Judge Richard M. Berman — United States District Court, Southern District of New York

Emergency Individual Rules and Practices in Light of COVID-19

Revised: April 6, 2020 EMERGENCY INDIVIDUAL RULES AND PRACTICES IN LIGHT OF COVID-19 Richard M. Berman, United States District Judge Chambers Email:

BermanNYSDChambers@nysd.uscourts.gov Unless otherwise ordered by the Court, these Emergency Individual Rules and Practices apply to all matters before Judge Berman (whether criminal or civil and whether involving a pro se party or all counseled parties), and they are a supplement to Judge Berman’s stan- dard Individual Rules and Practices. If there is a conflict between these Rules and Judge Berman’s standard Individual Rules and Practices, these Rules control.

1. No Paper Submissions Absent Undue Hardship A. No papers, including courtesy hard copies of any filing or document, may be submitted to Chambers. All documents must be filed on ECF or, if permitted or required under the Court’s Individual Rules and Practices, emailed to
   BermanNYSDChambers@nysd.uscourts.gov. B. In the event that a party or counsel is unable to submit a document electronically — either by ECF or email — the document may be mailed to the Court. To the maximum extent possible, however, this means of delivery should be avoided, as delivery of mail to the Court is likely to be delayed.

2. Conferences and Proceedings A. In Civil Cases. Unless otherwise ordered by the Court, all conferences and pro- ceedings in civil cases will be held by telephone. The parties should call into the Court’s dedicated conference line at (877) 336-1829, and enter Access Code 626- 5989, followed by the pound (#) key. Participants for each conference will also be issued a Security Code to enter, followed by the pound (#) key. Members of the public who wish to listen in may contact Chelsea Tabolt by email at Chelsea_Tabolt@nysd.uscourts.gov for the security code. B. In Criminal Cases. To the maximum extent possible, all conferences and pro- ceedings will be held by either telephone or video. Any objections to proceeding by telephone or video shall be filed with the Court no later than one week prior to the scheduled conference and shall include relevant legal authorities.

3. Communications with Chambers A. Telephone Calls. Telephone calls will not be answered. There may well be sig- nificant delays in responding to any voicemail messages. Thus, parties are en- couraged to make any requests or inquiries to the Court through ECF or, if per- mitted or required under the Court’s Individual Rules and Practices, by email. If leaving a voicemail, a caller should (1) briefly state the nature of the issue (in- cluding, if applicable, the case name and docket number); and (2) provide a call- back telephone number. B. Urgent Matters. For urgent matters requiring immediate attention, parties should send an email to Chambers that (1) includes the word “URGENT” in the subject line; (2) specifies the case name and docket number; (3) briefly describes the na- ture of the issue; and (4) provides a telephone number at which the party (and any other callers) can be reached. C. Faxes. Faxes are not permitted for any purposes. They will not be responded to. D. Hand Deliveries. Nothing may be delivered to Chambers at this time. E. In New Criminal Cases. Upon assignment of a new criminal case to Judge Berman, the Assistant United States Attorney (after conferring with defense coun- sel) must immediately email the Court to arrange for a prompt conference/ar- raignment.

4. Applications for Temporary Restraining Orders (“TROs”).
   Parties intending to file applications for TROs or other emergency relief must send all of their papers (in text-searchable PDF format) to the Court by email. The email should (1) include the word “URGENT” in the subject line; (2) provide a telephone number at which the party (and any other relevant litigants) can be reached; and (3) provide the par- ty’s availability for a telephone conference in the succeeding few days.

Individual Practices

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DANIEL PATRICK MOYNIHAN COURTHOUSE 500 PEARL STREET, COURTROOM 17B NEW YORK, NY 10007 (212) 805-6715

RICHARD M. BERMAN 

NOVEMBER 2020 United States District Judge

INDIVIDUAL PRACTICES OF HON. RICHARD M. BERMAN

Matters before Judge Berman shall be conducted in accordance with the following practices unless otherwise ordered by the Court.

Communications with Chambers

A. Letters. Communications with Chambers shall be by letter. Letters should be file electronically on ECF. Copies of correspondence between counsel shall not be filed on ECF or otherwise sent to the Court.

B. Telephone Calls. Telephone calls to Chambers are not permitted except in emergency situations. Any calls to Chambers must include counsel for both sides to the litigation and may not be ex parte.

