Travis R. McDonough, United States District Judge

Judicial Preferences

1.  FAMILIARITY WITH LOCAL STANDARDS
The Court expects all lawyers who appear before it to be familiar with, and to abide by, all local rules, standing orders, these preferences, and local standards of practice and civility. The Court encourages lawyers who are not permanently admitted to practice before the United States District Court for the Eastern District of Tennessee to have the benefit of local counsel in order to ensure efficiency and compliance with these standards.

2.  COMMUNICATION WITH THE COURT BEYOND FILINGS

A. Written Correspondence from Counsel to the Court

Written correspondence should not replace or augment pleadings, motions, or other papers that may be filed with the Court under Rule 7 of the Federal Rules of Civil Procedure, Federal Rule of Criminal Procedure 47, and Local Rule 7.1. However, if a party sends correspondence to the Court for other purposes, the party must simultaneously provide copies to all other parties as is required by Rule 5 of the Federal Rules of Civil Procedure and Rule 49 of the Federal Rules of Criminal Procedure.

B. Communication with the Court's Law Clerks

If a party believes there is a need to speak directly to a law clerk, the party should send an email to mcdonough_chambers@tned.uscourts.gov explaining the need for the request and providing the best number to reach the requestor. Communication with law clerks will not relieve a party from the obligation to meet deadlines otherwise applicable. The Court will consider such relief only after a timely filed motion.

C. Telephone Conferences in Lieu of Personal Appearances

The Court expects all lawyers who will be actively involved in the case's discovery, motion practice, and trial to attend the scheduling conference and the final pretrial conference in person. Generally, the Court allows counsel to decide who should attend in person other proceedings such as hearings and oral arguments. The Court may initiate a telephone conference in other situations when necessary.

D. Courtesy Copies for Chambers

The Court prefers not to receive printed copies of filings. The Court may request such copies if deemed useful.

3.  SCHEDULING
Civil Cases

A. Standard Form Scheduling Orders

The Court uses a standard scheduling order and encourages participants in the scheduling conference to become familiar with the form prior to the conference. Typically, the scheduling order will provide for the following deadlines in relation to the trial date:

Plaintiff's and Defendant's Expert Disclosures (under both Fed. R. Civ. P. 26(a)(2)(B) and 26(a)(2)(C); Joinder of Parties; Amendment of Pleadings;27 weeks before trial
Rebuttal Expert Disclosures23 weeks before trial
Final Witness List21 weeks before trial
Discovery19 weeks before trial
Dispositive Motions15 weeks before trial
Daubert Motions15 weeks before trial
Pretrial DisclosuresSix weeks before trial
Motions in LimineFour weeks before trial
Proposed Jury Instructions or Findings of Fact and Conclusions of LawThree weeks before trial
Final Pretrial ConferenceMonday two weeks before trial


B. The Extent to which Counsel May Influence the Scheduling Order Extensions

The Court generally defers to reasonable input of counsel at the scheduling conference as to the length of the discovery period, the dates of particular deadlines, and the month for a trial date. As a rule of thumb, discovery in a typical civil case should take eight months. Reasonable extensions that do not affect the trial date or the Court's ability to consider a dispositive motion are more likely to be granted.

C. Rule 16 of the Federal Rules of Civil Procedure

The Court expects the parties to have discussed and to have agreed upon the particular format of electronic discovery to be produced. If no agreement can be reached, the parties should be ready to discuss this issue in detail at the Rule 16 conference.

D. Discovery Following Dispositive Motions

Absent an order to the contrary, the filing of a dispositive motion does not stay discovery. Motions to stay discovery pending the resolution of a dispositive motion will be granted only in unusual circumstances and on a case-by-case basis.

E. Referral to the Magistrate Judge

The Court typically refers Social Security and ERISA claims to a Magistrate Judge for a recommendation on dispositive motions.

Criminal Cases

F. Scheduling Orders

Scheduling orders are entered by the Magistrate Judges. The Court adheres to plea and motions deadlines unless modified upon motion addressed to the Court.

G. Plea Agreements

The Court will consider all plea agreements presented to it, including those under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The Court will not accept a plea agreement under Rule 11(c)(1)(A) or (B) if the agreement waives the defendant's rights to file an appeal or a petition pursuant to 28 U.S.C. 2255. The Court, however, will consider such waivers if included in a plea agreement under Rule 11(c)(1)(C).

