The Honorable Mark A. Kearney
Judge, United States District Court
Room 6613, U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
267-299-7680
Fax: 267-299-5023
[email protected]
POLICIES AND PROCEDURES (February 2026)
The Policies and Procedures (“Policies”) apply to all matters unless varied by Judge
Kearney’s Order as necessary on a case-by-case basis. The Policies are intended to answer a wide
variety of questions. To the extent counsel or a party has a question not addressed by these Policies,
telephone inquiries should be directed as appropriate to Courtroom Deputy Ulrike Bower at 267-
299-7688 or
[email protected] with a copy to
[email protected]
TABLE OF CONTENTS
I. Policies applying in all matters. .......................................................................................... 1
A. We permit correspondence in limited circumstances. ................................................ 1
B. Telephone inquiries and conferences as warranted .................................................... 1
C. No telephone communications from pro se parties ..................................................... 1
D. No communication with law clerks or interns ............................................................. 2
E. Electronic Case Filing (“ECF”) under Rule 5.1.2 is required of all counsel ............ 2
F. Courtesy copies of ECF filings shall be provided only as directed............................ 2
G. Required scrutiny of proposed sealed or redacted documents .................................. 2
H. Requirements for website references and artificial intelligence use ......................... 3
I. We encourage development of trial lawyers ................................................................ 3
J. Pro hac vice motions ...................................................................................................... 4
K. Local counsel’s continuing obligations......................................................................... 5
II. Initial steps in civil matters. ................................................................................................ 6
A. Rule 16 Conference and Rule 26(f) meeting are substantive obligations. ................ 6
E. Obligations for threshold motions. ............................................................................... 7
F. Prompt resolution of matters through ADR and settlement conferences. ............... 8
G. Motions to amend pleadings. ........................................................................................ 8
H. Amending pleadings as a matter of course. ................................................................. 8
I. Continuances, amendments, and extensions of scheduling. ....................................... 8
III. Discovery. .............................................................................................................................. 9
A. Discovery expectations................................................................................................... 9
B. Resolving discovery or scheduling disputes. ................................................................ 9
IV. Motion practice for non-discovery or non-scheduling issues in all matters. ................ 11
A. Proposed orders and motions. .................................................................................... 11
B. Must recite position of all parties absent a stipulation. ............................................ 11
C. Briefs/legal memoranda............................................................................................... 11
D. Post-trial motion procedure. ....................................................................................... 11
VI. Additional protocol for Rule 56 motions. ........................................................................ 12
A. Separate statements of material facts. ....................................................................... 12
B. Memoranda with a table of contents if warranted. .................................................. 12
C. Appendix. ...................................................................................................................... 12
D. Courtesy copy provided to Chambers........................................................................ 13
VII. Final pretrial proceedings. ................................................................................................ 13
A. Pretrial memoranda..................................................................................................... 13
B. Motions in limine. ......................................................................................................... 13
C. Final pretrial conference. ............................................................................................ 14
VIII. Injunctions. ......................................................................................................................... 14
IX. Class Action settlement best practices. ............................................................................ 14
X. Arbitration. ......................................................................................................................... 14
XI. Trial Procedure. ................................................................................................................. 14
A. Scheduling..................................................................................................................... 14
B. Courtroom technology. ................................................................................................ 15
C. Cases involving out-of-town parties or witnesses. ..................................................... 15
D. Jury selection in civil cases. ......................................................................................... 15
E. Courtroom protocol. .................................................................................................... 15
F. Note-taking by jurors. ................................................................................................. 16
G. Trial briefs. ................................................................................................................... 16
H. Examining witnesses out of sequence. ........................................................................ 16
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I. Opening statements and summations......................................................................... 16
J. Examination of witnesses or argument. ..................................................................... 16
K. Videotaped testimony. ................................................................................................. 16
L. Preparing, admitting, and delivering admitted trial exhibits to Chambers. .......... 16
M. Sidebar or evidentiary conference. ............................................................................. 17
N. Directed verdict motions. ............................................................................................ 17
O. Proposed jury instructions and verdict forms........................................................... 17
P. Proposed findings of fact and conclusions of law in non-jury cases........................ 17
Q. Unavailability of witness.............................................................................................. 18
R. Objections. .................................................................................................................... 18
XII. Jury deliberations. ............................................................................................................. 18
A. Written jury instructions. ........................................................................................... 18
B. Exhibits in the jury room. ........................................................................................... 18
C. Availability of counsel during deliberation. .............................................................. 18
D. Taking the verdict and special verdicts. .................................................................... 18
E. Polling the jury. ............................................................................................................ 18
F. Interviewing the jury. .................................................................................................. 19
XIII. Judge Kearney’s additional procedures in criminal cases. ............................................ 19
A. Motions practice in criminal cases. ............................................................................ 19
B. Trial continuances........................................................................................................ 19
C. Pretrial conferences. .................................................................................................... 19
D. Voir Dire. ...................................................................................................................... 20
E. Guilty pleas. .................................................................................................................. 20
F. Sentencing ..................................................................................................................... 21
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I. Policies applying in all matters.
A. We permit correspondence in limited circumstances.
We are governed by Fed. R. Civ. P. 7(b) and Fed. R. Crim. P. 47(a). Other than as listed
below or otherwise directed by Judge Kearney, a request for direction must be made through a
pleading, motion, application, or similar filing with service upon all parties. Requests for extension
of time to respond to a pleading or motion or a request for the extension of the dates in a scheduling
order must be made by motion or stipulation demonstrating good cause which can be reviewed
and ruled upon. Judge Kearney will not accept letter requests for extensions of time set by the
Federal or Local Rules or our scheduling Orders.
Counsel shall not send copies of correspondence among themselves to Judge Kearney.
Correspondence, not to exceed two pages, may be emailed, faxed, or mailed to Chambers copied
to all counsel and unrepresented parties only in the following instances:
1. Counsel are specifically requested by the Court to communicate
information by letter;
2. An uncontested request for an extension of sentencing;
3. A scheduling request based on an unanticipated and irreversible personal
matter concerning counsel, a party or counsel’s immediate family not warranting public access;
or,
4. A case, or portions of a case, settled.
This limited correspondence must include a specific and candid description of the situation
requiring Judge Kearney’s attention and the position of the opposing party. Correspondence may
be sent by email, fax, or mail to the Chambers’ Philadelphia address above.
