Judge Donald L. Cabell

Born 1960 in Mount Clemens, Michigan

Federal Judicial Service

Magistrate Judge, U.S. District Court, District of Massachusetts.

First appointed to the Court January 21, 2015.

Education

University of Massachusetts/Amherst, cum laude, B.A., 1986
Northeastern University School of Law, J.D., 1991

Courthouse

Boston Courthouse

John Joseph Moakley U.S. Courthouse
1 Courthouse Way, Suite 2300
Boston, Massachusetts 02210

Courtroom

23, 7th floor

John J. Moakley Federal Courthouse - Boston, MA
John J. Moakley Federal Courthouse - Boston, MA
Courtroom Technology

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Staff
Courtroom / Docket Clerk Noreen Russo 617-748-9233 noreen_russo@mad.uscourts.gov
Chambers Procedures/Standing Orders/Sample Orders
N/A
USDC Judicial Forum Survey

Civil - Case Management

Q1: Do you have any specific scheduling order or any particular topics that counsel must address in the joint statement in addition to/or in lieu of the topics required to be addressed under Local Rule 16.1(D) for the initial scheduling conference?

A1: No.

Q2: If you have a specific scheduling order, please attach your order.

A2: Respondent skipped this question.

Q3: Do you have any additional requirement(s) as to the attorneys' obligation that they confer with their client(s) about case budget and ADR pursuant to Local Rule 16.1(D)(3)?

A3: No

Q4: What, if any, inquiries do you make about settlement prospects and/or interest in mediation at the initial scheduling conference?

A4: I make sure the parties are aware of the court's mediation resources, and will ask them whether they have considered mediation as an option if the joint memorandum they submit prior to the scheduling conference does not address it.

Q5: What, if any inquiries do you make about the liklihood of trial at the initial scheduling conference?

A5: None.

Q6: What schedule do you set at the initial scheduling conference?
A6: We set a schedule for all significant phases of discovery, including automatic disclosures, written discovery, fact discovery, and expert disclosures and depositions. We also set dates for the briefing of dispositive motions.

Q7: After the initial scheduling conference, do you hold status conferences?
A7: Yes.

Q8: If so, when do you hold status conferences?

A8: After the initial scheduling conference, I typically hold a status conference before the end of fact discovery.

Q9: If so, what issues do you address at status conferences?

A9: We use the conference to assess the status of the case, whether discovery is complete, whether the parties have made attempts to settle the case, and whether the parties wish to go to mediation prior to the filing of dispositive motions.

Civil - Discovery

Q10: Other than the requirements under Local Rule 16.1(D) for addressing certain discovery topics in the parties' joint statement, what, if any, discovery issues do you like counsel to be prepared to address at the initial scheduling conference?
A10: None.

Q11: What, if any, issues related to electronically stored information should counsel be prepared to address at the initial scheduling conference?
A11: Counsel should be prepared to discuss generally the estimated amount of ESI at issue, and what discussions if any they have had regarding the establishment of a protocol for the handling of ESI.

Q12: If the parties intend to file a proposed protective order, do you require any particular format and/or a specific time for doing so?
A12: I do not require a particular format but do urge the parties to file one as soon as practicable and as close to the outset of the discovery process as possible.

Q13: Under what circumstances would you consider a bifurcation of discovery ?
A13: Bifurcation of discovery is appropriate where there is, objectively speaking, a genuine question as to liability, or as to whether the plaintiff has identified the correct entity as defendant. In those instances I urge the parties to first conduct limited discovery to resolve these fundamental issues before focusing on damages or other aspects of the case.

Q14: Given the new requirement under Fed. R. Civ. P. 26(b)(1) regarding the proportionality of the scope of discovery, what, if any inquiry do you make about this issue at the initial scheduling conference?
A14: I don't make a specific inquiry per se because counsel usually have not exchanged discovery, let alone written discovery requests, by the time of the initial scheduling conference, and true concerns about proportionality usually do not arise until later in the case. That being said, I ask each party at the conference to comment on the both the scope and type of discovery they preliminarily intend to seek, so that counsel can begin to think about the issue.

Q15: Other than the requirement that the parties confer in good faith to narrow the issues before filing any discovery motion under Local Rule 37.1(A), what, if any, additional requirements do you make of counsel before considering discovery motions?
A15: Under our standing order, parties must first contact the courtroom deputy clerk, typically by e-mail, to summarize what the discovery issue is. We then will convene a telephone conference with the goal of helping the parties to narrow or resolve the issue. If the telephone conference is not successful, only then will the party be authorized to file a discovery motion.