4.  DISCOVERY

A. Discovery Disputes

Counsel for all parties are required by the Federal Rules of Civil Procedure and the Local Rules to attempt to resolve discovery disputes before bringing them to the Court's attention.

B. Expert Witnesses

Counsel should not contact expert witnesses engaged by opposing counsel or parties.

C. Confidentiality Agreements

The parties may enter a confidentiality agreement which will be binding upon the parties. With regard to filing documents under seal with the court, however, counsel must adhere to the requirements of Local Rule 26.2.

D. Brady Material

Unless a defendant has waived the right to Brady material, the Government shall deem all such material to have been requested at the time of the defendant's first appearance with counsel or the time of waiver of the right to counsel. The Government is encouraged to produce all such material as soon as reasonably practicable to avoid any delays necessitated by the Court's obligation to allow the defense adequate time to prepare.

E. Jencks Act Statements

In order to promote the efficient administration of justice, the Court encourages the Government to produce, prior to trial, all statements it has reason to believe will be subject to disclosure under the Jencks Act at trial.

5.   MOTIONS AND BRIEFS

A. Oral Arguments on Motions

The Court will schedule oral argument on a motion if it believes such argument will be useful. If a party believes oral argument on a motion would be particularly useful, the party may file a separate motion and a supporting memorandum of no more than five pages that explains why oral argument should be scheduled. Additionally, the Court believes it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to young lawyers, to clients, and to the profession generally. Accordingly, the Court will consider, among other things, whether the requested oral argument presents a speaking opportunity for a young lawyer in determining whether to schedule oral argument on a motion.

B. Pages in Excess of the Limitations Set Forth in Local Rule 7.1(b)

Requests for five additional pages in opening briefs and answering briefs will typically be granted in sufficiently complex cases, unless the Court deems additional length unhelpful. Such requests will rarely be granted for reply briefs. A motion to exceed the page limitation should be made, if allowed by the briefing schedule, at least ten days before the brief is due for filing.

C. Motions for Extensions of Time

Motions for extensions of time to file all other motions or responses must be made well in advance of the deadline the moving party seeks to extend. The moving party must demonstrate why the requested extension is necessary and will bear the burden of specifically defining the bases for and extent of its request. The fact and length of an extension is in the Court's discretion.

D. Statements of Undisputed Facts Supporting Motions for Summary Judgment

The Court does not require statements of undisputed facts and will not consider them unless they are jointly submitted. The parties must, however, comply faithfully with the standards set forth in Rule 56 of the Federal Rules of Civil Procedure with regard to factual citations to the record.

E. Joint Appendix for Summary Judgment

When a party moves for summary judgment, the parties shall meet, confer, and develop a single, joint appendix of all exhibits. The joint appendix shall be filed by the movant no later than the date the initial motion for summary judgment is docketed. All pages of the joint appendix shall be consecutively numbered and referenced in the motions and briefs by such page number. The joint appendix shall include a table of contents. The parties shall make every effort to include all necessary exhibits in the initial joint appendix. The parties should not, however, prospectively over-designate exhibits or deposition testimony for inclusion in the joint appendix. For example, parties should only include those pages of a deposition transcript that are cited to by one of the parties. Should it become necessary for the non-moving party to submit additional exhibits, it may do so at the time it files its opposition brief. Any addendum to the joint appendix shall be consecutively numbered, following the page number at which the joint appendix ended, and shall include a table of contents. The Court will not consider material not included in the joint appendix and addendum.

F. Motions for Emergency Relief

Parties must comply with Rule 65 of the Federal Rules of Civil Procedure. The Court will ask the requesting party to notify the opposing party as the Court sets an emergency hearing unless the Court determines notice should not be required. Parties requesting an emergency hearing should be prepared to appear when the Court sets a hearing, often the same day the petition is filed. The Court will consider allowing expedited discovery. The Court welcomes briefing before a hearing on such relief.

6.  SETTLEMENT

A. Settlement and Use of Magistrate Judges

In all cases, the parties are urged to try to settle, using mediation or other alternative dispute resolution, if necessary, in civil matters. Magistrate judges may be involved on a case-by-case basis at the Court's discretion.

B. Notifying Court of Settlement

Parties should immediately inform the Court once they reach settlement. Following settlement, the parties should promptly submit a stipulation of dismissal. The parties must submit a stipulation of dismissal or an agreed order of dismissal before the trial date unless otherwise directed by the Court. E.D. Tenn. L.R. 68.1.

