Editor’s Note: The Colorado Supreme Court issued its opinion in In re Averyt v. Wal-Mart Stores, Inc. on November 7, 2011.
In Averyt v. Wal-Mart Stores, Inc., (No. 11SA66) the Colorado Supreme Court held that publicly available documents need not be disclosed pursuant to Rule 26.
In this case the plaintiff slipped and injured herself on a grease spill at a Wal-Mart store. At trial, as it had throughout discovery, Wal-Mart claimed that no such grease spill had occurred. The plaintiff impeached this testimony with questions based on a previously unproduced report from the City of Greeley documenting a grease spill that it had located during the trial. After its objection to the use of the report was denied by the trial court, Wal-Mart entered the report into evidence while rehabilitating its witness. The next morning, Wal-Mart informed the plaintiff that it had located a witness who remembered the spill, and numerous documents corroborating the existence of the spill. After it (not surprisingly) lost at trial, Wal-Mart sought and received a mistrial based in part on the plaintiffs’ purported failure to disclose the Greeley report.
The Colorado Supreme Court held that CRCP 26 did not apply to the Greeley report (and hence there was no duty to disclose it) because it was a public document equally available to all parties. It further held that “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 held that “[w]e expressly adopt this rule because a contrary rule would require continuing disclosure by one party of voluminous information that the party discovers in the public domain . . . . The burden imposed upon the parties by such continuing disclosure outweighs any benefit of expediency gained by automatically sharing the information where, as here, the public information is readily available and equally accessible to both parties.”
Justice Marquez, joined by Justice Coats, concurred with the judgment in part and wrote separately to express the belief that the rule announced by the Court was too broad and allowed parties to hide responsive and relevant documents in their possession so long as the documents were “public.” The Justice expressed the concern that such documents might be exempt from disclosure even when they went to “disputed issues of knowledge.”
Interestingly no one commented on the irony of Wal-Mart, which appears to have violated its discovery obligations by concealing (or at least failing to locate) documents and a witness relating to the spill, being the party complaining about a failure of disclosure.