Q16: Do you typically hold hearing on discovery motions?

A16: Yes.

Q17: Please describe your general practice regarding the resolution of disovery motions.

A17: If the legal issue is clear, that is, the law favors one party's position, I rule accordingly. If the issue is more nebulous, or if it relates to concerns that a request is perhaps overly broad, or too vague, or onerous, I try to use the hearing on the discovery motion as a working meeting, and will ideally work through and reach resolution on each issue. As such, we can usually issue an oral order on the motion from the bench, and will follow it up with an electronic order summarizing the rulings on each issue.

Q18: Under what circumstances will you consider emergency motions regarding discovery matters?
A18: I am most likely to consider an emergency motion where the dispute concerns an event that is scheduled to occur imminently, or where it is necessary to resolve the discovery matter first so that other contemplated discovery can take place, e.g., where a party claims they must first obtain certain records before being able to depose a particular person.

Q19: Do you have any particular practices or requirements about expert disclosures?
A19: No.

Q20: What, if any, expert discovery deadlines do you set at the initial scheduling conference? When do you typically set a schedule for the filing of Daubert motions?
A20: Parties are required to submit a proposed discovery plan prior to the scheduling conference which includes expert discovery deadlines. As long as it is agreed-to and reasonable, I generally endorse the proposed plan. I do not typically set a schedule for the filing of Daubert motions.

Q21: If the case involves a pro se litigant, do you typically have any different practices in regard to scheduling conferences, status conferences or discovery matters?

A21: With respect to the scheduling conference, I do look at the parties' proposed plan to satisfy myself that it appears to be fair to both parties, but I otherwise do not handle conferences or discovery matters any differently. That being said, I do inform pro se litigants that they are expected to comply with all pertinent federal and local rules, and try to be mindful to make sure that whatever I say or write is clear to all.

Civil - Dispositive Motions

Q22: Other than the presumptive pages limits for memoranda under Rule 7.1(b), do you have any other requirements or preferences about the filing of dispositive motions?

A22: No. I do find that counsel quasi-regularly exceed the presumptive page limits. Because those additional pages rarely add substantial, additional value, I am most keen on encouraging parties to adhere to the imposed page limits.

Q23: In connection with dispositive motions, do you require the filing of any courtesy copies of exhibits, depositions and/or other materials in addition to the electronic versions that are filed on ECF?
A23: Yes, We do not require courtesy copies as a matter of course but do request them in cases where the submissions are voluminous.

Q24: Do you typically allow reply briefs and/or surreply briefs?
A24: Yes, As long as there is some basis to believe the reply or surreply will be helpful, I am inclined to grant leave for their submission.

Q25: If you allow reply and/or surreply briefs, do you impose a page limit?
A25: Yes, 7 pages.

Q26: Do you typically hold a hearing on motions to dismiss?
A26: Yes.

Q27: Do you typically hold a hearing on summary judgment motions?
A27: Yes.

Q28: If you typically hold hearings on dispositive motions, what, if any, time limits do you impose on counsel for their arguments?

A28: I do not set hard limits going into a hearing. I have in mind that 30 minutes per side is sufficient but common sense ultimately controls what limits will be placed.

Q29: Under what, if any, circumstances, would you allow the filing of post-argument briefs?
A29: If we still have questions on a particular point, or if the oral argument raises questions that were unanticipated and thus not addressed in the original briefs, a post-argument brief targeting the specific question(s) is usually helpful.

Civil - Patent Cases

Q30: Do you have any standing order and/or any particular practice regarding the management of patent cases? If so, please describe them.

A30: No.

Q31: If applicable, please upload your standing order regarding the management of patent cases.
A31: Respondent skipped this question

Q32: Do you have particular practice about Markman hearings? If so, please describe them including but not limited to whether you allow tutorial(s).
A32: I do not have a particular practice as of yet but do find tutorials to be very helpful, and encourage them.

Civil Mediation

Q33: If you have any particular practices or preferences in regard to submissions before a mediation, please describe them.
A33: Each party is required to submit a confidential memorandum of five pages or less addressing various issues. Parties may also submit any key exhibits but the impetus for doing so should be the desire to help the court to better understand the case rather than to prevail on a dispositive motion.

