Judge Kennelly will not be holding court Monday, March 10, 2008 through Friday, March 14, 2008. Next available date for motions is Tuesday, March 18, 2008.

Courtroom	2103
Chambers	2188
Courtroom Deputy	2106
Court Reporter	2102

INSTRUCTIONS FOR FINDING ONLINE MOTION RULINGS

The information on this and linked pages contains important information about my case management procedures. Please take the time to read it carefully.

These procedures have been designed to facilitate the prompt, efficient and equitable disposition of civil and criminal cases on my docket. The success of these procedures depends on your willingness to familiarize yourself with and follow them. Counsel will be expected to fully explain to the court any failure to comply with these procedures.

• Civil Cases
• Criminal Cases

Office Hours: 9:00 a.m. - 4:30 p.m.

Regular Schedule:

Motion Call: Tuesday through Thursday @ 9:30 a.m.

Status Call: Monday through Thursday @ 9:00 & 9:30 a.m.

Please note that Judge Kennelly requires three days notice for the presentation of all motions.

As required by Local Rule 5.2(e), a "judge’s copy" must be provided of all documents filed with the court, including documents filed electronically. This copy should be delivered either to Judge Kennelly’s chambers or to the lobby drop-box.

Judge Kennelly will set all newly-filed cases for an initial conference pursuant to Federal Rule of Civil Procedure 16(b) approximately 60 days of the filing of the complaint. Order Setting Initial Status Hearing. At the initial conference, the parties should be prepared to discuss the nature of the case, report on the possibility of settlement, and discuss the nature and length of discovery necessary to prepare the case for trial. Written status reports should not be filed. A discovery cut-off date may be set at the initial conference.

In some cases, the scheduled status conference may take place before a defendant has responded to the plaintiff’s complaint. Judge Kennelly expects all defendants who have been served with process to participate in this conference even if they have not yet responded to the complaint.

Motion Practice

All motions, without exception, must be noticed for presentment as required by Local Rule 5.3(b). Motions that are not noticed for presentment will be stricken.

All motions, civil and criminal, are to be noticed for Tuesday, Wednesday, or Thursday at 9:30 a.m. Judge Kennelly requires all motions to be served electronically at least three business days before the date the motion is to be heard.

Joint, uncontested, and agreed motions should be so identified in the title and body of the motion.

A paper copy of all motions, including those filed electronically, must be submitted in accordance with Local Rule 5.3(e), either by submission to chambers (Room 2188) or by leaving it in the lobby drop box.

Rulings on routine or uncontested motions will be posted to CourtWeb by Judge Kennelly’s staff by approximately 3:00 p.m. the day prior to the scheduled hearing. Click on the following link for the specific instructions for using Court Web online rulings:

INSTRUCTIONS FOR USING COURT WEB ONLINE RULINGS

If an appearance is unnecessary, it is the obligation of the movant to notify the respondent(s) accordingly.

Motions to extend a discovery cutoff date or to reset a trial date, even if agreed, ordinarily will require a court appearance.

Motions to extend a discovery cutoff date must be noticed for hearing before the existing cutoff date.

Judge Kennelly will consider motions at scheduled status hearings, so long as the notice requirements of Local Rule 5.3 have been met.

Discovery Motions

Judge Kennelly believes that parties can and should work out most discovery disputes and thus discourages the filing of discovery motions. Judge Kennelly will not hear or consider any discovery motion unless the movant has complied with the "meet and confer" requirement of Local Rule 37.2. The motion must state with specificity when and how the movant complied with Local Rule 37.2. Parties are reminded that compliance with Local Rule 37.2 requires a good faith effort to resolve discovery disputes and communication that takes place face to face or by telephone. The exchange of correspondence ordinarily will not be sufficient to comply with Local Rule 37.2.

All parties should be fully prepared to argue any discovery motion on the date that it is presented. Judge Kennelly ordinarily will rule on discovery motions after hearing argument at the motion call and without briefing. If he believes that the motion requires briefing, an expedited briefing schedule will be set so that the matter can be resolved promptly.

Parties are reminded that there is no "sequence" in which discovery must occur, and that one party’s failure or inability to respond to discovery will not excuse any other party’s prompt compliance. Parties are also reminded that the pendency of a motion, such as a motion to dismiss, does not operate as a stay of discovery.

