HUMOR December 2021
Déjà Vu, All Over Again
Written by John G. Browning
With all due apologies to the master of the malapropism, Yogi Berra, he’s not the only one to experience a sense of “déjà vu all over again.” Sometimes federal judges feel like they’ve seen and heard the same thing from counsel appearing before them—over and over again. And some aren’t shy about calling lawyers on it—with an assist from Bill Murray.
Take Judge John M. Gallagher, of the Eastern District of Pennsylvania, for instance. Gallagher was presiding over a lawsuit resulting from a fire allegedly caused by the failure of an indoor insect trap designed and sold by a company called Dynamic Solutions Worldwide, or DSW. Joseph and Joan Holoman had purchased this bug trap through QVC in July 2019, and it supposedly caused an electrical fire at their home on July 18, 2019. The Holomans’ insurance carrier, Allstate, paid for the fire loss and then brought a subrogation lawsuit against DSW and QVC. The litigation was marked by a repeated failure by DSW to meet the court’s discovery deadlines and to timely provide its expert report. After multiple chances and the imposition of lesser sanctions, the plaintiff had enough and moved to exclude the defendant’s electrical expert.
In a May 7, 2021, memorandum opinion, Gallagher excluded the expert, noting his repeated acquiescence in giving the defense more time and ominously saying that “when the Court runs out of carrots, sometimes it must reach for a stick.” Observing that the case “presents a repeated, flagrant disregard of the Court’s discovery orders,” Gallagher broke out the pop culture wisdom:
However, today is not “Groundhog Day,” and the Court is not Bill Murray. Unlike the comedic film, a civil litigant cannot expect a redo of the deadlines every time the alarm clock sounds their expiration . . .
Ouch! In fairness, however, Gallagher is not the first federal judge to reference the Murray comedy classic. In 2018, Judge Mark Walker, of the U.S. District Court for the Northern District of Florida, also gave a shoutout to Groundhog Day. In ruling that 32 counties across Florida had violated the Voting Rights Act by denying Puerto Ricans (who had been displaced by Hurricane Maria and were now living in Florida) access to Spanish-language ballots, Walker characterized the repeated election law violations as a case of “what’s old is new again.” Walker wrote:
Here we go again. The clock hits 6:00 a.m. Sonny and Cher’s “I Got You Babe” starts playing. Denizens of and visitors to Punxsutawney, Pennsylvania eagerly await the groundhog’s prediction. And the state of Florida is alleged to violate federal law in its handling of elections.
Of course, if there’s one thing you can count on besides judges making pop culture references, it’s Zoom mishaps. And few judges have witnessed more Zoom weirdness than Michigan’s Judge Jeffrey Middleton. Middleton’s virtual courtroom has already included a Zoom appearance in a driving with a suspended license case by a defendant who was behind the wheel yet again (with no license), as well as a domestic violence case where the defendant—despite a no contact order—appeared for his hearing from the victim’s house! The latest virtual snafu before Middleton came in early May when defendant Nathaniel Saxton logged into his arraignment hearing with an X-rated screen name. Middleton didn’t mince words with Saxton, calling him a “yo-ho” and saying “What kind of idiot logs into court like that?” The embarrassed defendant apologized, explaining that his sister had set up his account and used that screen name as a joke. Middleton was not amused, telling Saxton that his sister almost cost him jail for contempt of court, before ultimately fining Saxton $200 for possession of drug paraphernalia. Pro tip: always check your screen name before logging into a Zoom hearing or meeting—oh, and check for cat filters, too.
You should also check your Zoom backgrounds, as Ohio state Sen. Andrew Brenner can attest. The senator was attending a May Zoom meeting of the Ohio Controlling Board to discuss some pending legislation and was repeatedly turning his camera off and tinkering with his glitchy “home office” virtual background. Other attendees on the call could see Brenner wearing a seatbelt, holding his hands as if gripping a steering wheel, and trying to adjust his background as scenery rushes by. Yes, it became painfully obvious to everyone that Brenner was attending the Zoom call from his car while driving, and he later admitted that he regularly attends such calls while driving while denying being distracted.
Oh, and the subject of the bill that was discussed during this Zoom call? Distracted driving. I can’t make this stuff up.TBJ
JOHN G. BROWNING
is a former justice of the 5th Court of Appeals in Dallas. He is the immediate past chair of the State Bar of Texas Computer & Technology Section. The author of five books and numerous articles on social media and the law, Browning is a nationally recognized thought leader in technology and the law.