Q34: Do you have a standard pre-mediation order for the parties? If so, please attache it here.

Q35: If you have any particular practices or preferences in regard to conducting a mediation, please describe them here.

A35: I begin the mediation with all present and ask everyone to introduce themselves. After explaining how the session will proceed, and before moving on to the individual caucuses, I invite counsel, if they wish, to make introductory, nonargumentative comments. Counsel sometimes find this opportunity to be helpful to set a positive tone at the outset, especially where the parties have not spoken for some time.

Q36: Do you require the party/parties to be present or available during a mediation?
A36: Yes, a party with decision making authority must be available by phone. I strongly prefer that those with decision making authority be present. I recognize that that is not always possible and thus will allow a party to participate by phone.

Criminal Matters

Q37: Other than the requirements under Local Rule 116.5, what, if any, practices do you have in regard to status conferences in criminal cases?
A37: The Local Rules require the submission of a joint status memorandum seven days before a status conference. Many memos, aside from being somewhat bare in terms of the required content, are filed on the eve of the status conference, or not at all. To encourage greater compliance, we issue an order as soon as the memorandum is late, requiring the parties to submit a responsive memorandum by the close of business that day.

Q38: Typically, at what point, will you refer a criminal case back to the district judge?
A38: I typically refer the case back to the district judge when discovery is complete and the defendant has either filed any and all dispositive motions, or filing deadlines have been established.

Q39: Do you have any particular practices as to scheduling in criminal cases? If so, please describe them.
A39: In smaller cases, such as an immigration case involving a single defendant charged with unlawful reentry, I try to schedule the initial and final status conferences no more than 30 and 60 days from arraignment, respectively.

General Trial Practice - Pretrial Matters

Q40: Do you require the filing of a trial brief?

A40: Yes.

Q41: If you do not require the filing of a trial brief, under what circumstances do you think it would be helpful to the Court?

A41: A trial brief is helpful to flag notable issues, such as a complex evidentiary issue that is anticipated to arise at trial, or to help the court understand a party's legal theory and how the evidence presented is going to support it.

Q42: Do you typically hold an initial pretrial conference in civil cases?

A42: Yes, counsel should be prepared to discuss anticipated legal and evidentiary issues, stipulations, number of witnesses, estimated length of trial.

Q43: When do you set a deadline for the filing of proposed voir dire, proposed jury instructions and/or special verdict form, witness and exhibits lists, motions in limine? Typically, how far in advance of trial are these deadlines?

A43: Counsel typically will be directed to submit those materials just before or at the time of the final pretrial conference, which is typically held approximately a week before the trial.

Q44: Do you require that proposed voir dire, verdict forms and/or jury instructions be filed in any particular form (i.e., courtesy electronic copy to your deputy clerk in Word or WordPerfect format, etc.)? Describe your practice.

A44: I have no firm practice as of yet.

Q45: Do you set a page limit for motions in limine? If so, what is it?

A45: No.

Q46: Do you typically hear motions in limine at the final pretrial conference?

A46: Yes.

Q47: Do you typically resolve motions in limine at the final pretrial conference?
A47: Yes.

Q48: Do you typically hear and/or resolve Daubert motions at the final pretrial conference?
A48: Yes.

Q49: Do you require the parties to provide a courtesy copy of trial exhibits to the Court before trial?
A49: Yes.

Q50: If courtesy copies of trial exhibits are required, when do you require them?
A50: We usually ask to receive courtesy copies by the time of the final pretrial conference if some exhibits are likely to be disputed. We otherwise look to receive them at the outset of the trial.

Q51: If courtesy copies of trial exhibits are required, what particular form is required?
A51: I require the courtesy copies to be placed in a binder.

Q52: Do you require trial exhibits to be pre-marked? If so, please describe your practice?
A52: I do require that trial exhibits be pre-marked but have no hard and fast view on how they should be marked, e.g., whether they should be designated as plaintiff's or defendant's exhibit, or with a letter or number, beyond asking that they be marked consistently in a logical fashion.

General Trial Practice - Scheduling Trials

Q53: Typically, when do you set a trial date in civil cases?
A53: I convene a status conference at the end of fact discovery and set the trial date at that point.

Q54: What is your typical trial schedule?

