This Court advises the parties that when a motion to dismiss is filed, the nonmoving party has a right to amend its pleading once within 21 days. Fed. R. Civ. P. 15(a)(1)(B). Consistent with the purpose of the Federal Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, the nonmoving party is directed to review the motion to dismiss and to consider exercising, as appropriate, its right to amend under Rule 15(a)(1)(B). If the nonmoving party elects to amend its pleading in response to the motion to dismiss, then the moving party (unless otherwise ordered) must, within 21 days of the amended pleading, file either an answer or a renewed motion to dismiss.

If the nonmoving party elects not to amend but instead chooses to litigate the motion to dismiss, the nonmoving party (unless ordered otherwise) must file its response within 28 days of the filing of the motion, and the moving party must file its reply within 14 days of the filing of the response. In its response, the nonmoving party must also address whether any deficiencies identified by the motion to dismiss are curable by amendment.

Following these steps, the Court will take the motion under advisement and will rule in due course following any oral argument that the Court may in its discretion require. If the parties litigate the motion to dismiss and the moving party prevails, the nonmoving party is advised that the Court may dismiss the case with prejudice under the appropriate _assets/_documents/_forms/_legal standards.

When filing a motion for leave to amend a pleading, the party seeking leave to amend must include, as an exhibit attached to the motion, a redlined version of the proposed pleading that reflects all proposed changes. Any failure to comply with this requirement may result in the Court summarily striking the motion for leave. This rule does not apply to pleadings filed by pro se litigants.

Parties requesting entry of an order to preserve the confidentiality of materials disclosed in discovery must base the proposed order on the Model Confidentiality Order contained in the Local Rules (Form LR26.2), available HERE. The Model Confidentiality Order provides that parties should include or delete language in brackets as necessary to the specific case. Any other proposed changes to this model order must be shown in redlined format that reflects both deletions and additions to the model text. For proposed substantive changes, counsel and parties are encouraged to include comments explaining why the changes are sought.

Counsel shall file a motion for entry of the proposed confidentiality order and attach as an exhibit the redlined proposed order. Counsel shall separately submit a clean copy of the proposed order in Word format to the Court’s proposed order inbox: Proposed_Order_Kness@ilnd.uscourts.gov.

The Court will not enter a proposed confidentiality order suggesting that material a party has designated as “confidential” may, for that reason alone, be filed under seal. Any confidentiality order that contemplates under-seal filing must provide that no documents may be filed under seal absent a motion showing good cause for sealing a portion of the record. A party’s mere designation of information as “confidential” is insufficient to permit filing under seal. A party seeking to file material under seal must instead set forth in its motion the reasons why the record should be sealed. When a party wishes to file a document on the public docket that another party has marked confidential, the parties must meet and confer to determine who is the appropriate party to file any motion to seal.

Every case has an assigned Magistrate Judge. In civil cases, the parties may consent to have the assigned Magistrate Judge try the case. Consent to refer the entire case to the Magistrate Judge may offer efficiencies and greater certainty in scheduling a trial. All counsel in civil cases should inform their clients of this option and discuss it with opposing counsel.

Unless the Court directs otherwise, counsel and pro se litigants must not communicate with the Court about the merits of the case by letter, phone, or email (excluding the submission of a proposed order). All communications must be made in the form of a motion, brief, or a status report, properly noticed and served on opposing counsel.

If a party has questions about scheduling, the status of motions, or the logistics of trial, contact Judge Kness's Courtroom Deputy, Ellen Reyes, at Ellen_Reyes@ilnd.uscourts.gov or 312-582-3254.

Unless the Court directs otherwise, courtesy copies will not be accepted. Please do not prepare them and do not try to deliver them. If the Court orders a party to provide courtesy copies, please deliver those copies to the drop-box outside the Courtroom Deputy’s office (Room 2132). Please do not bring courtesy copies to Chambers. A delivery signature will not be available.

Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header.

Courtesy copies need not be delivered in an envelope unless the pleading contains under seal material.

This Standing Order applies to all cases assigned to Judge Kness, including any cases referred to the Magistrate Judges for supervision of discovery. The Court enters this Standing Order to exercise reasonable control over the mode of witness examinations and the presentation of evidence, so as to promote the search for truth, avoid wasting time, and protect witnesses from harassment and undue embarrassment. See Fed. R. Evid. 611(a); Fed. R. Civ. P. 30(d)(3)(B).