We will not accept unsolicited communications unless pre-approved by Judge Kearney.
B. Telephone inquiries and conferences as warranted.
Judge Kearney may hold telephone conferences. Chambers will notify counsel of the date
and time for the telephone conference.
C. No telephone communications from pro se parties.
Telephone and fax communications by a pro se party are prohibited unless approved by
Judge Kearney beforehand and an ESR/Court Reporter is present. Pro se parties may not appear
for hearings by telephone unless permitted for good cause, such as incarcerated persons in civil
cases.
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D. No communication with law clerks or interns.
Counsel and parties are not permitted to communicate with the Judge’s law clerks or interns
on substantive or scheduling matters unless specifically directed by the Judge on a particular issue.
E. Electronic Case Filing (“ECF”) under Rule 5.1.2 is required of all counsel.
Counsel shall file all papers required to be filed under the Federal or Local Rules of Civil
and Criminal Procedure electronically through ECF.
F. Courtesy copies of ECF filings shall be provided only as directed.
Courtesy copies shall only be provided to Chambers for a filing over thirty-five pages and
as required under these Policies (e.g. Rule 56 papers) or otherwise requested by Chambers. The
courtesy copy shall be the ECF document with the ECF notation at the top of each page, unless
otherwise ordered. All courtesy copies are to be delivered to the Clerk’s Office to the attention of
Judge Kearney contemporaneous (as best as possible) with filing.
G. Required scrutiny of proposed sealed or redacted documents.
Confidentiality Orders. Counsel may not shift the burden of ensuring public access of filed
documents through a private confidentiality agreement where counsel require all privately
designated “confidential” or “highly confidential” documents to be filed under seal. Parties are
expected to redact personal identifiers consistent with Local Rules.
Judge Kearney will not enter a protective order on confidentiality during discovery unless
statutorily required but will enforce private confidentiality agreements as a matter of contract law
for good cause shown.
Sealed filings. Any party seeking to file documents under seal must comply with the
Court’s Standing Order when timely filing the motion to seal (under Section IV below) before
filing the substantive motion (unless impossible due to time exigencies) as narrowly as possible,
articulate good cause consistent with our Court of Appeals’ precedent, contemporaneously file the
sealed records under a “Notice of Sealed Documents in support of [requested relief]” by emailing
to
[email protected], and contemporaneously email the documents sought
to be sealed to our Chambers. Counsel must separately analyze the claimed need to preclude public
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access on a line-by-line basis under our Court of Appeals’ analysis in In re Avandia Marketing1
and guided by Chief Judge Connolly’s analysis in In re Storag Etzel GmbH.2
We may schedule in camera hearings to address motions to seal extensive materials where
trial counsel shall appear and show cause as to each line of material counsel deems precluding
public access if not done so before requiring a hearing.
H. Requirements for website references and artificial intelligence use.
Filings referencing a website shall attach a screenshot of the cited website reference as an
exhibit.
Parties and counsel may be subject to sanction should we find false representations
including artificial intelligence hallucinations under the Rules of Professional Conduct and Rules
of Civil and Criminal Procedure. See, e.g., Harvey v. Jenson, No. 25-6454, ECF 24 (E.D. Pa. Dec.
12, 2025); Lifetime Well LLC v. IBSpot.com Inc., No. 25-5135, 2026 WL 195644 (E.D. Pa. Jan.
26, 2026); Rosario v. Liberty Mut. Pers. Ins. Co., No. 26-276, 2026 WL 413438 (E.D. Pa. Feb. 13,
2026). Parties and counsel are on notice to double-check their citations and reliance on artificial
intelligence in a filing to ensure the arguments and citations to authority say what you represent to
the Court.
I. We encourage development of trial lawyers.
We recognize the importance of developing future generations of federal court trial
lawyers. We encourage trial counsel to assign court presentations to less experienced attorneys
unless we require lead counsel’s presence (e.g., Rule 16 and settlement conferences). We are aware
experienced trial counsel may not be directly involved in the day-to-day of the discovery process,
issues in dispositive motions, or with a particular witness or issue at trial. If warranted, we
encourage the parties and thoughtful trial counsel to allow well-prepared but less experienced
attorneys to present their client’s best position where, for example, the less experienced attorney
1
In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 924 F.3d 662 (3d Cir. 2019). The
party seeking to rebut the presumption of public access to a judicial document bears the burden of
showing “the interest in secrecy outweighs the presumption” and “the material is the kind of
information that courts will protect and that disclosure will work a clearly defined and serious
injury to the party seeking disclosure.” Id. at 672 (cleaned up). To meet Avandia’s standard, we
must be able to articulate “the compelling, countervailing interests to be protected,” make “specific
findings on the record concerning the effects of disclosure,” and “provide[ ] an opportunity for
interested third parties to be heard.” Id. at 672–73 (citation omitted). We must be specific in the
injury to be prevented by sealing, and conduct “careful factfinding and balancing of competing
interests” before the “strong presumption” of the public’s right to access can be overcome by the
“secrecy interests of private litigants.” Id. at 673 (citation omitted). A party’s private agreement
does not govern our obligation of ensuring public access.
2
No. 19-mc-209, 2020 WL 2949742 (D. Del. Mar. 25, 2020), adopted except for the First
Amendment analysis, 2020 WL 2915781 (D. Del. June 3, 2020).
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lived with the facts or drafted or contributed significantly to the briefing. If requested before an
argument, we may allow more experienced trial counsel to assist the less experienced attorney
arguing the motion, where appropriate during oral argument.
There are many different circumstances where it is not appropriate for a less experienced
attorney to solely present the client’s position, particularly where we require trial counsel’s
presence. Depending on the attorney-client relationship, strategy on court appearances may be the
client’s decision and we do not wish to interfere in the client’s decision. We draw no inference
from a party’s decision not to have a less experienced attorney present the position. Similarly, we
draw no inference about the importance of a particular position, or the merits of a party’s position,
from the party’s decision to have (or not to have) a less experienced attorney present the position.
We only wish to encourage the experienced members of this Court’s Bar and their clients to
develop their next generation of trial lawyers.
J. Pro hac vice motions.
We welcome attorneys with particular expertise in the issues before the Court in a certain
matter or experience with a client’s matters to represent clients strictly consistent with the Rules
of Professional Conduct and these Policies. Motions for pro hac vice admission should be made
as soon as possible. Thoughtful opposition to a motion for pro hac vice must be filed within one
business day of the filing of the motion.