Submitting a Proposed Order for Electronic Entry

Judge Kennelly is participating in a pilot program regarding electronic signature of orders, other than minute orders, which are submitted by parties.

Proposed orders are technically not to be "filed." Rather, they are to be "submitted" to the judge to consider, to modify, if appropriate, and to enter electronically. For example, proposed orders such as stipulated protective orders require court approval before actually being given full effect.

To prevent confusion, such proposed orders must be attached to an e-mail sent to the following e-mail address: Proposed_Order_Kennelly@ilnd.uscourts.gov

The subject line of the e-mail must include the case number and name, the docket number of the corresponding motion, if any, and the title of the order that is proposed as indicated on the Notice of Electronic Filing (NEF). All such documents must be submitted in a word processing format compatible with WordPerfect, which is a "Save As" option in most word processing software (if that option is not available, the document should be sent as a Word document). Such proposed orders must also be served on all other parties to the case.

Orders submitted for electronic signature in accordance with these instructions should not be e-mailed until after the underlying motion or request is heard in open court. In many cases, a minute order entered by the Clerk will suffice, and there will be no need for an electronically-signed order. Judge Kennelly will advise counsel whether an order should be submitted for electronic signature.

Protective Orders; Filing of Documents Under Seal

Any party moving for entry of a protective order by Judge Kennelly pursuant to Federal Rule of Civil Procedure 26(c) must abide by the following guidelines.

Judge Kennelly will not sign a protective order that allows counsel, in their discretion, to decide which matters are to be deemed confidential. The proposed order must specify the categories of documents or other matters which may be subject to the order (e.g., personnel files, medical information, confidential financial matters, etc.). The motion for protective order must set forth why confidentiality is necessary as to each such category.

Judge Kennelly will not sign a protective order that provides that items designated as confidential may, for that reason, be filed with the court under seal.  Rather, any protective order that contemplates under-seal filing must provide that no documents may be filed under seal absent a motion, filed and noticed for hearing prior to the due date of the particular filing, showing good cause for sealing a portion of the record in the case. The mere fact that information has been designated as confidential by a party is insufficient to permit under-seal filing. A party seeking to file material under seal must set forth in its motion the reasons why the record should be sealed.

In any case in which Judge Kennelly permits a portion of a document to be filed under seal, the party filing the document must also file a public-record version that includes the entire filing except for the portions that are being filed under seal.

Issuance of a protective order will not be given binding effect as a determination of good cause for Rule 26(c) purposes if, at any future time, a party moves for relief from the protective order's limitations. If such a motion is made, the court will engage in an appropriate balancing of the interests between privacy and public access to make a new determination of good cause in light of the facts then before the court.

Summary Judgment Motions

Judge Kennelly disfavors motions to strike all or portions of an opposing party's Local Rule 56.1 submission. Under ordinary circumstances, if a party contends that its opponent has included inadmissible evidence, improper argument, or other objectionable material in a Rule 56.1 submission, the party's argument that the offending material should not be considered should be included in its response or reply brief, not in a separate motion to strike.

Settlement Conferences

Instructions for settlement conferences for cases assigned to Judge Kennelly.

Final Pretrial Order

Judge Kennelly’s requirements for the filing of final pretrial orders differ somewhat from those imposed by Local Rule 16.1.

Parties should consult Judge Kennelly’s Final Pretrial Order requirements.

Jury Selection

Judge Kennelly typically selects twelve jurors in civil cases.

Judge Kennelly's Jury Selection Procedure

Jury Instructions

The Seventh Circuit Model Jury Instructions are to be used to the extent they apply. If Illinois law provides the applicable standards, the Illinois pattern instructions should be used for the substantive elements of the particular cause of action.

The following links provide examples of jury instructions for cases with claims not covered by the Seventh Circuit Model Jury Instructions. Counsel are advised to adapt these instructions to the circumstances of their case and to ensure that they reflect the current state of the law.

