Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 1 of 26

1
2
3
4
5
6

BRENDA H. ENTZMINGER
Nevada Bar No. 9800
PHILLIPS, SPALLAS & ANGSTADT LLC
504 South Ninth Street
Las Vegas, Nevada 89101
(702) 938-1510
Attorneys for Defendant
Wal-Mart Stores, Inc.
UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

8
9

Ruth Ann Stedeford, individually,

10
11
12
13

Case No.: 2:14-cv-01429-JAD-PAL

Plaintiff,

DEFENDANT WAL-MART STORES,

INC.S RESPONSE IN OPPOSITION TO
PLAINTIFFS MOTION TO STRIKE
DEFENDANTS ANSWER OR
ALTERNATIVE SANCTIONS

v.
Wal-Mart Stores, Inc., and DOES 1 through
100; and ROE CORPORATIONS 101 through
200,
Defendants.

14
15
16

COMES NOW, Defendant Wal-Mart Stores, Inc. (Walmart), by and through its attorneys of

17

record, PHILLIPS, SPALLAS & ANGSTADT LLC, and hereby submits its Response in Opposition to

18
19

Plaintiffs Motion to Strike Defendants Answer or for an Adjudication as to Liability or in the

Alternative, for Adverse Presumption or Inference Due to Defendants Spoliation of Evidence Relating

20
21
22
23

to the Subject Action.

I.

PLAINTIFF HAS FAILED TO PROVIDE ANY EVIDENCE THAT WALMART

DESTROYED ANY VIDEO EVIDENCE
A.

Factual Background

24
25
26

Plaintiff Ruth Ann Stedeford (Plaintiff) reported to have slipped and fallen onto her knee at
Store #5101 on December 11, 2013. Though Plaintiff now claims special damages in excess of

27

$1,000,000, arising out of an alleged neck injury, she did not report neck pain to anyone until after she

28

retained counsel. (Dec. Entz., 3, Exh. A). It is undisputed that Plaintiffs doctors examined Plaintiff

-1-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 2 of 26

on the day of the incident and those doctors found no neck injury and made no neck-related diagnosis

whatsoever. (Dec. Entz., 3, Exh. A). In fact, the doctors found no objective evidence of any injury at

all no bruising, swelling, not a scratch. Id. It is no surprise that Plaintiff wants evidentiary sanctions

4
imposed which would unfairly tilt the balance in her favor, because the existing evidence shows that she
5
6

suffered no injury at all that day.

B.

Immediately after the incident was reported to Walmart on the day of the incident, Walmarts

Assistant Manager Sophia Jackson (ne Sophia Huss) filled out a Video Request Form and asked Asset

10
11

Walmart Checked for Relevant Footage and Preserved that Footage

Protection Manager Wanda Stillwell to search for and preserve surveillance footage pertaining to the
incident. (Dec. Jackson). Ms. Stillwell searched for footage of the incident area, copied the footage that

12
13
14
15

she found onto a disc, signed off on the Video Request Form, and provided Ms. Jackson with the signed
form and the disc. (Dec. Jackson). Ms. Jackson put the form and the disc in Ms. Stedefords file. (Dec.
Jackson). Walmarts counsel turned over the disc in that file to Plaintiffs counsel. (Dec. Entz., 4).

16

C.

17

Plaintiff Has Failed to Take a Single Deposition or Conduct Any of the Necessary
Discovery to Bring a Spoliation Motion

The proper and obvious path for Plaintiff to follow if she had concerns about whether there was

18
19

ever any additional footage of the incident area that should have been preserved would have been to

20

depose the individual who checked for surveillance footage pertaining to Plaintiffs incident and

21

documented the results of that search, or to notice an FRCP 30(b)(6) deposition on topics related to that

22

search and its results.

23
However, Plaintiff failed to conduct even basic discovery on this issue, and did not notice or
24
25

conduct a single deposition in this matter during more than ten months of discovery 1. (Dec. Entz., 5).

