Atlantic City Electric Co v. General Electric Co.

337 F.2d 844 (2d Cir. 1964)



Pre-trial leave to appeal applications must be decided against the background of the entire case. Many important questions of law will undoubtedly arise in these cases but the the issue is the feasibility and advisability of trying to decide the particular question in advance of trial.


Allowing the defendants to proceed with their proposed discovery plan would significantly encumber the pretrial proceedings. Denial without prejudice allowed the proceedings to still continue and preserved the defendants’ defense in the future.


Plaintiffs filed an action seeking damages from defendant. Defendants propounded interrogatories to plaintiff regarding whether the damages had been shifted to plaintiff's customers. Defendants appealed a decision ruling in favor of plaintiffs in their objection to the defendants’ interrogatories. 


Is the defendants’ application for leave to appeal their interrogatories proper?




The court held that it was not appropriate to determine if the alleged “passing-on” defense applied in advance of trial. Thus, the court held in favor of the plaintiffs. If the defendants’ interrogatories were allowed it would have made the pretrial proceedings more extensive and burdensome than they had already been. Further, the defendants’ right to the sought defense was not prejudiced by the court’s denial.

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