The attorney moving for admission of an attorney pro hac vice must:
1. Be admitted to practice in Pennsylvania and in good standing before this
Court;
2. Earlier his/her/their appearance in the matter and confirms his/her/their
continuing obligations under Section I.K. of our Policies below;
3. Describe the reasons the client requires this lawyer’s special admission, i.e.,
what does the applicant offer which cannot be provided by the attorney admitted in our Court;
4. Recite the positions of all counsel regarding the motion.
5. Attach the affidavit of the attorney seeking admission pro hac vice swearing
as to:
a. Year and jurisdiction of each Bar admission as well as the lawyer’s
status i.e., active or inactive, in good standing, etc.;
b. Whether the attorney has ever been suspended from the practice of
law in any jurisdiction or received a public reprimand by the highest disciplinary authority of any
Bar in which the attorney has been a member;
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c. Reading and agreeing to be bound by the most recent edition of the
Pennsylvania Rules of Professional Conduct, this Court’s Local Rules, and these Policies as
amended; and,
d. Good faith assurance of fully advising counsel who moved for the
pro hac vice admission of the current status of the case for which pro hac vice status has been
granted and of all material developments in the case.
K. Local counsel’s continuing obligations.
The admission of counsel pro hac vice does not relieve associate local counsel and the
attorney moving the admission of responsibility for counsel admitted pro hac vice. Judge Kearney
requires local counsel sign all filings. While local counsel shall be available by phone and prepared
to substantively address fact and legal issues for every case, we also require local counsel to be
present in Court (or on the telephone with leave) for a presentation on patent/ANDA, class,
collective, qui tam, derivative, multi-party, criminal matters designated as complex or every case
designated on the Special Case Management track or transferred to our docket from the Multi
District Litigation Panel. We do not reschedule confirmed and attached trial dates based on
specially admitted counsel’s conflicts.
L. Remote conferences.
We may allow telephonic or video conferences for matters not involving pro se parties who
are not in custody. We require conferences involving pro se parties not in custody to be held in
the Courtroom unless excused based on extraordinary grounds such as a courthouse closure.
Participants in telephonic or video conferences and their agents may not record or
otherwise create an artificial intelligence summary of off-the-record proceedings consistent with
our practices in the Courtroom and the Court’s published Protocols for Remote Proceedings
(https://www.paed.uscourts.gov/sites/paed/files/documents/Protocols%20for%20Remote%20Pro
ceedings.pdf).
Counsel may timely request the proceeding be recorded by the Court if available based on
the timeliness of the request.
M. Pro se proceedings.
We require all scheduling conferences and hearings with pro se parties not in custody to
be held in the Courtroom unless excused by Judge Kearney for extraordinary reasons based on
Judge Kearney’s schedule
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II. Initial steps in civil matters.
A. Rule 16 Conference and Rule 26(f) meeting are substantive obligations.
The initial pretrial conference (see Fed. R. Civ. P. 16 and Local Rule 16.1) may be
scheduled shortly after a defendant has entered an appearance. Counsel should expect a substantive
discussion on the merits of claims and pleaded defenses, discussion of settlement, discovery
scheduling, and setting a date certain trial.
B. Rule 26(f) meeting and joint report.
Judge Kearney relies on counsel’s good faith compliance in all respects with Rule 26(f).
Parties should complete the Rule 26(f) meeting as soon as possible. This meeting is a meaningful
and substantive discussion to address prompt settlement positions, formulate the proposed
discovery plan, and discuss the parties’ factual and legal positions.
Pending motions will not excuse the requirements of holding the meeting and submitting
the plan. Parties who do not comply will have no input at the initial pretrial conference.
Unless waived for good cause, our scheduling Order will begin discovery and require the
parties to file a comprehensive joint report of the Rule 26(f) meeting at least one day before the
initial pretrial conference fully compliant with the “Report of Rule 26(f) Meeting” form provided
on the District’s web page: www.paed.uscourts.gov/judges-info/district-court-judges/mark-
kearney.
C. Additional disclosures in patent non-ANDA cases.
In patent non-ANDA cases, the comprehensive joint report of the Rule 26(f) meeting shall
include proposed dates for the exchange, in steps, of required information to plan for a
Markman hearing as soon as practicable under Fed. R. Civ. P. 1:
1. Plaintiff shall identify the accused product(s), including accused methods
and systems, and its damages model, as well as the asserted patent(s) that the accused product(s)
allegedly infringe(s). Plaintiff shall also produce the file history for each asserted patent;
2. Defendant shall produce core technical documents related to the accused
product(s), sufficient to show how the accused product(s) work(s), including but not limited to
non-publicly available operation manuals, product literature, schematics, and specifications.
Defendant shall also produce sales figures for the accused product(s);
3. Plaintiff shall produce an initial claim chart relating each known accused
product to the asserted claims each such product allegedly infringes;
4. Defendant shall produce its initial invalidity contentions for each asserted
claim, as well as the known related invalidating references;
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5. The exchange of final infringement contentions;
6. Finally supplement, among other items, the identification of all accused
products and of all invalidity references; and,
7. Date for Markman hearing and scope of Markman hearing.
D. Obligations for the Rule 16 conference.
The initial pretrial conference is a substantive discussion addressing, at a minimum: items
listed in Fed. R. Civ. P. 16 and Local Rule 16.1(b); completion of self-executing disclosures under
Fed. R. Civ. P. 26(a); a review of the required stipulated facts; disclosure of insurance coverage
and deductibles; requests for a Fed. R. Evid. 502(d) Order; status of pending discovery; the
preservation, production and cost allocation of electronically stored information; status of
settlement demands and offers and proposed timing of mediation; and, specific facts regarding
liability, damages and relief sought. Lead counsel must advise Judge Kearney of any conflict in
scheduling a trial beginning in four months after the Rule 16 Conference and thereafter. Judge
Kearney will issue a Scheduling Order shortly after the conclusion of the initial pretrial conference.
Absent compelling grounds provided in writing before the conference, counsel attending
the initial pretrial conference shall be designated as lead trial counsel. If lead counsel is excused
in advance of the conference, the attorney appearing must have access to lead counsel’s calendar
during the proceeding. Lead trial counsel shall be prepared to discuss settlement at the initial
pretrial conference, including having full authority from clients on settlement. Counsel may not
claim lack of authority to discuss settlement with opposing counsel and Judge Kearney unless the
client or carrier representative with full authority is present at the initial pretrial conference.
