Important Steps in Discovery against Wal-Mart

ATLA Motor Vehicle Collision, Highway & Premises Liability Newsletter, Fall 1998

Thorough discovery leads to successful litigation, but often such discovery is dependent upon networking with other attorneys and sharing of information.  I recently second-chaired a case that was tried by James J. Murphy and resulted in a $4 million verdict against Wal-Mart.  The case involved an injury caused by falling merchandise.  Our networking with other attorneys and their sharing of information resulted in the discovery of critical evidence, exposure of Wal-Mart’s discovery misconduct, substantial discovery sanctions, and eventually the verdict.

The following is provided for lawyers litigating a case against Wal-Mart.  It is a basic checklist of information that should be obtained during discovery.

1)      All pages of the “Report of Customer Injury,” including the folder in which it is kept and accompanying photographs;

2)      The Wal-Mart “Safety Handbook;”

3)      The store’s “Bureau of Labor Statistics Log and Summary of Occupational Injuries and Illnesses” from within a given timeframe;

4)      Any “Safety Hotline” that addresses your issues;

5)      Each “Safety 1^st” survey from within a given timeframe;

6)      Wal-Mart Television’s “Master Archive List,” which is a videotape index;

7)      Identify members of and documents generated by the “Safety Team,” “Safety Loss Prevention” committee, “Risk Control and Safety” committee, and “Accident Review Board;”

8)      Each “Monthly Risk Control Survey” from within a given timeframe;

9)      The Wal-Mart “Associate Handbook;”

10)  The Wal-Mart “Store Manual;”

11)  The Wal-Mart “Safety Manual;”

12)  Access to module lessons from the Wal-Mart “CBL” also known as its “Computer Based Learning,” which trains associates;

13)  The store’s floor plans;

14)  Similar incident data obtainable through Wal-Mart’s “ISD,” which is its “Information Systems Division” in Bentonville, Arkansas. Data comes from “CMI,” “Claims Management, Incorporated,” a wholly-owned subsidiary of Wal-Mart located in Rogers, Arkansas that has handled Wal-Mart liability and worker’s compensation claims since 1993.

The following would apply to those cases involving falling merchandise:

15)  Wal-Mart documents referring to “zoning” and “zoners;”

16)  Names of all “zoners” on duty at the time of the incident;

17)  The lack of height limitations, guards, or dividers for merchandise on risers;

18)   Wal-Mart documents referring to “leaners;” and

19)   Each Wal-Mart “Accident Reduction Plan.”

As referred to above, attorneys should be prepared for Wal-Mart’s discovery misconduct.  The court record in our case reveals incidents involving the destruction of evidence, violation of court orders, delayed disclosure of an alleged eyewitness (not listed in reports of the incident and who was sole witness claiming our client was negligent), failing to answer discovery relating to prior incidents, failing to answer discovery relating to alleged surveillance (which was recanted at trial), and late disclosure of expert witnesses.