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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

RHONDA MICHELLE BRITTON et al.,

Plaintiffs,

v. CASE NO. 4:11cv32-RH/WCS

WAL-MART STORES EAST, LP.,

Defendant.

____________________________________/

ORDER ON PENDING MOTIONS

This order confirms and in some respects adds to the rulings announced on

the record of the hearing on June 27, 2011, and rules on other matters that have

become ripe since that hearing.

IT IS ORDERED:

1. The parties’ joint motion, ECF No. 89, to delay entry of an order on the

plaintiffs’ motion for sanctions, ECF No. 33, pending settlement efforts, is

GRANTED IN PART. The entry of this order has been delayed, but a mediation

report now indicates that settlement efforts failed, so the entry of this order has not

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been delayed further. 

2. The plaintiffs’ consented motion, ECF Nos. 87 & 88, to extend the

deadline for responding to the defendant’s objections to the report and

recommendation is GRANTED. The response as filed, ECF No. 91, is deemed

timely and has been considered.

3. The report and recommendation, ECF No. 73, is accepted in part and

rejected in part. An appropriate sanction for the defendant’s willful destruction of

relevant evidence—including an award of costs and attorney’s fees—will be

imposed after the return of a verdict or other resolution of the merits. But the

defendant is not foreclosed from defending any issue on the merits. The plaintiff

may present evidence at trial that the defendant destroyed evidence. The defendant

may contest the evidence. The jury will be properly instructed on the defendant’s

duty to preserve evidence and on the jury’s discretion to draw an adverse inference

from a bad-faith destruction of evidence. 

4. The plaintiff’s motion to compel production, ECF No. 75, is GRANTED

IN PART and DENIED IN PART. The defendant must produce an unredacted

version of the email chain that has been filed in redacted form as ECF No. 65-1

(and it is noted that the defendant apparently has already done so, see ECF No. 93). 

That email chain refers in the first paragraph to an earlier email of December 1,

2009, from Jeff Sutherland. See ECF No. 93 at page 2 of 3. By August 4, 2011,

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the defendant must file under seal for in camera review an unredacted copy of the

referenced December 1 email. The motion to compel is denied with respect to

other documents that relate to the same subject matter as the email chain. 

5. The plaintiffs’ initial motion to compel production, ECF Nos. 76, has

been superseded by a corrected version and thus is DENIED AS MOOT.

6. The plaintiffs’ corrected motion to compel production, ECF No. 77, is

GRANTED IN PART and DENIED IN PART, as follows:

a. For request 2, the motion is denied as moot, because the defendant has

agreed to produce any indemnification agreement that applies to this claim, and the

plaintiff has withdrawn any broader request. 

b. For request 3, the motion is denied, because the plaintiffs said at the

hearing that they sought the documents only to show that Wal-Mart Inc. policies

were applicable to this store—and at the hearing the defendant expressly admitted

it. No ruling is made on any objection to evidence of Wal-Mart Inc. policies on

other grounds. 

c. For requests 4, 5, and 7, the motion is denied.

d. For request 10, the motion is denied, but the defendant must provide

the plaintiffs the full name and last known address of Dave Gorman.

e. For request 14, the motion is granted. The defendant must produce

any index described in the request.

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f. For request 17, the defendant must file a response to the motion within

five days after the plaintiffs notify the defendant of the city and year of the death at

issue—without an additional three days based on the manner in which the

information is provided.

g. For request 18, the defendant must file a response to the motion by

August 4, 2011. 

h. For request 20, the motion is granted. The defendant must produce

any requested documents.

i. For request 23, 25, and 26, the motion is denied.

j. For request 32, the motion is granted in part. The defendant must

produce any requested policies that apply to digital cameras.

k. For request 35, the motion is denied. But the parties should confer in

an effort to agree on an exhibit for use at trial showing the store’s floorplan.

l. For request 36, the motion is denied as to Mr. Gautier and otherwise

denied as moot, on the ground that for others the defendant has provided the

requested documents (with redactions that the plaintiffs have not challenged to this

point).

m. For request 37, the motion is granted. The defendant must cause a

diligent search to be made—in Bentonville, Tallahassee, and any other location

where video or audio recordings may be located—for video or audio recordings of

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events inside or outside the store at issue for all or any part of the period from the

time the plaintiffs first arrived on the property until they left. A recording, for this

purpose, includes a recording made or preserved in any form. The defendant must

file a declaration by August 18, 2011, setting out the scope and results of the

search. Any recording that has not already been produced to the plaintiffs must be

produced within three days after it is located or by August 18, 2011, whichever is

earlier. 

n. For requests 39 and 40 (as limited by the plaintiffs to digital cameras),

the motion is granted, in accordance with the defendant’s supplemental response. 

The defendant must produce the requested documents for digital cameras. 

o. For request 42, the motion is denied.

p. When this order requires documents to be produced and does not set a

different deadline, the deadline for production is August 11, 2011. 

7. The plaintiff’s motion, ECF No. 78, for a ruling that the minor plaintiffs’

claims are for “child abuse” within the meaning of § 768.735, Florida Statutes, is

denied without prejudice to a request for appropriate jury instructions or other

rulings at trial. The first amended complaint is construed as asserting the “child

abuse” theory. No ruling is made on the merits of the theory.

8. The clerk must set a case-management conference or hearing on a 

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discovery motion by telephone promptly upon a party’s request.

SO ORDERED on July 28, 2011.

s/Robert L. Hinkle 

United States District Judge 

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