C. Faxes. Faxes to Chambers are not permitted unless specifically authorized.

D. Emails. Emails to Chambers are not permitted unless specifically authorized.

E. Requests for Adjournments or Extensions of Time. Requests for adjournments or extensions of time shall be by letter and shall be made at least 48 hours prior to the scheduled date. Requests shall state (1) the original date, (2) the number of previous requests for adjournment or extension, (3) whether previous requests were granted or denied, and (4) whether the adversary consents and, if not, the reasons given by the adversary for refusing to consent. If the requested adjournment or extension affects any other scheduled dates, a proposed scheduling order (reflecting only business days) must be attached.

Motions

A. Pre-Motion Conferences in Civil Cases. A pre-motion conference with the Court is required before making any motion, except: (1) motions that are required by Federal Rule of Appellate Procedure 4(a)(4)(A) to be made by a date certain; and (2) pro hac vice motions. To arrange a pre-motion conference, the moving party shall submit a letter not to exceed three pages (double-spaced) in length setting forth the bases for the anticipated

motion. The opposing party may respond with a letter not to exceed three pages (double spaced) within three business days of receiving the pre-motion letter.

Any application presented by order to show cause must include a written explanation (with case and statutory authority) why ordinary motion practice is not available and why the matter is appropriately treated as an order to show cause.

B. Courtesy Copies of Documents in Excess of 25 Pages.

1. Pleadings. Courtesy copies of pleadings (including Fed. R. Civ. P. 7.1 Statements), marked as such, shall be submitted to Chambers as soon as possible after filing.

2. Motion Papers. Courtesy copies of all motion papers and any accompanying affidavits or exhibits, marked as such, shall be submitted to Chambers at the time the papers are served. Courtesy copies of any accompanying affidavits or exhibits shall be bound, labeled, tabbed, and indexed.

C. Memoranda of Law. Memoranda of law in support of and in opposition to motions may be up to 25 pages (double-spaced), and reply memoranda may be up to 10 pages (double-spaced). All memoranda of 10 pages or more shall contain a table of contents and a table of authorities. Use double spacing, one-inch margins, and 12-point font for text and footnotes (footnotes may be single-spaced).

1. Opening Memoranda. All motions shall be filed jointly if there is more than one movant on a side (i.e., plaintiffs or defendants) unless the Court provides otherwise.

2. Opposition/Cross-Motion. All parties opposing a motion shall file a joint opposition.

Any cross-motion shall be included in the opposition brief.

3. Reply. One joint reply may be filed in support of a motion. Replies shall include any opposition to a cross-motion.

D. Affidavits and Exhibits. The Court does not generally perceive the need for extensive affidavits or exhibits in support of or in opposition to a motion.

E. Filing of Motion Papers. Motion papers shall be filed promptly after service.

F. Oral Argument on Motions. Most motions are resolved “on submission.” Parties may request oral argument at a pre-motion conference.

G. Motions for Final Approval of Class Settlement and Attorneys’ Fees. Parties moving for final approval of a class settlement and for class counsel’s fees should include

in their motion papers, (1) class counsel’s contemporaneous time sheets, which may be submitted for in camera review; (2) invoices documenting class counsel’s requested expenses; (3) the claims administrator’s requested fees and expenses, and contemporaneous time sheets (which should include an estimated amount of fees and expenses to administer the settlement fund after final approval of the settlement and approval of any final distribution plan); (4) the claims administrator’s contemporaneous time sheets may be submitted for in camera review; and (5) invoices documenting the claims administrator’s requested expenses. Any subsequent motion for an award of claims administrator’s fees and expenses should include contemporaneous time sheets and invoices documenting the fees and expenses incurred after the filing of the motion for final approval of settlement and for class counsel’s fees.

Neither attorneys’ fees or expenses nor the claims administrator’s fees or expenses are to be paid until at least 80% of the settlement fund has been distributed, i.e. checks have been mailed, to the class.

Confidentiality Orders

Litigants should assume that all pleadings and documents will appear on the public docket, with very limited exceptions. Proposed confidentiality orders submitted to the Court shall include the following language: “The Court retains discretion whether to afford confidential treatment to any confidential document or information contained in any confidential document submitted to the Court in connection with any motion, application, or proceeding that may result in an order and/or decision by the Court.”

