Averyt v. Wal-Mart Stores, Inc.
265 P.3d 456 (2011)
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Rule of Law:
A party is not required to supplement its discovery disclosures under C.R.C.P. 26 with a public document that is equally available to all parties, as such documents fall outside the scope of mandatory disclosure.
Facts:
- Holly Averyt, a commercial truck driver, slipped in grease at a Wal-Mart store in Greeley on December 18, 2007.
- As a result of the fall, Averyt sustained severe injuries, including a ruptured spinal disc and injuries to her shoulder and neck, which ended her career as a truck driver.
- Throughout the discovery process, Wal-Mart consistently denied that a grease spill had occurred at the store.
- On the first day of trial, while Wal-Mart's attorney was delivering an opening statement reiterating the denial of any spill, Averyt's attorney received an email containing a memorandum from the City of Greeley referencing a grease spill investigation at a Greeley Wal-Mart (the 'Greeley report').
- The next day, Averyt's attorney used information from the un-disclosed Greeley report to question Wal-Mart's corporate representative about the spill.
- After the examination, Averyt's attorney provided a copy of the report to Wal-Mart's counsel.
- The following morning, Wal-Mart's representatives admitted that the spill had occurred, changed their defense strategy, and produced their own records documenting the spill and cleanup efforts.
Procedural Posture:
- Holly Averyt filed suit against Wal-Mart in a Colorado trial court, alleging negligence and premises liability.
- The case was tried before a jury, which returned a verdict in favor of Averyt, awarding her $15 million in damages.
- The trial court subsequently reduced the non-economic damages portion of the award to the statutory cap of $366,250.
- Wal-Mart filed a post-verdict motion for a new trial, arguing surprise, non-disclosure of evidence, and unfair prejudice.
- The trial court granted Wal-Mart's motion for a new trial.
- Averyt (petitioner) sought review from the Colorado Supreme Court, which issued a rule to show cause why the trial court's order granting a new trial should not be reversed.
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Issue:
Does a party violate the supplemental disclosure requirements of C.R.C.P. 26(e) by failing to disclose a public document that it discovers mid-trial and that is equally accessible to the opposing party?
Opinions:
Majority - Justice Rice
No, a party does not violate C.R.C.P. 26(e) by failing to disclose a public document equally available to all parties. The court held that the mandatory disclosure requirements of C.R.C.P. 26 do not apply to public documents that are equally accessible to all parties. Because the Greeley report was a public record obtainable from the City of Greeley, Averyt's attorney had no duty to disclose it to Wal-Mart. The court reasoned that requiring parties to continuously disclose all publicly available information they find would impose an undue burden and is not the purpose of the discovery rules. Furthermore, the court found that the jury's damage award was supported by sufficient evidence and was not the result of unfair prejudice; any prejudice against Wal-Mart was self-inflicted by its own trial strategy of denying the spill until confronted with incontrovertible evidence.
Concurring - Justice Marquez
While concurring in the judgment to reverse the trial court's order, this opinion disagrees with the majority's creation of a broad 'public documents' exception to C.R.C.P. 26. The concurrence argues that the plain language of the discovery rules, which distinguish between the duty to disclose the existence of a document and the duty to produce it, does not support such an exception and that it undermines the truth-seeking purpose of discovery. The proper reason to reverse the new trial order is that Wal-Mart waived its claim of unfair prejudice. Instead of requesting a continuance or a mistrial upon learning of the report, Wal-Mart made a tactical decision to introduce the report itself and alter its defense strategy. A party cannot gamble on a trial strategy, lose, and then claim unfair prejudice to obtain a new trial.
Analysis:
This decision establishes a significant 'public documents exception' to Colorado's automatic disclosure and supplementation rules. By exempting equally accessible public records from disclosure, the ruling potentially streamlines discovery by reducing the burden on parties to produce information the opposition can obtain itself. However, it also introduces a risk of 'trial by ambush,' where one party can strategically withhold a key public document until a critical moment, contrary to the modern discovery goal of eliminating surprise. The concurrence highlights this tension, arguing the exception undermines the truth-seeking function of liberal discovery rules, suggesting future litigation may be needed to define the boundaries of this new exception.
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