'Don't Be Afraid to Dumb It Down': Top Fed Magistrate Judge Gives Tips on Explaining Complex Discovery Disputes
"You shouldn't necessarily assume that when you're in front of any of us that we have a clue of what you're talking about," U.S. District Chief Magistrate Judge Donald L. Cabell told attorneys on the evolution of electronically stored information.
November 12, 2024 at 03:12 PM
3 minute read
Disputes over electronically stored information and complex discovery have exploded in the past decade and don't appear to be going away anytime soon, but one federal judge offered suggestions Tuesday to help lawyers keep it simple.
U.S. District Chief Magistrate Judge Donald L. Cabell of the District of Massachusetts spoke to the Massachusetts Chapter of the Federal Bar Association on Tuesday morning during an in-person and remote Q&A-style session. Cabell, who was appointed to the court in January 2015, has spent the last year serving as the chief magistrate and reflected on some of the biggest changes he's seen during his tenure.
"The biggest observations I have made over the 10 years has been the explosion of ESI. ... You shouldn't necessarily assume that when you're in front of any of us that we have a clue of what you're talking about," Cabell told attorneys during Breakfast with the Bench at the John Joseph Moakley U.S. Courthouse in Boston.
Last year, Cabell attended a conference put on by global tech giants for the legal community regarding ESI. He said he and other judges were floored by how the technology has evolved from issues deciding the reasonableness of certain emails or where electronic information is stored, to complex matters entrenched in scientific innovation. Some of those isuses have developed into complex matters entrenched in scientific innovation.
Recently, some of the most intense discovery disputes have come from patent litigaton, Cabell said.
When sorting through some of the complexities, he said it's a balancing act for attorneys to break down the information to help guide the judge to a few key issues. It's often unnecessary for attorneys to lecture their arguments or provide a deep-dive as if they were teaching a chemistry class.
"Usually, we don't need to need to understand it at that level to figure out what we should being doing. So one of the things I would advise lawyers is just read the room of it. Don't be afraid to dumb it down for us, but at the same time, don't be too worried that you're not helping us understand the real nitty-gritty of it. ... Typically it's not necessary for us to understand it at that level."
If charts, pictures, graphs, or other colorful representations help attorneys explain their side of the science with simple prose—use them, Cabell said.
Still, the court is seeing "too many discovery disputes that are just unnecessary," Cabell said. Often, he recommends the parties set aside a few hours to "roll up [their] sleeves" and go through each issue before the disputes are presented to him. It's an effort to help with judicial efficiency, he explained.
"I'm not going to write anything if I can avoid it, and that's different from the beginning," Cabell said. "Ten years ago, we would go back, we would take everything under advisement. Four months later, we produced a 25-page opinion on who should have produced an email three years ago.
"We try not to do that now. We try really to get parties to a point that when they walk out of the hearing, we're done," Cabell added.
Before joining the court, Cabell served as the justice attaché in the Office of International Affairs at the U.S. Embassy in Paris. After stints with firms now known as Wilmer Cutler Pickering Hale and Dorr and Prince Lobel Tye, Cabell spent nearly 17 years as an assistant U.S. attorney.
He earned his law degree from Northeastern University School of Law.
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