1.             Depositions are one of the most valuable tools in discovery. They are also, unfortunately, often impeded by the unacceptable conduct of witnesses and counsel. The Court will consider any effort to obstruct a deposition—through, for example, making speaking objections, giving improper instructions not to answer, or coaching the witness—as an attempt to undermine the truth-seeking function of litigation and will deal with such conduct accordingly. Litigation is not “a contest to see how much trouble you can cause your opponents. Those who treat it as such do so at their peril.” See Hal Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir. 1987).

2.             Counsel who wish to participate in depositions, and experts who hope to testify at trial, must comply with this Standing Order.

Civility

3.             Counsel are advised that the Court takes matters of civility seriously. Counsel must behave professionally at all times during depositions. Depositions must be civil, and attorneys must be respectful to witnesses, to the court reporter, and to other attorneys. Counsel must conduct themselves as if they were present in open  court. See Fed. R. Civ. P. 30(c)(1).

Questioning the Witness

4.             Treat the witness with respect at all times. Do not make faces, offer editorial comments, laugh, or otherwise make sarcastic expressions. Counsel must not interrupt a witness who is answering the question. By asking a question, counsel has invited a response from the witness. If the questioning attorney interrupts, the attorney for the witness can insist that the witness be allowed to complete his or her answer. If the witness repeatedly filibusters, the witness may become subject to extra deposition time. See Fed. R. Civ. P. 30(d)(1).  

Objections

5.             Counsel sometimes lodge objections with an improper motive. The Court will view such objections as an attempt to undermine the truth-seeking function of depositions. Counsel may object to the form of a question by making short, simple objections. Objections must be “concise[],” as the Federal Rules command. See Fed. R. Civ. P. 30(c)(2). Acceptable objections include “object to the form,” “objection; form,” and “object to the form of the question.” Such short-and-simple objections preserve any and all objections to the form of the question, see Fed. R. Civ. P. 32(d)(3)(B), including (1) leading; (2) vague; (3) ambiguous; (4) argumentative; (5) lack of personal knowledge; (6) lack of foundation; (7) calls for speculation; (8) calls for a _assets/_documents/_forms/_legal conclusion; (9) assumes facts not in evidence; (10) misstates the facts, or the testimony; (11) hearsay; (12) compound; (13) the document speaks for itself; and so on.

6.             Unless expressly asked, counsel shall not object by articulating all of the many reasons why a question is perceived to be defective. Making one specific objection—such as “objection; leading” or “objection; foundation”—is acceptable. A single, targeted objection gives the questioning attorney an opportunity to cure. But stringing together more than one specific objection is not. If counsel has more than one objection to a question, simply say “objection; form.” Improper objections are deemed to be no objections at all (when it comes to preservation). At summary judgment or at trial, the Court may treat deposition objections to be waived if they violate this Standing Order.

7.             As a reminder, the Federal Rules allow an instruction not to answer “only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion [for a protective order] under Rule 30(d)(3).” See Fed. R. Civ. P. 30(c)(2); Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007). If there is a dispute about an instruction not to answer, move on and complete the rest of the deposition. Preserve the issue on the record for later resolution by the parties or the Court.

Evasive or Incomplete Answers

8.             Under the Federal Rules, an “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” See Fed. R. Civ. P. 37(a)(4). Witnesses must give direct answers to straightforward questions. The Court will treat evasive deposition testimony as a failure, if not a refusal, to testify. A witness who gives evasive answers may become subject to extra deposition time, among other remedies. See Fed. R. Civ. P. 30(d)(1); Fed. R. Civ. P. 37. As during a trial, a witness may not take a break while a question is pending.

9.             Experts must comply with discovery obligations, see Fed. R. Civ. P. 26(a)(2)(B), and must participate in discovery in good faith. That rule fully applies to depositions.

Depositions under Rule 30(b)(6)

10.          Depositions under Rule 30(b)(6) pose special challenges and impose significant burdens. A party who seeks to take a 30(b)(6) deposition must serve a limited number of narrowly tailored requests. The requesting party must specify the topics with “reasonable particularity,” see Fed. R. Civ. P. 30(b)(6), so that the receiving party has a clear understanding of what information is requested.