26
27
1

28

Dkt. Filing Nos. 9, 17, showing that discovery opened on September 22, 2014 and closed on July 1,
2015.
-2-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 3 of 26

Plaintiff never conducted any discovery into the search for surveillance footage pertaining to this

incident or the camera views that were checked during that search. Id. Plaintiff did absolutely nothing

to ascertain any facts whatsoever regarding the search for surveillance footage and the preservation of

4
footage by Ms. Stillwell prior to bringing this Motion. In short, Plaintiff has no basis for accusing
5
6
7

Walmart of having destroyed footage of the fall, when Plaintiff has no evidence that such footage every
existed.

D.

Without any evidence to support her contention, Plaintiff claims that Walmart destroyed ten

10
11

Plaintiff Offers No Evidence that Any Video Footage Existed and Was Destroyed

minutes of video preceding the incident and destroyed video of the incident itself. Plaintiffs accusations
are based solely on conjecture and speculation. First, Plaintiff presumes that because Walmart preserved

12
13
14

surveillance footage from a camera which captured ten minutes of footage of the incident area, that same
camera must have been a fixed camera directed at the incident area both at the time of and ten minutes

15

prior to the incident and must have recorded footage of both the incident itself and the ten minutes prior.

16

Plaintiff has no evidence of either allegation. Second, Plaintiff not only assumes that such footage

17

existed, she likewise assumes that Walmart destroyed that evidence. Worse still, without any basis

18

whatsoever, Plaintiff then accuses Walmart of having deliberately destroyed that evidence.

19
Plaintiffs Motion goes to great and strained lengths to accuse Walmart and Walmarts counsel
20
21

of wrongdoing, not by using any actual evidence from this case, but instead citing to various sanctions

22

orders from around the country, whose facts have no bearing whatsoever on whether evidence was

23

spoliated in this case. Proof positive of the weak motion he writes, Plaintiffs counsel even includes

24

libelous statements about Walmarts counsel, and purposefully misstates facts and law to this Court.

25

(See Section V, infra).

26

In sum, neither the facts nor the law support the imposition of sanctions, given that Plaintiff has

27
not provided any evidence whatsoever that relevant footage ever existed and has not provided any
28

-3-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 4 of 26

evidence of bad faith, intentional destruction, willful suppression, or even negligence to warrant the

striking of an answer, liability sanction, rebuttable presumption, adverse inference, or any other sanction

against Walmart. There is no evidence that anything was spoliated in this matter. Walmart produced

4
the only available footage of the incident area from that date. (Dec. Jackson); (Dec. Entz., 6). Plaintiff
5
6

has repeatedly been apprised of this fact, both in discovery and in correspondence from Defense counsel.

(Plaintiffs Motion). However, rather than actually conducting the basic discovery that would be

necessary to establish the facts regarding the contemporaneous search for footage and the results of that

search, by deposing the individual who checked at the time for surveillance footage pertaining to this

10
11

incident, deposing Ms. Jackson, deposing Ms. Matheny, or noticing an FRCP 30(b)(6) deposition on
related topics, Plaintiff instead has instead chosen to bring this unsupported Motion.

12
Plaintiffs Motion woefully fails to establish any of the requisite elements for imposing any

13
14
15

spoliation sanction against Walmart.

II.

PLAINTIFF HAS FAILED TO MEET HER THRESHOLD BURDEN OF PROOF

16

To prevail on a spoliation motion, it is axiomatic that the moving party must first provide proof

17

that the evidence in question existed. When determining whether to impose discovery sanctions

18

for spoliation, the threshold question that the court must decide is whether relevant evidence

19
existed. Burton v. Walgreen Co., 2015 WL 4228853 at *2 (D.Nev. July 10, 2015) (citing Patton v.
20
21

Wal-Mart Stores, Inc., No. 12-cv-2142-GMN-VCF, 2013 WL 6158467 at *3 (D.Nev. Nov. 30, 2013);

22

see also, Epstein v. Toys-R-Us Delaware, Inc., 277 F. Supp. 2d 1266, 1276-77 (S.D. Fla. 2003) (holding

23

that, in order to prevail on a motion for sanctions for the destruction of a videotape, a party must at a

24

minimum point to some facts indicating that such a video existed) (emphasis added). It is axiomatic that

25

the non-existence of evidence cannot, by itself, establish spoliation. Id.

26

Here, Plaintiffs motion must be denied outright because she has failed to proffer evidence that

27
(1) video of the incident ever existed; or (2) that the missing bottle is relevant evidence that has
28

-4-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 5 of 26

been destroyed.

