Know Thy Judge; But Also Preserve Issues

After a certain point, judges become familiar with the lawyers regularly appearing in their courtroom and vice versa.  This occasionally leads to problems, but also occasionally makes dispute resolution far simpler.



I removed a generic slip and fall case to the local federal court.  Plaintiff served written discovery seeking information she argued was relevant to proving constructive notice.  I objected and relied upon the logic in Caballero, an on point district court decision discussed in a prior post.  Plaintiff then moved to compel, but hadn’t thought the issue all the way through.  Our case was assigned to the same District and Magistrate Judges as Caballero.  It was brought by the same lawyers for the plaintiff, and concerned the exact same interrogatory and request for production.

  Caballero My Case
Interrogatory 8 Please list all known slip and fall incidents at your store, in the five (5) years preceding the incident.  For each such incident, please state: a)   Name of the case, parties, attorney, date of incident; b)   Nature of injury or claim; c)   Description of the occurrence; d)   Whether a complaint was filed; e)   Outcome of the case or disposition of claim. Please list all known slip and fall incidents at your store, in the five (5) years preceding the incident.  For each such incident, please state: a)   Name of the case, parties, attorney, date of incident; b)   Nature of injury or claim; c)   Description of the occurrence; d)   Whether a complaint was filed; e)   Outcome of the case or disposition of claim.
Request for Production 14 Please produce reports for all slip and falls in your Store for the five (5) years preceding the date of the subject incident. Please produce reports for all slip and falls in your Store for the five (5) years preceding the date of the subject incident.  

Plaintiff’s briefing had actually been cut and pasted from Caballero, changing only the defendant’s name.  To be clear, there was nothing necessarily wrong with that.  But doing it strengthened my argument that the court had previously rejected this exact issue and should reject it again.

Plaintiff withdrew the motion after the opposition noted these correlations.  Withdrawal was the expedient solution.  However, there was a good faith basis to continue with the motion if desired.  Presumably Plaintiff’s lawyers disagreed with Caballero when it was decided and could have argued against its logic again.  Although it seems likely that argument would fail, by at least asserting it the issue is preserved for a later appeal should it ever be needed.  There are motions I file that I know Judge A or B will deny.  So long as a good faith basis is still supporting them, I file the motions anyway to preserve issues for appeal, if ever needed.