Sealing

A. Filing Under Seal in Civil and Miscellaneous Cases

1. Sealing/Redactions Not Requiring Court Approval. Federal Rule of Civil Procedure 5.2 describes sensitive information that must be redacted from public court filings without seeking prior permission from the Court.
2. Sealing/Redaction Requiring Court Approval. Motions or Letter Motions for approval of sealed or redacted filings in civil and miscellaneous cases and the subject documents, including the proposed sealed document(s), must be filed electronically through the court’s ECF system in conformity with the court’s standing order, 19-mc-00583, and ECF Rules & Instructions, section

B. Filing Under Seal in Criminal Cases

1. No pleadings, motions, or other documents may be filed under seal without prior authorization from the Court. When specifically authorized, counsel may email to bermannysdchambers@nysd.uscourts.gov an unredacted submission with a request to file under seal. If authorized to file under seal, counsel shall thereafter file a redacted version on the public docket.

Pre-trial Procedures

After the completion of discovery, the Court shall hold a conference to schedule the submission of pre-trial documents. No submissions other than those scheduled by the Court will be considered. A. Joint Pre-trial Orders in Civil Cases. The parties shall submit to the Court for its approval a joint pre-trial order that includes the information required under Federal Rule of Civil Procedure 26(a)(3) and the following:

1. The full caption of the action;

2. The names, addresses (including firm names), and telephone and fax numbers of trial counsel;

3. A brief statement by the plaintiff(s) of the basis of subject matter jurisdiction, and a brief joint statement by other parties as to the presence or absence of subject matter jurisdiction. Such statements shall include citations to authorities relied upon and relevant facts as to, for example, citizenship and jurisdictional amount;

4. A brief summary by each party of the claims (including counterclaims and cross-claims) and defenses each party has asserted that remain to be tried, including citations to all authorities relied upon. Such summaries shall also identify all claims (including counterclaims and cross-claims) and defenses previously asserted that are not going to be tried;

5. A statement by each party as to whether the case is to be tried with or without a jury, the number of trial days needed, and the estimated time needed for direct and cross-examination of each witness;

6. A statement as to whether or not all parties have consented to trial of the case by a magistrate judge (without identifying which parties have or have not consented);

7. All stipulations and/or agreed statements of fact or law;

8. A list of witnesses each party intends to call in its case-in-chief, in the order of appearance, indicating whether each witness will testify in person or by deposition and a brief description of the testimony of each witness (including the qualifications of any expert witnesses);

9. A list and brief explanation of all exhibits to be offered by each party. Any objections, and the basis for each objection, shall be noted following the exhibit objected to; and

10. A brief statement of the damages claimed, including dollar amounts, for each claim, counterclaim, and cross-claim. Expert testimony will not be admitted at trial unless the party calling such expert has complied with Federal Rule of Civil Procedure 26(a)(2). B. Filings Prior to Trial in Civil Cases. The parties shall file at the time of the filing of any joint pre-trial order, the following:

11. In jury cases—joint jury instructions, joint proposed voir dire questions, a joint verdict sheet, and any motions in limine. Submissions that are not joint will be rejected. Responses to motions in limine shall be due 7 days after filing of the motion(s). Any objections to a party’s proposed jury instruction shall be noted following the instruction objected to, and an alternative instruction shall be proposed in the same document. In addition to the courtesy copies required under Paragraph 2.B, proposed jury instructions shall be submitted to the Court in electronic format;

12. In non-jury cases—an affidavit for each witness (of up to 10 pages double- spaced) shall suffice (and serve) as that witness’s direct testimony. Live cross- examination and re-direct only will occur at trial; and A statement of the elements of each claim, counterclaim, cross-claim, or defense, together with a summary of the facts relied upon to establish each element. C. Prior to Trial in Criminal Cases. The parties shall file in accordance with the schedule set by the Court and the parties, the following:

13. Joint jury instructions, joint proposed voir dire questions, a joint verdict sheet, and any motions in limine. Submissions (other than motions in limine) that are not joint will be rejected. Responses to motions in limine shall be due 7 days after filing of the motion(s) unless otherwise ordered by the Court. Any objections to a party’s proposed jury instructions shall be noted following the instruction objected to, and an alternative instruction shall be proposed in the same document. In addition to the courtesy copies required under Paragraph 2.B, proposed jury instructions shall be submitted to the Court in electronic format.

