On November 7, 2011 the Colorado Supreme Court made its ruling in the matter of Averyt v. Wal-Mart Stores, Inc., 2011 WL 5325525 (full citation not yet available). This is an important case in Colorado as it dealt with two litigation issues present in most cases, including construction defect matters. Specifically, the Averyt Court reviewed the trial Court’s order granting Wal-Mart a new trial based on an alleged untimely disclosure, and also the jury verdict itself, which was purportedly not supported by the evidence. The Court found that the trial court abused its discretion in granting a new trial, and that the jury verdict was supported by the evidence. The Supreme Court’s analysis of the disclosure issue is germane to almost every construction defect case, and is discussed further below.
In the underlying trial, the Plaintiff, Holly Averyt, alleged damages from a slip and fall incident at a Wal-Mart store. During the discovery process, neither Wal-Mart nor Averyt disclosed any documents related to the incident at the store. During opening statements in trial, Wal-Mart argued that the accident never happened, as there were no supporting documents. During a recess, Averyt’s counsel obtained a City of Greeley document which indicated that the spill did take place. Instead of immediately disclosing this document pursuant to C.R.C.P. Rule 26(e), Averyt’s counsel used it during an ensuing cross examination to impeach Wal-Mart’s representative. Due to this new evidence, Wal-Mart had to switch gears mid trial and defend its actions on a reasonableness basis. Wal-Mart itself then disclosed several documents and people related to the incident which it claimed had just been discovered. Ultimately, the jury found in favor of the Plaintiff. After the trial, counsel for Wal-Mart moved for a new trial, arguing it had been unfairly prejudiced by counsel for Averyt’s failure to properly disclose the City of Greeley document. The trial court agreed and granted the motion.
In reversing the decision of the trial court, the Supreme Court found that the relevant City of Greeley document was a public document equally available to both parties, and was consequently not a document considered necessary for disclosure pursuant to C.R.C.P. 26. The Supreme Court relied on several federal cases, including Tequila Centinela, S.A. de C.V. v. Bacardi & Co., 242 F.R.D. 1, 11 (D.D.C. 2007) (stating that “Typically, courts do not order discovery of public records which are equally accessible to all parties.”). The Supreme Court further ruled that “we apply this general rule (non-disclosure of public documents) 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.”
This important decision has several implications. As a younger lawyer I have always assumed that all relevant documents would be disclosed pursuant to C.R.C.P. 26(a) in order to avoid surprises at trial. The Supreme Court’s ruling in Averyt has provided a loop hole to this foundational purpose of Colorado’s discovery rules and allows for a possible ambush or “Matlock moment” at trial that has been absent in Colorado trials since 1994, when C.R.C.P. 26 was adopted. In other words, parties at trial could potentially be subject to a previously unseen document being presented and entered into evidence simply because it is a public record. As a result of this ruling, attorneys should now spend extra time researching the existence of any public documents that may be relevant to the case, as there is now precedent for their use at trail without being previously disclosed.