2
3

In Epstein, the plaintiff alleged that, because Toys-R-Us failed to produce any video of the
incident at issue, Toys-R-Us must have destroyed any such video tape of the incident. See Id. at 1276-

4
77.
5
In denying the plaintiffs motion for sanctions, the Epstein Court found that the plaintiff

wholly failed to point to any record evidence which would support its claim
that a video tape of the incident ever existed, or that any such video was
destroyed by [the defendant]. In order to prevail on a claim for the
destruction of a videotape, Plaintiff must at a minimum point to some facts
indicating that such a video exists. Here, Plaintiff has failed to point to any
facts indicating that a videotape of the incident ever existed.

7
8
9
10
11

Epstein, 277 F. Supp. 2d at 1277 (emphasis added).

The court in Epstein noted that the plaintiff there, as Plaintiff has done here, simply and

12
13

erroneously

14

maintain[ed] that because [the defendant] failed to produce any video of the
incident at issue in this case, [the defendant] must have destroyed any
such video tape of the incident or made the video unviewable.

15
16
17

Id. at 1276-77; cf. Plaintiffs Motion.

Plaintiff therefore has failed to fulfill the basic threshold requirement for moving for spoliations

18
19

sanctions: the necessity that Plaintiff cite to actual evidence indicating that the purported evidence in

20

question ever actually existed. Epstein, 277 F.Supp. 2d at 1276-77. Plaintiff, of course, failed to conduct

21

any discovery that footage of the incident ever existed and was subsequently destroyed by Walmart.

22

Likewise, Plaintiff failed to conduct any discovery of evidence to demonstrate to this Court that the

23
bottle referred to by Ms. Jackson and Ms. Matheny was known by them to be relevant evidence to
24
25

future litigation, such that there existed some duty to preserve.

26

//

27

//

28

//
-5-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 6 of 26

III.

PLAINTIFF NEVER SENT A PRESERVATION OF EVIDENCE LETTER TO

DEFENDANT, AS SHE CLAIMS

Plaintiffs Motion falsely states that [o]n December 19, 2013, only eight days after the accident,

counsel for Plaintiff sent a letter to Defendant See Plaintiffs Motion, 6:1-9. Plaintiff claims that

this letter was received by Defendant and it put Defendant on notice of an obligation to preserve several

types of evidence. The letter is addressed to:

Sedgwick
P.O. Box 34660
Las Vegas, NV 89133
Fax: (479) 204-9531

8
9
10

(Dkt. Filing No. 39, p. 47). The letter directs Sedgwick to preserve evidence on behalf of its insured.

11

First, Sedgwick is not a defendant in this action, thus it is false to state that this letter was sent

12
13
14

to Defendant. Second, Walmart is self-insured and is not an insured of Sedgwick. (Dec. Entz., 7)
Third, there is no evidence of when Sedgwick received this letter. Fourth, and most importantly, there

15

is absolutely no evidence that this letter was ever given to Defendant Walmart or any of its agents.

16

(Dec. Jackson); (Dec. Entz., 8).

17
18

The manager who collected evidence pertaining to this incident, Sophia Jackson, confirms that
she never knew of or received any such letter. (Dec. Jackson). Moreover, Plaintiff conducted no

19
discovery that would suggest that any Walmart manager or associate ever saw or was aware of this
20
21

letter. (Dec. Entz., 8). An attorneys preservation of evidence letter, by its very nature, cannot put

22

a party on notice to preserve anything, unless the party actually receives that notice.

23

//

24

//

25

//

26

//

27
//
28

-6-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 7 of 26

1
2
3

IV.

LEGAL AUTHORITY APPLICABLE TO THE INSTANT MOTION

A. Applicable Standard for Spoliation Determination in Diversity Cases
There are two sources of authority under which the Court can sanction a party for spoliation of

4
evidence its inherent authority or under Federal Rules of Civil Procedure, Rule 37. Leon v. IDX
5
6

Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006). Regardless of whether it is under Rule 37 or its

inherent authority, a federal court applies federal law when addressing issues of spoliation of evidence.

See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (federal law governs the imposition of

spoliation sanctions in diversity matter because that constitutes an evidentiary matter).