Personal Injury / Negligence & Contributory Negligence & third party claim (given in Kirkland v. Amtrak, 98 C 3699, trial held December 1999)

Labor Law / Secondary Boycott (given in Metropolitan Chicago, Inc. v. Teamsters Local 705, 99 C 2886, trial held February 2001)

Breach of Contract / Insurance Coverage / Exclusion for "Flood" (given in Industrial Enclosure Corp. v. Northern Insurance Co., 97 C 6850, trial held June 2001)

Breach of Joint Venture Agreement / Breach of Fiduciary Duty (given in Howington v. Ghourdjian, 00 C 7394, trial held November 2001)

Fraud / Fraudulent Conveyance (given in Synergy Assocs., Inc. v. Cusimano, 02 C 3320, trial held October 2004)

Antitrust (Monopolization) / Breach of Contract / Intentional Interference with Contract and Prospective Relations, with special verdict forms (given in JamSports and Entertainment, LLC v. Paradama Productions, Inc., 02 C 2298, trial held February-March 2005)

Due Process (Concealment of Exculpatory Evidence) / RICO, with special verdict forms (given in Manning v. Miller, 02 C 372, trial held December 2004 - January 2005)

Fourth Amendment / Body Cavity Search / Unwanted Medical Procedure (Thompson v. Cook County, 03 C 7172, trial held February 2006)

Federal Employers’ Liability Act / Negligence (Pierce v. Chicago Rail Link, LLC, 03 C 7524, trial held July 2006)

Defamation / Interference with Prospective Advantage (Installation Svcs., Inc. v. Electronics Research, Inc., 04 C 6906, trial held July 2006)

Breach of Contract / Holder in Due Course / Fraud (IFC Credit Corp. v. United Bus. & Indust. Federal Credit Union, 04 C 5905, trial held August 2006)

Scheduling

On the day of arraignment, dates will be set for:

- completion of the conference pursuant to Local Criminal Rule 16.1;
- the filing of defense pretrial motions and the government's responses;
- a status hearing, approximately six weeks before trial; and
- trial.

These dates will not be moved without a showing of good cause supported by a written motion.

Defense pretrial motions

1. Deadlines

Judge Kennelly expects all counsel to meet the deadlines he sets for the filing of the defendant's pretrial motions and government's responses to those motion. Those deadlines will not be altered without a written motion and a showing of good cause.

2. Compliance with Local Rules

Local Criminal Rule 12.1(b) imposes a "meet and confer" requirement prior to the filing of any motion seeking discovery. Any discovery-related motion that does not include a statement of compliance with that Rule is subject to being stricken.

If the defense wishes to make a record of the government's agreement to a discovery request, it may do so by filing a report pursuant to Local Criminal Rules 12.1 and 16.1 setting forth the defendant's request and the government's response.

Status hearing

The status hearing described above (under "Scheduling") ordinarily will be set for 1:30 p.m. approximately six weeks before trial. If the case is unusually complex, an earlier status hearing date may be set. Pretrial motions will be ruled upon on or before the status hearing date.

The primary purpose of the status hearing will be to determine if the parties expect the case to proceed to trial. If so, the Court will set a schedule for the filing of motions in limine and the submission of lists of witnesses, proposed voir dire questions, and jury instructions, and a date for the final pretrial conference.

If the defendant determines to plead guilty, the status hearing date can be used for a change of plea hearing. However, Judge Kennelly expects advance notice (i.e., a telephone call to the Courtroom Deputy) if a change of plea is expected, so that the Court can plan its schedule.

Change of the defendant's plea

Change of plea hearings ordinarily will be held at 1:30 p.m. As noted in Paragraph 3 of this Standing Order, a change of the defendant's plea can be scheduled for the status hearing date previously set. However, prior notice should be provided to Judge Kennelly's Courtroom Deputy if this is to occur.

If a guilty plea is to be offered pursuant to a written plea agreement, government counsel should deliver a copy of the plea agreement to chambers by the morning of the day of the change of plea hearing.

Sentencing

1. Setting and rescheduling of sentencing dates

A sentencing date will be set in all cases upon entry of a guilty plea or a finding of guilt. Absent extraordinary circumstances, an "open" sentencing date will not be given for a defendant who is in custody.