11.          The number and scope of the topics must be proportional to the “needs” of the case. See Fed. R. Civ. P. 26(b)(1). The presumptive limit is 10 topics, and subtopics count.

12.          A party requesting a 30(b)(6) deposition is not entitled to select the person who will testify on behalf of the entity. A party requesting a 30(b)(6) deposition is also not entitled to the “most knowledgeable” witness. Instead, the “named organization” that provides corporate testimony under Rule 30(b)(6) is entitled to “designate” the person who will “testify on its behalf.” See Fed. R. Civ. P. 30(b)(6). An entity has the discretion to present “one or more” representative deponents. Id. The entity must educate the designated witness before the deposition as necessary. A 30(b)(6) deposition is the testimony of the entity itself, not the testimony of an individual. A 30(b)(6) witness does not need to have personal knowledge over the topics. Instead, he or she testifies in a corporate capacity based on “information known or reasonably available to the organization.” Id.

13.          Absent leave of Court or an agreement between the parties, a party must provide a copy of all exhibits for a 30(b)(6) deposition to all other parties at least one week before the deposition.

14.          Parties cannot take depositions under Rule 30(b)(6) of government agencies acting in their enforcement capacity without leave of Court. For example, a party would need leave of Court to take a Rule 30(b)(6) deposition of the FTC when the FTC files suit to enforce the consumer-protection laws, or a 30(b)(6) deposition of the EEOC when the EEOC enforces the anti-discrimination laws. See SEC v. Buntrock, 217 F.R.D. 441 (N.D. Ill. 2003); SEC v. SBM Inv. Certificates, Inc., 2007 WL 609888 (D. Md. 2007); SEC v. Rosenfeld, 1997 WL 576021 (S.D.N.Y. 1997); SEC v. Morelli, 143 F.R.D. 42 (S.D.N.Y. 1992); EEOC v. Evans Fruit Co., Inc., 2012 WL 442025 (E.D. Wash. 2012); EEOC v. McCormick & Schmick’s Seafood Restaurants, Inc., 2010 WL 2572809 (D. Md. 2010); FTC v. U.S. Grant Resources, LLC, 2004 WL 1444951 (E.D. La. 2004). The government does not have first-hand knowledge of any facts when it acts in an enforcement capacity. Instead, the government relies on facts gathered during an investigation, often by lawyers. A deposition under Rule 30(b)(6) under those circumstances may raise work-product issues, among others, and may create more trouble than it is worth. This rule does not apply when the government is a defendant.

Scheduling, Time, and Breaks

15.          Counsel must cooperate in the scheduling of depositions. Counsel who serve deposition notices must make reasonable efforts to accommodate the schedules of the witness and other counsel. If the date proposed in a deposition notice is problematic for counsel or the witness, then the counsel or witness with the scheduling conflict must promptly propose several reasonable alternate dates. A failure to propose alternate dates within a reasonable time may be a waiver of the right to object to the date in the deposition notice.

16.          The seven-hour rule under the Federal Rules of Civil Procedure does not include breaks. “Preoccupation with timing is to be avoided.” See Fed. R. Civ. P. 30 advisory committee’s note to 2000 amendment.

Emergency motions must be “of such a nature that the delay” in hearing them “would cause serious and irreparable harm to one or more parties.” Local Rule 77.2 (emphasis added). Requests to set a hearing on an emergency motion shall be made to Judge Kness’s Courtroom Deputy, Enjoli Fletcher, with as much advance notice as possible. Unless the motion seeks an ex parte temporary restraining order under Rule 65(b)(1), parties must make all reasonable efforts to give actual notice to opposing counsel.

As do many _assets/_documents/_forms/_judges/ in the Northern District of Illinois, Judge Kness encourages attorneys and their clients to provide substantive speaking opportunities to less-experienced lawyers during any of the Court’s proceedings, including motion and status hearings, settlement conferences, claim-construction hearings, pretrial conferences, evidentiary hearings, sentencings, and trials. Although oral argument is not necessary for the Court to rule on most motions filed before it, the Court will consider scheduling oral argument if a party requests it and commits to entrusting the argument to a less-experienced lawyer. No party will be disadvantaged in any respect by a less-experienced lawyer making an argument. To that end, Judge Kness allows more than one attorney per side to speak during any proceeding. Lead attorneys may confer with the less-experienced lawyer to suggest additional argument or examination questions and may also, upon request for leave, interject as reasonably necessary to deliver additional argument or to conduct additional witness examination.