14. “Brady” Material. Materials and information required to be disclosed pursuant to Brady v. Maryland and its progeny (“Brady Material”) – whether in written or recorded format, or otherwise – must be disclosed to defense counsel according to the following schedule:

a. Brady Material known to the Government at the time of Indictment – other than purely impeachment materials and information required to be produced pursuant to Giglio v. United States and its progeny (“Giglio Material”) – must be produced to defense counsel no later than two weeks following the date of the filing of the indictment, regardless of whether or not the parties are engaged in plea discussions. Such Brady Material includes, by way of example, not only information that tends to exculpate a Defendant or support a potential defense to the charged offense(s), but also information that tends to mitigate the degree of the defendant’s culpability or to mitigate punishment. This requirement applies regardless of whether the Government “credits” the Brady Material.
b. Brady Material (other than Giglio Material) that becomes known to the Government following filing of the Indictment must be disclosed, absent exceptional circumstances, approved by the Court, within two weeks of when it becomes known and, in any event, no later than four weeks prior to any trial or guilty plea.
c. Absent exceptional circumstances, approved by the Court, Giglio Material must be disclosed four weeks prior to the date of the start of trial or guilty plea. Such material includes, by way of example) a witness’s prior inconsistent statements, written or oral; benefits given and promises made to the witness; information that tends to show that the witness has a personal motive to inculpate the defendant; and information that tends to show that the witness has a physical or mental impairment that could affect the witness’s ability to perceive, recall, or recount relevant events. Giglio Material developed less than four weeks before trial (e.g., as a result of further interviews of witnesses) must be disclosed immediately.
d. To achieve adequate compliance with the foregoing rules, the Government has a continuing, good faith obligation to seek Brady Material and Giglio Material from law enforcement and regulatory agencies that are or have been involved in the prosecution of the defendant or in parallel proceedings or investigations involving the defendant.
e. The Section C. time-tables, being necessary to fulfill the constitutional obligations imposed by Brady v. Maryland, Giglio v. United States, and their progeny, apply regardless of whether the Brady Material and Giglio Material also are required to be produced pursuant to the Federal Rules of Criminal Procedure or the Jencks Act and the time-tables applicable thereto.
f. For good cause shown, in exceptional circumstances, the Government may seek a protective order delaying disclosure of materials and information.
g. If the Government fails to comply with these obligations, the Court, in addition to ordering production of the information, may: (1) specify the terms and conditions of such production; (2) grant a continuance; (3) impose evidentiary sanctions; (4) impose sanctions on any responsible lawyer for the Government; (5) dismiss charges before trial or vacate a conviction after trial or a guilty plea; or (6) enter any other order that is just under the circumstances.

Default Judgment Procedure

A. Prepare an Order to Show cause for default judgment and make the Order returnable at a conference before the Court. Leave blank the date, time, and room of the conference.
(Please note: Service of all Orders to Show Cause shall be made in the same manner required to commence the action.) The Court will set the date, time, and room when he signs the Order.

B. The following papers must be provided in support of the Order to Show Cause:

1. an attorney’s affidavit stating why a default judgment is appropriate and providing legal authority why an inquest is unnecessary;

2. a proposed default judgment;

3. a copy of the affidavit of service of the original summons and complaint;

4. a Certificate from the Orders and Judgments Clerk (500 Pearl Street) stating that no answer has been filed; C. File the Order to Show Cause and supporting documents on ECF, following the Clerk’s Office Electronic Case Filing Rule 16.3.
   D. Appear at the conference on the return date with the proposed default judgment separately backed. The proposed judgment must be approved by the Orders and Judgments Clerk prior to the conference. The default judgment must include a recital of service of the Order to Show Cause and Affidavit in support upon the defaulting party, including the date of service.

Criminal Case Sentencing Submissions Sentencing submissions, including any letters, are to be filed electronically via ECF. Letters must filed together as attachments to a single document marked SENTENCING MEMORANDUM with the caption and docket number clearly indicated. If a party seeks to redact or seal information (beyond the (eleven) categories of information identified in the Southern District of New York’s ECF Privacy Policy), an application to do so must be served and filed with the Court at the time the sentencing memorandum is served. The application should clearly identify the proposed redaction and explain the reasons for the redaction or sealing and state whether opposing counsel agrees to the redaction or sealing. The redacted version must be filed on ECF. The unredacted version shall be submitted to Chambers for the Court’s determination as to whether sealing of such document is appropriate. A defendant’s sentencing memorandum and the Government’s sentencing memorandum are due in accordance with the schedule set by the Court.