E. Obligations for threshold motions.
Parties seeking to move to dismiss, strike, remand, transfer, substitute parties, and other
threshold issues shall:
1. Confirm the movant meaningfully conferred in good faith with the
represented party (does not apply to pro se parties) subject to the anticipated motion including
specifically identifying the communications and shared resolution to resolve the issue particularly
on motions to dismiss based on the perceived inadequacy of the pleading or venue issues which
can often be readily resolved by an amended pleading or stipulated transfer or remand;
a. We interpret “meaningfully conferred” to include sharing the movant’s
arguments in summary fashion as well as citations to caselaw addressing each point expected to
be included in moving papers;
2. Be prepared to address the merits of a pending or anticipated threshold
motions at the initial pretrial conference, even if not fully briefed at that time; and,
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3. We remind incarcerated persons must provide sworn allegations confirming
they exhausted their internal grievance or administrative remedies before filing suit when
responding to a challenge for failure to exhaust. See Lauria v. C.O. Lieb, 152 F.3d 549 (3d Cir.
2025).
F. Prompt resolution of matters through ADR and settlement conferences.
To the extent counsel cannot resolve the case before or during the initial pretrial
conference, Judge Kearney will direct all parties and client representatives with full settlement
authority to meet as soon as possible for a settlement conference with either a United States
Magistrate Judge or private mediator. Counsel must comply with all requirements regarding
meaningful settlement efforts.
Counsel are reminded meaningful participation in an early alternative dispute resolution
(“ADR”) effort is strongly encouraged and will be discussed passim, including in the initial pretrial
conference. Counsel, familiar with the Court’s mediation program and Local Rule 53.3, will have
explored ADR feasibility, including court-annexed mediation, not only between themselves but
with their clients as well. As shown, the specific reason for any decision not to participate in a
form of early ADR shall be specifically detailed in the Rule 26(f) report.
G. Motions to amend pleadings.
A motion to amend a pleading shall: identify all parties’ positions on the proposed
amendments and attach the proposed amended pleading either blacklined or highlighted solely to
show the change in the pleading.
H. Amending pleadings as a matter of course.
A party filing an amended pleading as a matter of course under Fed. R. Civ. P. 15(a)(1)
must attach as an exhibit a blacklined or highlighted copy of the pleading solely to show the
changes in the pleading.
I. Continuances, amendments, and extensions of scheduling.
Unless there is demonstrated good cause in writing to justify a change, the parties are
expected to adhere to the schedule contained in Orders setting obligations or, absent an Order, the
default dates in the Federal or Local Rules. A request for an extension or continuance of the trial
date will not be granted absent extraordinary circumstances.
Stipulations. Judge Kearney may approve a timely stipulation for a continuance or
extension if the continuance or extension upon a showing of good cause and if it does not affect
the trial date.
Contested scheduling. If a non-incarcerated party opposes a continuance or extension, the
movant may move under Section III.B below identifying the basis for the continuance or extension
and detail the positions of other parties with a proposed order.
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III. Discovery.
The Federal and Local Rules of Civil Procedure call for voluntary, cooperative discovery
in a timely manner. In 2010, the Judicial Conference Advisory Committee on Civil Rules
sponsored a symposium on civil litigation culminating in the 2015 amendment to the Federal Rules
of Civil Procedure. In his 2015 Year-End Report on the Federal Judiciary, Chief Justice Roberts
highlighted these amendments and suggested both judges and practitioners “must take to heart”
the change to Rule 1: the Civil Rules “should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and inexpensive determination of every action and
proceeding.”3 The information required to be disclosed under Fed. R. Civ. P. 26(a) is required to
be exchanged no later than seven days after the date of the Order scheduling the Rule 16
conference. The parties and Counsel are expected to act in accordance with both the letter and the
spirit of the Rules. The parties should be familiar with Guidelines and Best Practices for
Implementing the 2015 Discovery Amendments Concerning Proportionality (Third Edition)
published by the Bolch Judicial Institute (formerly the Duke Law Judicial Studies Center)
https://scholarship.law.duke.edu/bolch/.
A. Discovery expectations.
Absent demonstrated good cause in a complex case, the parties should expect discovery to
be complete after ninety days from the initial Order beginning discovery. If not done already, the
parties are required to commence core party written discovery upon Order and immediately upon
receipt of notice of the date of the Rule 16 conference unless stayed by statute or order. Core party
written discovery includes, among other efforts: document requests; admissions; and
interrogatories. It does not include third-party discovery or depositions before the initial scheduling
conference unless specifically ordered for good cause. Counsel will be required to report on the
progress of core party written discovery at the initial pretrial conference.
It is expected the parties will reach an agreement on conducting electronic discovery.
Absent an agreement before the initial pretrial conference, Judge Kearney will apply our Order
incorporating default standards which should be reviewed at the District’s web page under Judge
Kearney’s information.
B. Resolving discovery or scheduling disputes.
Counsel will proceed in discovery in a cooperative manner consistent with their
professional obligations including full disclosure. If a discovery dispute cannot be resolved, Judge
Kearney expects the Local Rule 26.1(f) certification will be substantive, specific, and meaningful
including describing the opposing party’s position. For example, it is not sufficient to certify
“counsel can’t reach opposing counsel”; “reasonable efforts have been made but were
unsuccessful”; “counsel have conferred in good faith”; “counsel repeatedly conferred with
opposing counsel” or similar generalities. See, e.g., Naviant Mktg. Sols., Inc. v. Larry Tucker, Inc.,
339 F.3d 180, 186 (3d Cir. 2003); Evans v. Am. Honda Motors Co., Inc., No. 00-2061, 2003 WL
3
https://www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf (emphasis in
original).
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22844186 at *1–2 (E.D. Pa. Nov. 26, 2003). Failure to include a Local Rule 26.1(f) certification
or insufficient certification may result in summary denial without substantive consideration.