The parties must follow the following procedures governing experts, unless otherwise ordered by the Court:

            1.        A party must disclose all persons presenting testimony under Rule 702 of the Federal Rules of Evidence as required by Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure. See Musser v. Gentiva Health Servs., 356 F.3d 751, 756-58 (7th Cir. 2004).

            2.        A party must disclose all experts within the time limit set for disclosure of Rule 702 opinion witnesses (or experts) in the scheduling order or, in the absence of an order, within the time periods prescribed in Rule 26(a)(2)(C).

            3.        The Rule 26(a)(2)(A) disclosure must specifically designate the witness as a person who may give testimony under Rules 702, 703, or 705. Even if the witness is not subject to the report requirement of Rule 26(a)(2)(B), the Rule 26(a)(2)(A) identification disclosure must include a written statement containing all Rule 702 opinions to be offered by that witness and the bases for those opinions in such a manner as to permit the opposing party to consider whether to depose the witness, to challenge the witness’ qualifications or opinions under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), or to retain rebuttal opinion witnesses. See Musser, 356 F.3d at 757-58.

            4.        Please keep in mind that “[d]isclosing a person as a witness and disclosing a person as an expert witness are two distinct acts.” Musser, 356 F.3d at 757.

            5.        Rule 26(a)(2)(B) requires a written report from certain categories of witnesses – namely, witnesses who are retained or specially employed to provide expert testimony or employees of a party whose duties regularly include giving expert testimony. If a witness falls within the scope of Rule 26(a)(2)(B), the witness must comply fully with all the report requirements of that Rule.

            6.        A treating professional, including a physician, nurse, psychologist, or similarly situated witness, must be disclosed pursuant to Rule 26(a)(2)(A) in order to present testimony under Rule 702. See Musser, 356 F.3d at 756. A treating professional is not considered a retained expert for purposes of Rule 26(a)(2), and thus need not submit a report, if the treating professional’s testimony (a) is based on observations made during the course of treatment, (b) was not “acquired or developed in anticipation of litigation or for trial,” and (c) is based on personal knowledge. See Zurba v. United States, 202 F.R.D. 590, 591 (N.D. Ill. 2002). In other words, it is only when the treating physician gives opinions beyond the scope of the physician’s own observation and treatment that the physician is considered a “retained” expert for purposes of Rule 26(a)(2)’s report requirement. Id. at 592. Thus, the fact that a treating physician proposes to offer opinion testimony on prognosis, causation, or permanency of injuries does not automatically render the physician a retained expert for Rule 26(a)(2) purposes. Id. A report is required, however, if a treating physician’s proposed testimony—regardless of the specific subject of the testimony (i.e., prognosis, causation, permanency, etc.)—“goes beyond his personal involvement in the facts of the case and giv[es] an opinion formed because there is a lawsuit,” absent leave of Court based on “undue hardship.” Griffith v. Ne. Ill. Regional Commuter R.R., 233 F.R.D. 513, 518-519 (N.D. Ill. 2006).

            7.        A party must comply with Rule 26(a)(2) and this Court’s procedures set forth above before designating a Rule 702 opinion witness (or expert) as a trial witness in the final pretrial order.

            8.        Unless otherwise ordered by the Court, a party must file any motions challenging Rule 702 witnesses under Daubert at least 60 days before trial.

The Court will set all newly filed cases for an initial status hearing approximately 75 days after the filing of the complaint. The initial status hearing will be the scheduling conference as required by Rule 16(b) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 16(b); see also Local Rule 16.1 (“the initial status hearing shall be the scheduling conference referred to in Fed. R. Civ. P. 16”). The parties must meet and conduct a planning conference as required by Federal Rule of Civil Procedure 26(f). 

After conferring, the parties must submit two items to the Court.

First, the parties must file a Joint Initial Status Report, not to exceed seven pages, at least seven days before the initial status hearing. The Joint Initial Status Report is the “discovery plan” required by Rule 26(f). If defense counsel has not yet filed an appearance, plaintiff’s counsel should prepare the status report. The Joint Initial Status Report shall provide the information listed in the template found HERE.

Second, the parties must submit a Word version of a proposed scheduling order under Rule 16(b) to the Court’s proposed order mailbox, Proposed_Order_Kness@ilnd.uscourts.gov. The template for the proposed scheduling order is available HERE. At that point, the Court will adopt or modify the proposed plan, as necessary.

