Colorado Supreme Court - November 7, 2011

No. 11SA66. In re Averyt v. Wal-Mart Stores, Inc.

Weld County District Court, 2009CV1149, plaintiff represented by Jeffrey Roger Hill of Jeffrey R. Hill, P.C. and Gregory Gold of Gold Law Firm, LLC. Wal-Mart Stores, Inc. represented by Harris Karstaedt Jamison & Powers, P.C. Justice Rice wrote the opinion. Justice Márquez concurred in part and concurred in the judgment, and Justice Coats joined in the concurrence in part and the concurrence in the judgment. Justice Eid did not participate.

This case establishes a general rule that neither disclosure nor discovery requires the production or disclosure of public documents that are equally available to the parties. The facts are recited at length because of the lessons they offer for trial attorneys.

The case was before the Colorado Supreme Court on a C.A.R. 21 petition. Petitioner, Holly Averyt, a commercial truck driver, slipped and fell in accumulated grease in the grocery receiving area while she was making a delivery to a Wal-Mart Store in Greeley. As a result Averyt ruptured a disc and injured her shoulder and neck. Her injuries ended her career as a truck driver and have left her unable to perform many daily functions. Averyt sued Wal-Mart, alleging negligence and premises liability. During discovery Averyt's attorney unsuccessfully sought to obtain records from Wal-Mart documenting the grease spill. Indeed, Wal-Mart denied the existence of the grease spill. Despite Wal-Mart's denial of the grease spill, Averyt's attorney continued to seek evidence to verify its existence. Averyt's attorney was advised to contact Weld County to determine if it had records documenting the grease spill. Averyt's attorney called Weld County during the lunch recess on the first day of trial. Although Weld County had no record of the grease spill, the representative suggested that Averyt's attorney contact the City of Greeley. A colleague contacted the City of Greeley while Averyt's attorney returned to the trial.  While Wal-Mart was making its opening statement, stating that there had been no grease spill and, if there had been, Wal-Mart would have records documenting it, Averyt's attorney received an email on his mobile telephone from his colleague containing a memorandum referencing a grease spill and a related investigation and cleanup at a Greeley Wal-Mart (the Greeley report). After both parties made opening statements, the court announced the evening recess. Averyt's attorney spent the evening attempting to decipher the relevance of the report, specifically whether it pertained to the store at which the accident occurred. The next day, Averyt called as a witness a fellow truck driver, who testified that he had noticed a grease spill at the Wal-Mart two days before Averyt's slip. Averyt then called as a witness Jonnie Shommer, Wal-Mart's corporate representative designated under C.R.C.P. 30(b)(6). After Shommer testified that there had been no grease spill, Averyt impeached her testimony with factual questions based on the Greeley report. Averyt's attorney did not specifically refer to the report, nor did he introduce the report into evidence. When Averyt's attorney concluded the direct examination of Shommer, Wal-Mart requested, and was granted, a recess. During the recess, Wal-Mart's attorney asked Averyt's attorney whether he had been reading from a document when he questioned Shommer. Averyt's attorney then gave Wal-Mart's attorney a copy of the Greeley report. After this exchange, and before Wal-Mart began cross-examining Shommer, Wal-Mart objected outside the presence of the jury to Averyt's use of the report during direct examination. It did not, however, request a mistrial, a continuance, a curative instruction, or a limiting instruction. The court overruled Wal-Mart's objection. During cross-examination, Wal-Mart admitted the Greeley report into evidence. The court then announced the evening recess. By the next morning, before cross-examination of Shommer was to resume, Wal-Mart informed the court and Averyt that it had located an assistant manager who remembered the grease spill and numerous documents corroborating the existence of the spill, including documents from three companies who were involved in cleaning up the spill. From that point forward, Wal-Mart ceased to deny the existence of the grease spill and instead asserted that it exercised reasonable care to clean up the spill.

The jury found in Averyt's favor and awarded her $15 million in economic, non-economic and physical impairment damages. The trial court ultimately reduced the non-economic damages award to the statutory cap of $366,250 set forth in section 13-21-102.5(3), C.R.S. (2011).

After the verdict, Wal-Mart moved for a new trial based on surprise, non-disclosure, and unfair prejudice. The trial court granted Wal-Mart's motion, holding that Averyt should have disclosed the Greeley report before using it to question WalMart's representative on the second day of trial. The court further held that the jury award was not supported by the facts, indicating that the jury had been unfairly prejudiced by the late disclosure of the Greeley report. Averyt petitioned the Colorado Supreme Court to issue a rule to show cause which was granted.

Dealing with the disclosure issue, the Court first cited and discussed a party's obligations under C.R.C.P. 26(a) and 26(e). The Court then stated that as a general rule discovery is not required for public documents that are equally available to all parties, citing a number of cases from the federal courts and other state courts. The Court then applied "this general rule in the context of automatic disclosures because nothing in Rule 26 requires disclosure by a party of documents which it would not be required to produce, if requested, under C.R.C.P. 34." The Court stated it was adopting this rule "because a contrary rule would require continuing disclosure by one party of voluminous information that the party discovers in the public domain." Specific to the facts of the case the Court stated:

The Greeley report is a prime example of the kind of document that a party should not be required to disclose under C.R.C.P. 26(e). Averyt discovered the report by telephoning the City of Greeley. Moreover, upon discovering the Greeley report, Averyt could not know without further investigation who wrote it, when it was written, whether it was intended to be an official public document, and whether it pertained to the Wal-Mart store involved in this action. We cannot adopt a rule which would impose the burden of disclosure on one party who finds a document containing such uncertain information where the document is equally available to both parties in the public domain. In short, the report is a publicly available record that Averyt's attorney obtained from the City of Greeley.

Averyt and Wal-Mart were on equal footing with regard to the ability to obtain the report. Accordingly, we hold that C.R.C.P. 26's disclosure requirements do not apply to the Greeley report and that Averyt had no duty to disclose it to Wal-Mart. Thus, we reverse the trial court's order as it pertains to this issue.

The Court went on to reinstate the damages awarded by the jury.

Without regard to whether it existed before or not, this case creates a clear exception to the disclosure and discovery rules "for public documents that are equally available to all parties." In my opinion a case that could have been decided on the unique facts presented was used to create a general rule that will lead to further litigation over whether or not documents are in the public domain and equally available to all parties. How this exception will develop cannot be predicted, but the often unequal resources of the parties will, in my opinion, result in one party having far greater ability to find and use documents in the public domain that are equally available to all parties without having to disclose them prior to trial. Will this lead to a greater incidence of trial by ambush when one party finds a critical document in the public domain? Clearly CRE 403 will still apply, but what impact will the general rule articulated in Averyt have on the application of CRE 403 if a party can attempt to introduce a document the other side has never seen at trial? Will the new rule apply only to evidence used for impeachment in light of the requirements of C.R.C.P. 16(f)(3)VI(B)? Arguably this can be read into the decision, but who knows. Does the disclosure obligation change if a C.R.C.P. 26(a)(2)(B)(I) expert considers one of these documents?

Stay tuned.

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