1. Limited discovery and all scheduling disputes resolved by short motion.
Judge Kearney will promptly consider a short motion of three pages or less, double-spaced
twelve-point font, with an attached proposed order seeking to enforce or excuse timely and full
compliance with discovery and scheduling obligations under the Federal Rules and Local Rule
26.1(g), these Policies, and our Orders. The parties may not file a memorandum of law absent
leave. Judge Kearney may resolve the issue before a response unless opposing counsel advises
Chambers, by email to Chambers or letter faxed within twenty-four hours of filing, noticing their
intent to file a response of three pages or less within forty-eight hours of the motion filing. A
response due on a weekend or federal holiday is due by Noon EST on the next succeeding business
day. Counsel seeking to file replies or longer motions or responses must move for relief and obtain
leave to do so before filing. No reply may be filed without leave. The motion does not need to be
in a numbered paragraph format.
2. Discovery motion practice.
A discovery motion unable to be presented in three pages or less may be presented in a
motion not exceeding seven pages, double-spaced twelve-point font, along with a proposed order.
The parties may not file a memorandum of law absent leave. Absent an Order, a response may be
filed within three days, also limited to seven pages, double-spaced twelve-point font. A response
due on a weekend or federal holiday is due by Noon EST on the next succeeding business day.
Counsel seeking to file replies or longer motions or responses must move for relief and obtain
leave to do so before filing. No reply may be filed without leave. The motion does not need to be
in a numbered paragraph format.
3. Discovery motions involving non-party witnesses.
A party seeking an order compelling discovery compliance from a non-party must attach a
certificate of service to the discovery motion describing their simultaneous service of the motion
by email, hand delivery, or fax upon the non-party possibly subject to the motion and, in a cover
letter, direct the non-party to these Policies on the Court’s website and the obligation to timely
respond. Non-parties served with motions may respond within three days of service, unless
otherwise ordered. A response from a non-party due on a weekend or federal holiday is due by
Noon EST on the next succeeding business day.
4. Deposition conduct.
As in trial, we do not permit speaking objections or coaching the witness. Where warranted,
Judge Kearney will allow telephone conferences to resolve disputes during depositions where the
deposition would otherwise have to be adjourned. Stopping or “walking out” of a deposition is
strongly disfavored, and counsel should not do so before seeking direction from Judge Kearney,
mindful the parties’ time and expense should not be lost due to a discovery dispute experienced
counsel in this Court can usually resolve without loss of time or Court direction. Continued issues
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in deposition may require appointment of a Rule 53 Master to attend and direct deposition concerns
at her normal hourly rates after notice to the parties.
IV. Motion practice for non-discovery or non-scheduling issues in all matters.
A. Proposed orders and motions.
All grounds for relief must be set forth in a single, comprehensive motion, accompanied
by a proposed order and an attached memorandum. The proposed order should specifically refer
to the motion, docket filing number, and specific basis for requested relief. The motion is limited
to five pages of double-spaced twelve-point font and is analogous to a Summary of Argument
which also details the requested relief. Parties opposing the motion must attach a proposed order
referring to the motion, docket filing number, and specific basis for denying the requested relief.
B. Must recite position of all parties absent a stipulation.
Counsel seeking relief in all matters other than under Rule of Civil Procedure 56 without a
stipulation of all parties, including challenging the admissibility of expert or fact evidence, shall
comply with the obligations above in II.B. and provide a meaningful fulsome description of the
opposition to the requested relief as part of the motion. Failure to meaningfully confer consistent
with II.E. above and then recite all parties’ positions in the motion may result in summary denial
of the requested relief.
C. Briefs/legal memoranda.
Memoranda filed in support of, or in opposition to, a motion is limited to twenty pages of
double-spaced twelve-point font. Reply briefs are not required and Judge Kearney may rule before
filing of reply briefs if warranted. Reply briefs without a proposed order are permitted without
leave if filed and served within seven days of the date a non-moving party files its Opposition,
may not exceed ten pages, and must be limited to issues newly raised in the Opposition. Briefs in
excess of these page limits and sur-reply briefs are not permitted unless leave is granted upon
motion.
D. Post-trial motion procedure.
A party seeking to challenge trial and pretrial rulings through a timely post-trial motion
must strictly comply with Federal Rules of Civil and Criminal Procedure 59 and 60 and with Local
Rule 7.1(e) requiring ordering and paying a deposit for the trial transcript required by the court
reporter within fourteen days of filing any post-trial motion unless Judge Kearney excuses this
requirement for good cause.
Upon showing good cause based on a need for the transcript to brief the post-trial issues,
Judge Kearney may allow the movant to file the memorandum not exceeding twenty-five pages in
support of post-trial relief within thirty days of the receipt of the transcript.
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All memoranda raising more than two legal arguments shall include a Table of Contents
(but no table of citations) which is not included in the maximum twenty-five pages of memoranda.
VI. Additional protocol for Rule 56 motions.
A. Separate statements of material facts.
Any motion filed under Fed. R. Civ. P. 56 shall include a separately filed Statement of
Undisputed Material Facts which details, in numbered paragraphs, the material facts the moving
party contends are undisputed and entitle the movant to judgment as a matter of law. Only those
facts which bear on dispositive material issues shall be included in the Statement of Undisputed
Facts. Opposition to a motion for summary judgment shall include a separate filing of a statement
of material facts, responding to the numbered paragraphs in the movant’s Statement of Undisputed
Facts, which the respondent contends present genuine issues for trial. The responding party also
shall set forth, in separate numbered paragraphs, any additional facts which the respondent
contends preclude summary judgment.
Statements of material facts in support of or in opposition to a motion for summary
judgment shall include specific and not general references to the parts of the record supporting
each of the statements. Each stated fact shall cite the source relied upon, including the page of any
document or line and page number of any deposition to which reference is made.
B. Memoranda with a table of contents if warranted.
Memoranda in support of, or opposing, a Rule 56 motion is limited to twenty-five pages of
text, double-spaced, twelve-point font attached to the Motion with a Table of Contents (not
included in the maximum twenty-five pages) if the party raises more than two arguments.
C. Appendix.
Upon filing, the movant(s) shall also file a separate appendix of all exhibits or its affidavits
which may relate to the issues raised in the motion. On all cross-motions under Rule 56, the cross-
movants must consult before filing to prepare a single joint appendix. All pages of the appendix
shall be consecutively “Bates stamped” and referenced in the motions and briefs by the Bates
number assigned each page. For example, “1a, 2a, 3a, etc.” The appendix shall include a table of
contents. The movant shall make every effort to include all necessary exhibits in the appendix,
anticipating the respondent’s necessary citations to the fullest good faith extent possible. Should it
become necessary for the non-moving party to submit affidavits or additional exhibits, however,
it may do so in a respondent’s appendix filed with its Opposition. Any additions to the movant’s
appendix shall also be consecutively Bates-stamped, beginning at the page number where the
movant’s appendix ended, and shall include a table of contents. Judge Kearney will not consider
material not included in the appendix required by this Policy.