At the initial status hearing with the Court, 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. The Court may set a discovery cut-off date at the initial conference.

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

When proposing an injunction, please pay special attention to the text of Rule 65(d).

The Seventh Circuit requires an injunction to be on a separate document. See, e.g., MillerCoors LLC v. Anheuser-Busch Cos., LLC, 920 F.3d 922 (7th Cir. 2019); Auto Driveaway Franchise Sys., LLC v. Auto Driveaway Richmond, LLC, 928 F.3d 670, 676 (7th Cir. 2019) (“We interpret Rule 65(d)(1)(C) to require than an injunction must be embodied in a standalone separate document”); City of Chicago v. Sessions, 2018 WL 4268814, at *2 (7th Cir. Aug. 10, 2018). Do not include an injunction in the body of a proposed order that covers anything else. Every injunction should stand on its own.

An injunction must not “refer[] to the complaint or other document” when “describ[ing] in reasonable detail . . . the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1)(C). An injunction should not incorporate any other document by reference. See BankDirect Capital Finance, LLC v. Capital Premium Financing, Inc., 912 F.3d 1054, 1057 (7th Cir. 2019); DuPuy v. Samuels, 465 F.3d 757, 758 (7th Cir. 2006); MillerCoors, 920 F.3d at 922 (noting that Rule 65(d)(1)(C) “requires every injunction to be set forth without referring to any other document”).

Citations

If counsel cites to an unpublished opinion, the Court strongly prefers citations to Westlaw. It is not necessary to attach copies of unpublished opinions if they are available on Westlaw. Please attach copies of any cited authorities that are not available on Westlaw. 

Searchable Text

All electronically filed documents shall be made word searchable before being filed on ECF. For any filing of any kind (including exhibits in support of a motion or any Local Rule 56.1 Statement), counsel must run an OCR conversion on it before uploading it onto CM/ECF. To do this in Adobe, go to Tools, Text Recognition, In This File, and select All Pages. If you see the message, “Acrobat could not perform recognition (OCR) on this page because this page contains renderable text,” click “Ignore future errors in this document,” and click OK. The Court strongly encourages counsel to convert any word-processed document into a .pdf document by printing or publishing to .pdf, rather than manually scanning a paper copy into .pdf. 

Document Format

Motions to strike filings are disfavored. See generally Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir. 2006). Such motions most often serve primarily as vehicles for parties to expand the page limits for memoranda in support of their motions. Motions to strike filings almost always require the Court to decide significant issues (and, indeed, the underlying motion) on the merits and multiply the briefs (because the other side should be allowed to respond). Id. at 727. 

The Court is capable of discerning if a reply brief raises a new argument, or if a litigant has failed to comply with the requirements of Local Rule 56.1 (governing summary judgment). Such errors do not require supplemental motion practice.

If a party believes that the other side’s brief contains inaccurate facts or that the other side’s Local Rule 56.1 statement contains an unsupported assertion, then the complaining party should make that argument in the response or reply brief, or in the responsive 56.1 statement.

Motions to strike that are not within the limited boundaries established by Fed. R. Civ. P. 12(f) may be summarily denied.

Please do not file a “notice of filing” in federal court, as they are unnecessary and serve only to clutter the docket.

A notice of motion is a notice that sets a date and time for a hearing with the Court for a motion. A party must file a notice of motion for any motion, as provided in Local Rule 5.3.

***The foregoing requirement is suspended indefinitely by Judge Kness’s current motions policy, which is in effect due to the ongoing interruption of normal Court operations due to public health circumstances***

Proposed orders are not to be filed; rather, they are to be submitted to the Judge to consider, to modify, and, if appropriate, to enter electronically. For example, proposed orders such as agreed confidentiality orders require court approval before actually being given full effect. To prevent confusion, proposed orders must be attached to an email sent to the email address of the assigned judge (Proposed_Order_Kness@ilnd.uscourts.gov). The subject line of the email 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. All such documents must be submitted to the Court in Word format. Such proposed orders should also be served on all parties. Again, parties should not file proposed orders on the electronic docket; orders should only be filed by the Judge. 