7.  TRIALS
Before Trial

A. Trial Brief

The parties should file trial briefs on anticipated evidentiary and legal issues at least three business days before the Final Pretrial Conference.

B. Motions in Limine

The Court prefers to rule on a motion in limine prior to trial, but, often, context available only at trial is necessary to determine the issues.

Conduct of Counsel at Trial

C. Voir Dire

Counsel will lead voir dire, subject to the Court's direction. The parties will first make their for-cause challenges. After the Court rules on the for-cause challenges, the parties may exercise peremptory challenges.

D. Time Limits for Opening and Closing Statements at Trial

The Court will consider counsel's input regarding reasonable time limits for opening statements and closing arguments.

E. Location of Counsel Examining Witnesses

Counsel must examine witnesses from the lectern and are to stand if physically able.

F. Sidebar Conferences

When possible, counsel should endeavor to raise sensitive matters in conjunction with breaks during trial, when the jury is out of the courtroom. Counsel should confer with each other, anticipate these needs, and notify the courtroom deputy or the law clerk as the need to address an issue approaches in order to avoid surprising the Court with a request for a sidebar conference. If a matter must be raised immediately and counsel is unsure whether the matter should be addressed to the Court prior to disclosure to the jury, then sidebars are encouraged. If it appears to the Court during the sidebar that a lengthy conference is required, the jury will be excused.

G. Communication with Jurors after a Verdict

Regarding speaking with jurors, see Local Rule 48.1. Any communication allowed will take place in the courtroom immediately following trial.

Witnesses and Exhibits

H. Exhibits

Before trial, counsel should become familiar with Local Rule 43.3 regarding the presentation of evidence.

I. Recorded Testimony

The Court expects counsel to discuss in advance of trial accommodations necessary for offering recorded testimony and to reach agreement on the method to be used.

J. Pre-Marking and Admission of Documentary and Photographic Exhibits and Other Demonstrative Evidence

Exhibits should be pre-marked according to the exhibit list the parties prepare, in compliance with the scheduling order. The parties should provide three copies of the exhibit list to the courtroom deputy before the trial begins. Counsel should stipulate to the admission of as many exhibits as possible in order that the trial not be unduly prolonged. In the event that the admission of documents is stipulated, counsel need not move the introduction of each individual exhibit. For exhibits whose admission are not stipulated, counsel should move their admission if and when the exhibits are presented at trial.

K. Preference for the Moving of Exhibits into Evidence at Trial

The Court has no preference as long as counsel follows the Federal Rules of Evidence.

L. Whether More than One Attorney May Examine a Witness

Only one attorney for a party may conduct examination and raise objections during the testimony of any given witness. If co-counsel who will not cross-examine a witness inadvertently announces an objection during direct examination, the mistake should be corrected immediately, and the attorney responsible for cross-examination should resume handling objections.

M. Examination of Witnesses Beyond Cross-Examination

The Court will typically allow re-direct examination and re-cross-examination if the testimony elicited is within the scope of the preceding examination and is otherwise admissible under the Federal Rules of Evidence. Further examination is rarely warranted.

Jurors

N. Note-Taking by Jurors

Jurors are allowed to take notes.

O. Written Jury Instructions Provided to the Jury

The Court provides the jury a copy of the final instructions when the jury begins deliberation.

P. Submission of Written Verdict Forms (in the Form of Interrogatories) to the Jury

The Court submits written verdict forms to jurors.

Q. Whether the Jury May Take Exhibits into the Jury Room for Deliberation

Jurors may take exhibits into the jury room for deliberation except for firearms, controlled substances, and other items which could impair safety. All exhibits that can be put into electronic form must be in electronic form. The jurors will not receive physical copies of any exhibits which can exist in electronic form, but instead will view them on an electronic evidence display system in the jury room.

R. Jury Requests for Review of Testimony or Recorded Evidence

These are handled on a request-by-request basis.

S. Requirements as to Counsel's Location during Jury Deliberations

If counsel leaves the courthouse, he or she is responsible for providing the courtroom deputy his or her mobile telephone number and is responsible for answering the clerk's call. Counsel should be in a position to report to the courthouse within five minutes of notification by mobile telephone.

T. Polling of Jurors

When requested, the courtroom deputy will poll the jurors.