Media and Public Access to Proceedings

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DANIEL PATRICK MOYNIHAN UNITED STATES COURTHOUSE 500 PEARL STREET, COURTROOM 21B NEW YORK, NY 10007 (212) 805-6715

RICHARD M. BERMAN

United States District Judge

JULY 28, 2010

Media and Public Access to Proceedings

It is the Court’s practice (consistent with security and space limitations) to ensure wide access to court proceedings and to ensure fair treatment of all individuals who demonstrate a need for press credentials. To this end, the Court makes extensive use of “overflow” rooms so that everyone has an opportunity to view proceedings.

With respect to press credentials, the Court relies upon the New York City Police Department’s rules regarding press credentials which become effective on August 19, 2010. Specifically, persons who have either an NYPD Press Card or an NYPD Reserve Press Card will also be given an SDNY press pass for a court proceeding if they request such a pass from the SDNY District Executive’s Office sufficiently in advance (two weeks) of the court proceeding.

Individuals who demonstrate that they cannot obtain NYPD Press Cards or NYPD Reserve Press Cards may nevertheless obtain an SDNY press pass for a particular court proceeding if they demonstrate they are members of the press and if they pre-register sufficiently in advance (two weeks) with the SDNY District Executive’s Office. Such pre-registration includes: 1- completing an application which includes personal identifying information and photo ID, 2- supplying the name of the news organization that employs or retains them, if any, and a letter from such organization attesting to such employment, and 3- supplying 6 of the individual’s most recent news publications published within the past 24 months.

SDNY press passes allow members of the press to sit in areas of the courtroom designated as press areas. Members of the press and the public will also be accommodated in designated overflow rooms in the event of limited space in the courtroom where the proceeding is taking place.

Sentencing Submissions

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DANIEL PATRICK MOYNIHAN COURTHOUSE 500 PEARL STREET, COURTROOM 12D NEW YORK, NY 10007 (212) 805-6715 RICHARD M. BERMAN SEPTEMBER 2013 United States District Judge INDIVIDUAL RULES OF PRACTICE FOR CRIMINAL CASE SENTENCING PROCEEDINGS

The Court assumes that every document in a sentencing submission, including letters, will be filed in the public record through the ECF system, using the procedures described below. The defendant is responsible for filing all letters submitted on behalf of the defendant, including those from friends, relatives, etc. The Government is responsible for filing all letters from victims. Letters must be grouped and filed together as attachments to a single document marked SENTENCING MEMORANDUM with the caption and docket number clearly indicated. In this regard, the parties are referred to E-Government Act of 2002 and the Southern District’s ECF Privacy Policy (“Privacy Policy”) and reminded not, unless necessary, to include the five categories of “sensitive information” in their submissions (i.e., social security numbers, names of minor children, dates of birth, financial account numbers, and home addresses). Parties may exclude or redact the five categories of “sensitive information” and the six categories of information requiring caution (i.e., personal identifying number, medical records, treatment and diagnosis, employment history, individual financial information, proprietary or trade secret information, and information regarding an individual’s cooperation with the government) as described in the Privacy Policy, without application to the Court. If a party seeks to redact or seal information (beyond the eleven categories of information identified in the Southern District of New York’s ECF Privacy Policy), an application to do so must be served and filed at the time the sentencing memorandum is served. The application should clearly identify the proposed redaction and explain the reasons for the redaction or sealing and state whether opposing counsel agrees to the redaction or sealing. The redacted version must be filed on ECF. The unredacted version shall be submitted to Chambers for the Court’s determination as to whether filing such document under seal is appropriate. A defendant’s sentencing memorandum and the government’s sentencing memorandum are due in accordance with the schedule set by the Court. If no schedule is set by the Court, then the defendant’s sentencing submission shall be served and file two weeks in advance of the date set for sentence. The Government’s sentencing submission shall be served one week in advance of the date set for sentence. The parties should provide the Court with one courtesy copy of each submission when it is served.

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