Standing Order Governing Proposed Pretrial Orders (Civil Cases)

Motions

The Court believes that parties can and should work out most discovery disputes without Court intervention. The Court expects the parties to make a genuine, good-faith effort to resolve disagreements before filing a discovery motion. 

The Court will not hear or consider any discovery motion or non-dispositive dispute 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 compiled with Local Rule 37.2. Compliance with the Local Rules requires a good-faith effort to resolve discovery disputes, including communications that take place in person or by phone. The exchange of emails or letters will not normally be sufficient to comply with the Local Rules. Motions that do not comply with the Local Rules may be stricken.

If a party requests a meet-and-confer, the other party must respond promptly and participate in a meet-and-confer in a reasonable time.

If an impasse arises about the recovery of electronically stored information (ESI), no discovery motion may be filed unless the parties first meet and confer to determine whether the requested material can be retrieved and, if so, the most effective way of doing so. Such a conference must take place in person or by phone and must be attended by an IT representative of the party (or, for a putative class, an IT representative of plaintiffs’ counsel) that served the request and an IT representative of the party that received the request.

Motions to Dismiss

The pendency of a dispositive motion, such as a motion to dismiss, does not automatically cause discovery to be stayed.

Sequence of Discovery

Parties are reminded that there is no “order” in which discovery must occur. See Fed. R. Civ. P. 26(d)(3). One party’s failure or inability to respond to discovery will not excuse any other party’s non-compliance.

Boilerplate Objections

Objections to written discovery must state with specificity the grounds for objecting. See, e.g., Fed. R. Civ. P. 33(b)(4) (“The grounds for objecting to an interrogatory must be stated with specificity.”); Fed. R. Civ. P. 34(b)(2)(B) (“For each item or category, the response must . . . state with specificity the grounds for objecting to the request, including the reasons.”). That is, the objecting party must offer a particularized reason tailored to each request.

Boilerplate objections are inadequate and are to be disregarded. For example, a generic assertion that a discovery request is “overbroad” or “unduly burdensome”—without an accompanying explanation—is the same as not objecting at all.

Limit on the Number of Requests for Admission

In the interested of efficiency, the Court strongly encourages the court to engage in a settlement conference with the assigned magistrate judge. To the extent the parties request a settlement conference with Judge Kness, the Court follows the following procedures:

The Court believes the parties should fully explore and consider settlement at the earliest opportunity, which may allow the parties to avoid the substantial cost, expenditure of time, and stress that often accompany the litigation process. Even for those cases that cannot be resolved through settlement, early consideration of settlement can allow the parties to better understand their dispute and streamline the issues to be litigated.

The instructions below must be followed in preparing for the settlement conference. Any party who wishes to vary any of these procedures must make an appropriate request to the Court before the settlement conference.

          1.       Pre-conference Demand and Offer Letter Exchange. At least 7 business days before the settlement conference, the plaintiff shall submit a written itemization of damages and settlement demand to the defendant, with a detailed explanation of why the demand is appropriate (and list the names or the clients and lawyers who will attend the conference). No later than 3 business days before the settlement conference, the defendant shall submit a written offer to the plaintiff, with a detailed explanation of why the offer is appropriate (and list the names of the clients and lawyers who will attend the conference). If settlement is not reached through this process, the defendant shall email copies of both side’s letters to Judge Kness’s chambers on the third business day before the conference (email to Proposed_Order_Kness@ilnd.uscourts.gov). Do not file copies of these letters with the Clerk or on the docket.

          2.       Attendance: Parties with full and complete settlement authority must personally attend the conference. This means that if a party is an individual, that individual must personally attend; if a party is a corporation or governmental entity, a representative of who is authorized to negotiate and who has full settlement authority must personally attend; if a party requires approval by an insurer to settle, then a representative of the insurer who is authorized to negotiate and who has full settlement authority must attend. Having a client with authority available by telephone is not an acceptable alternative, except under exceptional circumstances and with advance permission of the Court.

          3.       Conference Format. The Court generally will follow a “mediation” format: a joint session with the Court in which each side makes a brief opening presentation to the other side, followed by private meetings by the Court with each side. The Court expects both the lawyers and the party representatives to be fully prepared to participate. The Court encourages all parties to keep an open mind to reassess their previous positions and to discover creative means for resolving the dispute.

