack ofnotice and public comment before standing orders are entered, it is 

critical that members ofthe public have a ready way to find and access them. Under current 

practice, members of the public can find this difficult because there is no consistent, 

predictable approach to posting standing orders on court web sites, and most courts do not 

have indexing or search functions that allow members ofthe public readily or reliably to find 

what they are looking for among all the posted standing orders. 

In posting standing orders on court web sites, the following guidelines should be 

followed: 

1. 	 The home page for each court's web site should have a link entitled "Standing 

Orders." 

2. 	 The link should direct the user to a page with a further link to the court's 

general standing orders, and individual links for the standing orders of each 

judge on the court. 

3. 	 Notice of a new standing order, or a change to a standing order, should be on 

the court's web site for a reasonable period. 

4. 	 The posted standing orders for the court and for each individual judge should 

contain an index and a word-search function that allows the user to locate and 

access orders on particular topics or subjects and ensure that all relevant orders 

have been found. 

1. 	 See Southern District of Texas, Order 2001-05, In Re: Weapon Possession in Court 

Facilities (limits individuals who can possess a firearm in courthouses). 

2. 	 See Northern District of Oklahoma, General Order 01-05 (adopting Occupant 

Emergency Plan for occupants ofthe courthouse). 

3. 	 See Southern District of Texas, Order 1995-13, In the Matter ofOperations Without 

Appropriations for Fiscal Year 1996. 

4. 	 See Southern District of Texas, Order 1992-10, Authorizing Withdrawal of Excess 

Securities. 

5 
5. 	 See Southern District of Texas, Order 1992-22, Order for Docketing Priority 

(directive to court personnel re importance of prompt docketirig). 

6. 	 See Southern District ofTexas, Order 2006-1, In the Matter ofthe Division ofWork 

Calendar Year 2006. 

7. 	 See Northern District of Florida, Order dated 5/3112000, Referral of Civil Cases to 

Full-time Magistrate Judges (ordering that all new social security cases be randomly 

assigned, on a rotating basis, to the division's full-time magistrate judges). 

8. 	 See Northern District ofFlorida, Order dated 10/2/2006, Authorization for In-District 

Travel for Clerk of Court and Chief Probation Officer (also authorizing 

agency-financed travel to FJC or AO training sessions). 

9. 	 See Southern District of Texas, Order 2005-09, In Re: Refilling the Master Jury 

Wheels. 

10. 	 See Southern District ofTexas, Order 1990-44, Order Setting Naturalization Hearing 

Date. 

11. 	 See Southern District of Texas Order 1991-26, In the Matter of Guidelines for 

Coordination ofCriminal Procedures (guidelines for coordinating criminal procedures 

in Houston Division to ensure that an apprehended defendant is brought before a 

magistrate judge as quickly as possible). 

12. 	 See District ofSouth Carolina, Order ofJudge Anderson (providing that civil motions 

are heard on Mondays at 1:30 p.m., and ifMonday is a holiday, the next motion day 

is the following Monday). 

13. 	 See Northern District ofFlorida, Order dated 12/14/2006, Criminal Justice Act Panel 

(appointing a new member). 

14. 	 See Northern District of Florida, Order dated 4/7/2006, Exemption from Fees to 

PACER (authorizing fee exemption for academic researcher). 

15. 	 See Northern District ofOklahoma, General Order 06-19 (announcing closing ofcourt 

on Friday, November 24, 2006). 

16. 	 See Northern District of Oklahoma, General Order 04-07 (stating that it was 

considering a moratorium on sentencing proceedings until it could study Blakely, and 

directing the U.S. Attorney to identify any case in which a delay might violate the 

Speedy Trial Act). 

6 
17. 	 It could be argued that any "emergency" should be handled by an interim local rule 

rather than a standing order. See 28 V.S.c. § 2071(e) ("If the prescribing court 

determines that there is an immediate need for a rule, such court may proceed under 

this section without public notice and opportunity for comment, but such court shall 

promptly thereafter afford such notice and opportunity for comment."). But so long 

as there is ultimately a local (or national) rule implemented within a reasonably short 

time period to deal with the problem on a permanent basis, there is no real distinction 

between a standing order and an interim local rule - because both are implemented 

without a period for public comment. 

18. 	 This distinction does not present a problem for using a local rule rather than a 

standing order when a statutory or national rule provision applies "unless the court 

orders otherwise." In such a case, judges or districts may use a local rule to comply 

with the requirement that a court "order otherwise." Local rules-which are adopted 

by court order-have been held to meet the requirement that a court "order 

otherwise." See, e.g., Planned Parenthood o/Cent. NJ. v. Attorney Gen. o/NJ., 297 

F.3d 253,259-61 (3rd Cir. 2002) (holding that a local rule could extend the deadline 

under Rule 54( d) ofthe Federal Rules ofCivil Procedure, which required motions for 

attorneys' fees to be filed no later than 14 days after entry ofjudgment "'[u]nless 

otherwise provided by statute or an order of the court ... ,'" and noting that "[ e ]very 

Court ofAppeals to have addressed the issue has decided that a local rule extending 

the time to file a motion for fees is a 'standing order,' and, therefore, not inconsistent 

with the federal rules") (citations and emphasis omitted); cf United States v. Herrera, 

252 F.3d l356, No. 00-50356, 2001 WL 422627, at *3 (5th Cir. Mar. 30, 2001) 

(unpublished) (per curiam) (upholding criminal contempt conviction under 18 V.S.C. 

§ 40 I (3), which required that the defendant have violated a court order, and rejecting 

the defendant's contention that a local rule is not a court order as without merit, 

explaining that "[a] local rule is the equivalent ofa standing order ofthe district court, 

and a standing order is an order for § 40 I (3) purposes") (internal citations omitted). 

7