Failure of the movant to follow this procedure in all respects may result in the denial of the
motion without prejudice to be renewed at trial. Respondent’s failure to comply in all respects may
result in the Court’s considering the motion as uncontested.
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We remind incarcerated persons they must provide sworn allegations confirming they
exhausted their internal grievance or administrative remedies before filing suit when responding
to a challenge for failure to exhaust. See Lauria v. Lieb, 152 F.4th 549 (3d Cir. 2025).
D. Courtesy copy provided to Chambers.
The parties shall provide Chambers with one courtesy copy of all Rule 56 submissions by
overnight mail or hand delivery to the Clerk’s office to the attention of Judge Kearney within one
business day of filing. Counsel shall provide appendices in a searchable format. The parties shall
provide copies only of the filed document noted with the ECF document number on each page
confirming filing of the entire courtesy copy.
VII. Final pretrial proceedings.
A. Pretrial memoranda.
Unless otherwise ordered by Judge Kearney, the parties shall prepare simultaneous pretrial
memoranda meeting the requirements of Local Rule 16.1(c), and also include:
1. All stipulations of counsel;
2. Attached highlighted deposition testimony (including videotaped
deposition testimony) of admissions or unavailable witnesses which the party intends to offer
during its case-in-chief. The pretrial statement should include citations to page and line number;
3. The substance of the testimony of each witness. Identifying a witness as
offering testimony on liability and/or damages without specifics is insufficient; and,
4. A schedule with description of all proffered exhibits.
B. Motions in limine.
Judge Kearney expects counsel attempted to resolve objections to exhibits and testimony
before the motions in limine deadlines, leaving only those objections the parties could not resolve.
To the extent there are unresolved evidentiary issues, counsel should anticipate the Scheduling
Order will require motions in limine be filed after the contemporaneous exchange of pretrial
memoranda, with a reply due before the pretrial conference. Counsel seeking to preclude
admission of specific exhibits based on evidentiary objections shall provide Chambers two copies
of the contested exhibits (by hand delivery to the Clerk of Court if exceeds ten pages or by email
if less than ten pages) contemporaneous with moving in limine on the challenged exhibits.
Hearings or arguments challenging expert witness competency or necessity, upon request, will be
scheduled at or before the final pretrial conference. Responses to motions in limine do not need to
answer each allegation as in state court practice. Oppositions shall be in memoranda form.
Absent an Order, parties may file up to five motions in limine grouped by evidentiary review
(e.g. hearsay, expert, privilege, competence, etc.)
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C. Final pretrial conference.
Sidebar conferences and objections to evidence which should have been anticipated will
be strongly discouraged at trial. Consequently, one of the goals of the final pretrial conference is
to resolve all evidentiary issues to avoid delay at trial and to provide counsel with advance notice
of evidentiary requirements. Counsel should expect rulings on outstanding motions before, at, or
shortly after, the final pretrial conference. In complex cases, counsel should be prepared to discuss
presentation of evidence in terms of hours allocated to their case in chief, defense, and rebuttal.
VIII. Injunctions.
Judge Kearney attempts to hold a prompt conference with counsel seeking and defending
requests for temporary restraining orders and preliminary injunctions following an affidavit of
service, unless extraordinary imminent harm. Judge Kearney usually handles filed motions for
expedited discovery by conference when scheduling the hearing. Judge Kearney expects a party
seeking pretrial injunctive relief is prepared to imminently move to a hearing within a month. If
not ready for an imminent hearing, the party may seek expedited discovery and Judge Kearney
will then set the pretrial injunction hearing.
IX. Class Action settlement best practices.
Parties seeking or objecting to an order settling a case on a class basis under Fed. R. Civ.
P. 23 should fully address their positions on the best practices for implementing the 2018
Amendments to Rule 23, including those described at
https://judicature.duke.edu/articles/guidance-on-new-rule-23-class-action-settlement-
provisions/ with the executive summary: Guidance on New Rule 23 Class Action Settlement
Provisions, 102 JUDICATURE, no. 3, Fall/Winter 2018, at 15–21.
X. Arbitration.
Judge Kearney may issue Scheduling Orders in arbitration track cases. Judge Kearney may
retain an arbitration case for trial. The parties are expected to complete all discovery and resolve
all dispositive motions before the arbitration hearing. Upon demand for trial de novo from an
arbitration award, Judge Kearney will issue a Scheduling Order setting the date for trial to occur
within sixty days of the appeal at the earliest date available to the Court. Neither discovery nor
dispositive motions will be allowed after the arbitration hearing absent compelling cause.
XI. Trial Procedure.
A. Scheduling.
The date for final pretrial memoranda, trial motions, final pretrial conference, and trial will
be set in the Order following the initial pretrial conference. Once a case is listed for trial, counsel,
parties, and witnesses are attached to start trial on the date ordered. Counsel must advise Chambers
of any irreversible personal conflicts arising after the scheduling Order as soon as possible.
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B. Courtroom technology.
Judge Kearney holds court in Courtroom 6-B, which is not an electronic courtroom. Parties
are responsible for arranging and providing all electronic technology they wish to bring for trial.
Any party planning to use such equipment must submit a letter to Chambers, as early as possible
and copied to all counsel, but no later than one week before trial, identifying the equipment it will
use at trial. Any equipment counsel wishes to have brought in for trial must be set up and tested
before jury selection. Parties should contact Courtroom Deputy Ulrike Bower (267-299-7688)
before trial to arrange a time to set up and test electronic equipment in Courtroom 6-B and for
permission to bring in the equipment through courthouse security.
C. Cases involving out-of-town parties or witnesses.
Judge Kearney schedules the trial of cases involving out-of-town counsel, parties, or
witnesses in the same manner as all other cases. Counsel is responsible for the timely scheduling
of witnesses to maximize the jury’s time.
D. Jury selection in civil cases.
After Judge Kearney’s brief introduction to the general nature of the case and standard
disqualification questions, Judge Kearney will conduct voir dire, with specific approved follow-
up questions from counsel. Judge Kearney will then entertain cause and hardship strikes.