          4.       Statements Inadmissible. Any statements made by any party or attorney during the settlement conference will be inadmissible at trial. That rule should encourage parties and attorneys to be frank and open in their discussions. The Court expects the parties to address each other with courtesy and respect.

          5.       Issues to be Discussed. Parties should be prepared to discuss the following at the settlement conference:

a. What are your goals in the litigation and what problems would you like to address in the settlement conference? What do you understand are the opposing side’s goals?

b. Do you understand the opposing side’s view of the case? What is wrong with their perception? What is right with their perception?

c. What are the points of factual and _assets/_documents/_forms/_legal agreement and disagreement between the parties?

d. Does settlement or further litigation better enable you to accomplish your goals?

e. Are there possibilities for a creative resolution of the dispute?

f. Are there outstanding lien holders or third parties who should be invited to participate in the settlement conference?

Before the settlement conference, counsel shall provide a copy of these instructions to the client and shall discuss the points contained herein with the client.

          6.       Other Information. Parties and their counsel should appear in Judge Kness’s courtroom on the date and time set for the settlement conference. In anticipation of a settlement, the parties should review and be prepared to complete the attached Settlement Checklist/Term Sheet at the conclusion of the settlement conference. The parties should also review the “Settlement Dismissal Orders” link on Judge Kness’s website for information on how to draft proposed dismissal orders.

Before submitting a proposed order of dismissal, counsel should review Seventh Circuit case law regarding the retention of federal jurisdiction to enforce the terms of a settlement agreement. See Blue Cross and Blue Shield Ass’n v. American Express Co., 467 F.3d 634, 636 (7th Cir. 2006); Shapo v. Engle, 463 F.3d 641, 646 (7th Cir. 2006). In general, Seventh Circuit decisions hold that dismissals “with prejudice” leave the Court without jurisdiction to enforce a settlement agreement. Accordingly, in most cases, the parties would be well advised to submit a proposed order that either (a) provides for dismissal with prejudice if the settlement terms have already been fulfilled (e.g., payment has been made), but make no reference to retention of jurisdiction; or (b) provides for the case to be “dismissed without prejudice with leave to reinstate on or before [date far enough in the future to fulfill all settlement terms]. Thereafter, the case shall be deemed, without further order of the Court, to be dismissed with prejudice.”

Motions for summary judgment and responses must comply with Local Rule 56.1, as well as the procedures outlined here. 

The statements of undisputed material facts and responses shall be filed separately from the memoranda of law and shall include the line, paragraph, or page number where the supporting material may be found in the record. Parties must make the supporting evidence easy to find.

Courtesy copies of exhibits to summary judgment motions and responses, if required (see the “Courtesy Copies” section of Judge Kness’s webpage), should be tabbed for easy access.

The Local Rules are not mere technicalities. The Court expects strict compliance with the Local Rules regarding summary judgment. Failure to comply with the Local Rules may result in the Court striking briefs, disregarding statements of fact, deeming statements of fact admitted, and denying summary judgment. See Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013); Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012).

The movant shall not file more than 80 statements of undisputed material facts without prior leave of Court. The respondent shall be limited to 40 statements of undisputed material facts absent prior leave of Court. In complex cases, the Court may request that the parties submit a timeline of events in addition to statements of undisputed material facts.

Persons requesting daily copy and/or realtime feed transcripts of a trial or other evidentiary hearing that may reasonably be expected to last more than one day should contact Judge Kness's court reporter, Nancy LaBella, at least five business days prior to the first day of such proceeding so that these services can be scheduled. A deposit may be required. All other transcript requests should be placed using the Court's online transcript order form, which can be found HERE. 

Ms. LaBella may be reached at Nancy_LaBella@ilnd.uscourts.gov or 312-435-6890.

Under Rule 41 of the Local Criminal Rules, any and all search warrants or seizure warrants related to a criminal case assigned to Judge Kness are to be brought to him for consideration, not to the duty magistrate judge, the designated magistrate judge, or the emergency judge.

Rule 41 of the Local Criminal Rules states in pertinent part:

LCrR41 Search Warrants

(a)  Submission of warrant applications. Except for matters that are reserved for the Chief Judge (for example, in LCrR50.2 (2) and LCrR6.1) and as provided in (b), applications for search warrants or seizure warrants must be submitted to the duty magistrate judge.

(b)  A district judge may issue a standing order that search warrants or seizure warrants related to a case assigned to that judge must be brought to that judge.