Sentencing hearings ordinarily will be set for 1:30 p.m. If the parties anticipate an evidentiary hearing, they are directed to advise the Courtroom Deputy no later than 3 business days before the sentencing, including the amount of time they expect the hearing will take.

Once set, a sentencing date will not be moved absent a written motion and a showing of good cause.  The motion must be noticed for hearing no less than two business days before the sentencing days and must be noticed for hearing in open court.  JUDGE KENNELLY HAS DIRECTED HIS COURTROOM DEPUTY TO REFUSE TELEPHONE REQUESTS TO MOVE SENTENCING DATES.

The last-minute rescheduling of a sentencing date, particularly when the defendant is in custody at a location other than the Metropolitan Correctional Center, imposes significant burdens on the Court's staff and the staff of the United States Marshal. Judge Kennelly's purpose in setting these rules with respect to sentencing dates is to avoid such last-minute disruptions. Counsel are expected to plan ahead for sentencing hearings just as they would for a trial or any other significant court hearing.

2. Submission of government's and defendant's versions

Government and defense counsel are expected to comply with the Local Rules' requirements regarding submission of materials to the Probation Office. The Court expects counsel who wish to be present when Probation interviews the defendant to cooperate with Probation in scheduling the interview.

3. Written sentencing submissions

Judge Kennelly encourages any party that disputes the Probation Office's proposed Sentencing Guidelines calculation to file, before the sentencing hearing, a written memorandum setting forth its arguments. Judge Kennelly also encourages any party seeking a sentence outside the advising guideline range to file a written memorandum supporting the request.

All written memoranda addressing issues concerning sentencing are to be filed and served on opposing counsel no less than one week before the sentencing date. Opposing counsel may file a response by no later than two business days before the sentencing hearing.

DISCLAIMER - The following are examples of jury instructions that have been approved in cases before Judge Kennelly. They should be regarded as models. Counsel is advised to adapt them to the particular circumstances of each case, and to ensure that they reflect the current state of the law.

Criminal / Copyright infringement & conspiracy (given in US v. Walker, 00 CR 744, trial held 3/11/02)

Criminal / Counterfeiting (given in US v. Smith, 00 CR 71, trial held 1/3/02)

Criminal / Felon in possession of firearm (given in US v. Suggs, 01 CR 206, trial held 5/21/02)

Criminal / Health care fraud & mail fraud (given in US v. Vasquez-Ruiz, 00 CR 1044, trial held 2/11/02)

Criminal / Wire fraud / Good faith defense (given in US v. Stephens, 02 CR 661, trial held 2/23/03)

Criminal / Narcotics / Use of telephone (given in US v. Trinidad, 00 CR 274, trial held November 2003)

Criminal / Wire Fraud and Food Stamp Fraud (given in US v. Alhalabi, trial held 2/05)

Criminal / Income Tax / Filing False Return (given in US v. Fuelling, trial held 12/05)

Criminal / Customs offenses (given in US v. Wieringa, trial held 5/06)

Criminal / Narcotics / Conspiracy and Use of Telephone / Buyer-Seller (given in US v. Hardmon, 05 CR 471, trial held 11/06)

Judge Kennelly is participating in a pilot program regarding electronic signature of orders, other than minute orders, which are submitted by parties.

Proposed orders are technically not to be "filed." Rather, they are to be "submitted" to the judge to consider, to modify, if appropriate, and to enter electronically. For example, proposed orders such as stipulated protective orders require court approval before actually being given full effect.

To prevent confusion, such proposed orders must be attached to an e-mail sent to the following e-mail address: Proposed_Order_Kennelly@ilnd.uscourts.gov

The subject line of the e-mail must include the case number and name, the docket number of the corresponding motion, if any, and the title of the order that is proposed as indicated on the Notice of Electronic Filing (NEF). All such documents must be submitted in a word processing format compatible with WordPerfect, which is a "Save As" option in most word processing software (if that option is not available, the document should be sent as a Word document). Such proposed orders must also be served on all other parties to the case.

Orders submitted for electronic signature in accordance with these instructions should not be e-mailed until after the underlying motion or request is heard in open court. In many cases, a minute order entered by the Clerk will suffice, and there will be no need for an electronically-signed order. Judge Kennelly will advise counsel whether an order should be submitted for electronic signature.