Counsel will then exercise peremptory challenges by alternate strikes, plaintiff first, until
each side has stricken three potential jurors or opts not to use any or all of their strikes.
After consultation with counsel based on length of trial, Judge Kearney will typically seat
eight jurors in a civil case.
E. Courtroom protocol.
Parties may examine witnesses from the lectern, from counsel table, or within hearing
distance of the ESR operator or court reporter but not within ten feet of the witnesses. Counsel
shall seek permission before approaching witnesses, as warranted. In addition, counsel will direct
all comments to Judge Kearney or to the witness under examination and not to other counsel or to
the jury.
Co-counsel and the parties may not talk to each other or distract the presentation of
evidence or argument. Trial counsel shall instruct persons from their offices attending trial in the
gallery to not speak in the public courtroom while Judge Kearney or the jury is present as trial
counsel should be mindful of waiving privileges or of the effect statements overheard by the public
including witnesses, jurors, or members of their families regarding the adversary process may
affect the fact-finding process.
Judge Kearney may require counsel to disclose upcoming witnesses at least one day before
the anticipated testimony when warranted to ensure efficient presentation of evidence.
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F. Note-taking by jurors.
Judge Kearney may permit jurors to take notes.
G. Trial briefs.
Parties may submit a trial brief only if requested by Judge Kearney.
H. Examining witnesses out of sequence.
Judge Kearney will permit counsel to examine his/her own witnesses out of turn for the
convenience of a witness.
I. Opening statements and summations.
In trials before a jury, Judge Kearney limits opening statements to no more than thirty
minutes and closing jury arguments to no more than one hour per side (including rebuttal for
Plaintiff) absent leave upon a showing of good cause in a complex matter.
Judge Kearney often waives opening statements and closing arguments in a non-jury trial.
J. Examination of witnesses or argument.
Only one attorney for each side may examine the same witness or address the jury during
the opening statement or summation.
Counsel may not confer with a witness once sworn during the balance of their testimony
except for logistics as to the courtroom and confirming timing of testimony absent Judge
Kearney’s approval upon a showing a good cause.
K. Videotaped testimony.
Videotaped testimony should begin with the witness being sworn. After Judge Kearney
rules on any objections, counsel must edit the testimony before offering the videotaped testimony
at trial.
L. Preparing, admitting, and delivering admitted trial exhibits to Chambers.
The parties will prepare a joint exhibit book with all exhibits counsel may use at trial based
on the rulings along with a schedule of exhibits. Unless otherwise agreed by the parties, the exhibits
will be presented in chronological order with the first document representing the oldest dated
document. Counsel should provide a copy for the witness which may be provided to the jury during
deliberations if requested. Unless all exhibits are shown electronically, Counsel must deliver two
copies of the joint exhibit book for Judge Kearney at voir dire. The cost of producing the exhibit
book(s) will be equally shared per capita upon all parties, subject to modification if abused.
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Motions to admit exhibits will be considered at the close of a party’s case-in-chief and not
before. As the evidentiary issues were addressed before or during the final pretrial conference, the
parties should expect this short motion to be promptly resolved.
Plaintiff’s counsel shall, unless excused for good cause, email an electronic copy of all
admitted exhibits to our Chambers email address (or provide on a disc) before the jury returns with
a verdict. We will not retain hard copies and binders of exhibits and counsel must provide an
electronic version of the admitted exhibits before the verdict to ensure we preserve exhibits for
post-trial review.
M. Sidebar or evidentiary conference.
Counsel must confer privately to resolve any unanticipated evidentiary issues which may
arise during trial. If unsuccessful in resolving the issues, counsel should only bring a matter to the
Courtroom Deputy’s attention at the beginning of the day or during an appropriate break when the
jury is not present. All evidentiary conferences in the courtroom are on the record.
N. Directed verdict motions.
Motions for judgment as a matter of law in jury trials and motions for an involuntary
dismissal in non-jury trials may be filed but may also be presented orally.
O. Proposed jury instructions and verdict forms.
The Scheduling Order will note the date on which the parties shall file proposed jury
instructions on substantive issues unique to your matter, along with proposed verdict forms or
special interrogatories to the jury.
In submitting proposed points for charge, the parties are directed to the Model Civil Jury
Instructions (available at http://www.ca3.uscourts.gov/model-jury-instructions).Where
applicable, Judge Kearney will use the Model Instructions to instruct the jury. In submitting points
for charge based on the Model Instructions, however, the parties should tailor the proposed
instructions to the specific facts of the case.
Proposed jury instructions, separately numbered, shall include a table of contents and be
submitted on a separate sheet of paper, double-spaced, with accurate quotes from, and pinpoint
citations to cases and pattern jury instructions where appropriate. The parties shall also provide by
email to Chambers the proposed instructions in Microsoft Word format. All objections to jury
instructions shall be filed in one written motion.
P. Proposed findings of fact and conclusions of law in non-jury cases.
Judge Kearney may require counsel timely file proposed findings of fact and conclusions
of law in non-jury cases. Counsel should prepare and pay for prompt transcripts. A schedule for
the submission of findings/conclusions will be addressed at the conclusion of trial.
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Q. Unavailability of witness.
If a witness is unavailable at the time of trial, Judge Kearney expects an oral or videotaped
deposition to be used at trial for that witness, whether the witness is a party, a non-party, or an
expert. The unavailability of such witness will not be a ground to delay the commencement or
progress of trial.
R. Objections.
Judge Kearney does not permit speaking objections. Objections must be made by reciting
the appropriate rule number or a one-word basis.
XII. Jury deliberations.
A. Written jury instructions.
If requested by the jury, Judge Kearney will give the jury a copy of the complete written
jury instructions provided to them in the jury charge.
B. Exhibits in the jury room.
After the jury has been instructed and taken to the jury room to begin deliberations, Judge
Kearney and counsel will confirm the admissible exhibits from the joint exhibit book(s) to be
presented to the jury for its consideration during deliberations if the jury requests.
Judge Kearney will forward requested admitted exhibits to the jury regardless of whether
counsel published the exhibits during trial.
C. Availability of counsel during deliberation.
Unless excused by Judge Kearney, trial counsel must remain in the courthouse during jury
deliberations with their cell phone. Counsel are expected to return to the courtroom within ten
minutes after receiving a call from the Courtroom Deputy.