A54: My intention is to go from 9:00 AM to 1:00 PM on days when evidence is presented, and 9:00 AM to 4:00 PM once deliberations begin.

Q55: In civil cases, do you set time limits for counsel for opening statements, the presentation of evidence and/or closing arguments? If so, please describe your practice?
A55: I have no firm practice as of yet.

General Trial Practice - Jury Selection

Q56: Please describe your jury selection process.

A56: I ask general questions of the entire prospective pool to identify those who may have issues sitting as an impartial juror. I then, with counsel, conduct an inquiry of each juror who responded and make any excusals for cause. I then fill the jury box, usually by calling jurors in the order they appear on the list. Plaintiff then exercises peremptory challenges to those in the box, followed by defendant. After the box is refilled, the order is changed and defendant goes first with respect to challenges. Back strikes are not permitted.

Q57: Under what circumstances, if any, have you or would you consider using a juror questionnaire?
A57: I typically would be guided by my sense of whether there is something extraordinary or atypical that would warrant using a juror questionnaire as opposed to conducting the typical voir dire. I might consider using a questionnaire in a case where there is a great publicity or issues of great complexity, for example.

Q58: If you would consider the use of a jury questionnaire, when and in what form should it be proposed?
A58: I would solicit the parties' thoughts and suggestions through written submissions but ultimately would create my own form.

Q59: Have you or would you consider allowing attorney voir dire?
A59: Yes, although I would consider allowing attorney voir dire, I have no firm practice as of yet, and would not expect to allow it as a matter of course.

Q60: In civil trials, typically what number of jurors do you seat?
A60: 8-9.

General Trial Practice - Trial Practices

Q61: Do you require counsel to use the podium during openings, examination of witnesses and/or closings?
A61: No.

Q62: How many rounds of examination do you typically allow?
A62: Direct & Cross, Redirect, Recross

Q63: Under what, if any, circumstances, will you allow a rebuttal case?

A63: I would permit a rebuttal case as long as the party can articulate why it would be appropriate and reasonable to allow one here.

Q64: Do you have any preferences about the use of chalks during openings and closings?
A64: I have no opposition to the use of chalks. With respect to use of chalks during the opening, I would expect counsel to show the chalk to opposing counsel ahead of time.

Q65: Do you have any particular practice in regard to jury charge conferences? If so, please describe it.
A65: I typically meet with counsel near the end of trial, perhaps a day or two before closing arguments, to review the proposed charges. Any Issues ideally will be resolved at the conference and we will issue a revised set of instructions the following day.

Q66: Do you provide a written copy of your jury charge to the jury?
A66: Yes.

Q67: Will you consider counsel's proposals of a special verdict form? If so, should it be in any particular format?
A67: I would consider a proposal to use a special verdict form but as yet have no preference for a particular format.

Q68: If you have any preferences or practices about pretrial or trial matters that has not been solicited by the prior questions, please describe them here.
A68: None.

Q69: If you have any particular practices as to bench trials, please describe them.

A69: None, except that counsel should not feel compelled to do a traditional opening statement as if to a jury.

Standing Orders & Miscellaneous Matters

Q70: If your session has any standing orders, please attach them here.

Q71: Order #2

A71: Respondent skipped this question.

Q72: Order #3
A72: Respondent skipped this question.

Q73: If there is any other guidance about your court practices and preferences that you would like to share with counsel that has not been solicited by any of the prior questions, please provide it here.
A73: When in doubt, ask.

Post-Pandemic Practices

Q74: As of Fall 2022, are there any case events that you routinely conduct via Zoom in civil cases? If so, what are they?
A74: I routinely conduct scheduling conferences by zoom. I will conduct vigorously contested motions in person but reserve the option (with the parties' assent) to conduct some discovery motions by zoom. I also do most mediations by zoom.

Q75: As of Fall 2022, are there any case events that you routinely conduct via Zoom in criminal cases? If so, what are they?
A75: I do most status conferences by zoom but otherwise do most criminal proceedings in person.

Q76: As of Fall 2022, if there are case events that you routinely conduct in person that you would consider conducting via Zoom, what are those case events and under what circumstances would you consider conducting them via Zoom?

A76: In criminal cases regarding probable cause and/or detention, where the parties merely plan to argue and do not intend to introduce evidence or call witnesses to testify, I will consider requests to hold such hearings by zoomn rather than in person.