D. Taking the verdict and special verdicts.
Judge Kearney usually submits interrogatories to the jury after discussion with the parties.
The Courtroom Deputy will take the verdict in the presence of the Court, counsel, and the parties.
E. Polling the jury.
Judge Kearney will poll the jury upon counsel’s request.
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F. Interviewing the jury.
Judge Kearney will allow counsel to talk to jurors following the verdict but will instruct
the jurors they are not required to talk to counsel or any person purporting to represent counsel.
XIII. Judge Kearney’s additional procedures in criminal cases.
We apply the Policies detailed above to the extent applicable in criminal cases including
for pro hac vice and other motions and trial procedures and specifically including the obligations
as to Motions and Memoranda and to meaningfully confer with opposing counsel on requested
relief before moving for relief in Section IV.B. (incorporating obligations in II.B).
Judge Kearney also requires in criminal cases:
A. Motions practice in criminal cases.
All pretrial motions – including motions in limine and any motions challenging the
indictment, seeking suppression of evidence, or raising dispositive matters – must be filed in
accord with the deadline set forth in the scheduling order and represent the position of all parties
on the requested relief. Upon filing a motion, the parties shall advise Judge Kearney whether they
intend to present testimony in support of or in opposition to the motion and the expected duration
of any such testimony so Judge Kearney can schedule a hearing, if necessary. Judge Kearney will
generally permit oral argument in criminal matters on substantive motions upon request.
B. Trial continuances.
Any request for a continuance must be filed no later than fourteen days in advance of the
scheduled trial date. Requests for a continuance must be filed as a motion stating the reasons for
the request, the position of the other side, the amount of time sought, and existing conflicts
potentially impacting scheduling of a new trial date. Any such motion must be accompanied by
the form of consent to continuance signed by the defendant, as provided by Judge Kearney after
receipt of the motion and proposed order which, if approved by Judge Kearney, would grant the
relief sought by the motion. The proposed form of order must be consistent with the requirements
of the Speedy Trial Act, 18 U.S.C. § 3161(h)(8), and must include a proposed finding explaining
in reasonable detail why the ends of justice served by granting the requested continuance outweigh
the best interest of the public and the defendant in a speedy trial.
Continuances are strongly discouraged, and, if multiple continuances are sought, counsel
may be required to appear in person to argue the matter.
C. Pretrial conferences.
Judge Kearney does not generally hold telephone conferences with counsel in criminal
cases, unless counsel specifically requests one or Judge Kearney finds a conference is appropriate.
The Courtroom Deputy handles scheduling of criminal matters. A final pretrial conference may
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address pending motions, and issues arising from the review of filed proposed voir dire, jury
instructions, and jury verdict.
D. Voir Dire.
Judge Kearney will conduct the initial voir dire regarding hardships, the general suitability
of the jurors, etc.
E. Guilty pleas.
1. Before a defendant offers a guilty plea, counsel must complete the guilty
plea memorandum, guilty plea statement, and acknowledgement of rights and review those
documents with the defendant. Counsel must also provide copies of those documents to Judge
Kearney.
2. The guilty plea agreement must state whether the plea is a general plea of
guilty, a conditional plea, or a plea of nolo contendere. The guilty plea agreement also must
disclose to the defendant and Judge Kearney whether the plea is entered under Federal Rule of
Criminal Procedure 11(c)(1)(A), (B) or (C), relating to the obligation of the United States
regarding other charges under subsection (A), a non-binding sentencing recommendation under
subsection (B), or a binding sentencing recommendation under subsection (C).
3. The parties seeking approval of a plea agreement under Federal Rule of
Criminal Procedure 11(c)(1)(A), (B) or (C):
a. Are strongly encouraged to identify a range of months for
incarceration and supervised release rather than a specific term of months to allow for fair
application all the section 3553 factors and compliance with federal sentencing policy; and,
b. Must be mindful Judge Kearney may accept the plea agreement but
will defer accepting the Rule 11(c)(1) recommendation as to a proposed range for sentencing until
after study of the presentence investigation report and possibly reviewing evidence at the
sentencing hearing absent extraordinary grounds in a straightforward fact presentation and
application of the guidelines.
4. The United States must submit a guilty plea memorandum at least two days
prior to the change of plea hearing. The memorandum shall include the elements of each offense
to which the defendant is pleading guilty and legal citations for the elements, the maximum
statutory penalties for each offense, the terms of any plea agreement and the factual basis for the
plea. The change of plea memorandum shall be provided in Microsoft Word Format by email to
[email protected].
5. If an agreement has been reached to request Judge Kearney set an expedited
sentencing, the United States must notify Chambers and the probation office at least two days prior
to the change of plea hearing.
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F. Sentencing
1. Sentencing will be scheduled on the day Judge Kearney accepts a
defendant’s guilty plea or after a defendant is convicted at trial. Sentencing will generally occur
approximately one hundred and ten (110) days after a guilty plea or trial. Sentencing will be
continued for good cause only.
2. To avoid delay in sentencing, all objections to the Presentence Investigation
Report must be sent to the probation officer in advance of sentencing. In no event shall counsel
raise objections for the first time in a sentencing memorandum.
3. Counsel must file sentencing motions and supporting memoranda at least
seven days prior to the scheduled sentencing date, and any response thereto must be filed at least
three days prior to the scheduled sentencing date. The memorandum must set forth any legal
authority relied upon by the party. No replies may be filed without leave.
4. Sentencing memoranda (exclusive of motions), by both the United States
and the defense must be filed no later than seven days before the scheduled sentencing date, and
any response thereto must be filed at least three days prior to the scheduled sentencing date.
Counsel shall serve a copy on the United States Probation Office.
5. Counsel shall provide all character letters by email at least three days
before sentencing to
[email protected].
6. If a defendant may be responsible for restitution, the United States must
submit sufficient information in its sentencing memorandum to enable Judge Kearney to determine
entitlement, the name and the address of each victim, the amount of loss for each victim, and
documentary support for each amount. If liability for restitution is joint and several, the United
States shall itemize the restitution amount for which each defendant may be responsible.
7. Pre-Sentence Investigation Reports and Sentencing Memoranda shall also
be promptly delivered to chambers in Microsoft Word Format by email to
[email protected].
For any civil or criminal litigation issues not addressed above, please consult the Local Rules
of Civil and Criminal Procedure for the Eastern District of Pennsylvania, available at
http://www.paed.uscourts.gov
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