10
11

Courts within the Ninth Circuit determine the proper sanction for destruction or suppression of
relevant evidence on a case-by-case basis. Uniguard Security Ins. Co. v. Lakewood Eng. & Mfg. Corp.,

12
13
14

982 F.2d 363, 368 (9th Cir. 1992). A federal trial court has the inherent discretionary power to make
appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence. Med.

15

Lab Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 824 (9th Cir. 2002) (quoting Glover, 6

16

F.3d at 1329).

17

20

B. Four-Part Test for Determination of Whether Spoliation Sanctions Are Proper:

(1) Evidence Existed and a Duty to Preserve Said Evidence;
(2) Evidence Spoliated With Culpable State of Mind;
(3) Evidence Was Known to be Relevant to Future Litigation Before the Loss; and
(4) Whether the Spoliation of Evidence Impairs Plaintiffs Ability to Go to Trial and
Interferes With the Rightful Decision of the Case

21

First, as cited above, the threshold inquiry is whether the subject evidence ever existed. In

18
19

22

bringing a motion for spoliation sanctions, the moving party must first provide proof that the evidence

23
in question existed. See, e.g., Epstein, 277 F. Supp. 2d at 1276-77. Only upon proof that the subject
24
25

evidence actually existed, can the court evaluate whether the non-moving party had a duty to preserve

26

said evidence. Spoliation [] does not occur absent a duty to preserve the evidence or documents. The

27

duty to preserve documents attaches when a party should have known that the evidence may be relevant

28

to future litigation. English v. Wal-Mart Stores, Inc., 2011 U.S. Dist. LEXIS 88955 *11-12 (Dist.
-7-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 8 of 26

Nev. Aug. 9, 2011) (quoting In re Napster Copyright Litigation, 462 F.Supp.2d 1060, 1068 (N.D. Cal.

2006) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003).

Second, spoliation requires that evidence was destroyed with a culpable state of mind. In re

4
Napster, 462 F.Supp.2d at 1078. Third, the moving party must establish that the spoliating party had
5
6

notice of the evidences potential relevance to anticipated future litigation before the evidence was

destroyed. English v. Wal-Mart Stores, Inc., 2011 U.S. Dist. LEXIS 88955 at *11, citing United States

v. $40,955.00 in U.S. Currency, 554 F.3d 752 (9th Cir. 2009). And finally, to be actionable, the

spoliation of evidence must damage the right of a party to bring an action. Gonzalez v. Las Vegas

10
11

Metropolitan Police Dept., 2012 U.S. Dist. LEXIS 46601 *16-17 (Dist. Nev. April 2, 2012), citing
Ingham v. United States, 167 F.3d 1240, 1246 (9th Cir. 1999).

12
13
14

1. Plaintiff Has Failed to Establish that There Was Any Footage of the Incident
As noted above, Plaintiff failed to take the deposition of Ms. Stillwell, the person who checked

15

for and preserved footage. Plaintiff failed to take the deposition of Ms. Jackson, the Assistant Manager

16

who responded to the incident, collected evidence and prepared the Incident Report. Plaintiff failed to

17

take an FRCP 30(b)(6) deposition regarding any issue, let alone any surveillance issue. Further, Plaintiff

18

failed to undertake any discovery into the stores camera locations, their movability or whether any

19
camera was positioned to record footage of the subject incident at the time of the incident. In sum,
20
21
22

Plaintiff failed to uncover any evidence that footage of the incident itself ever existed.
(1) Scope of Duty to Preserve is Defined by Law, Not a Partys Internal Policy

23

Plaintiff contends that because Walmarts policy directs the manager to preserve footage of the

24

incident area, if available, and one hour before the incident and one hour after the incident, Walmart

25

necessarily spoliated evidence by preserving only ten minutes of footage. Walmarts policies do not

26

create law and it is axiomatic that a violation of ones own policy does not constitute some breach of

27
duty. See e.g. McConnell v. Wal-Mart Stores, Inc., 995 F.Supp.2d 1164, 1168 (D.Nev. 2014) (Whether
28

-8-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 9 of 26

Defendant adhered to its own policies [] is simply not relevant to whether it was negligent in this case.

Adherence to insufficient policies will not exculpate a negligent defendant any more than nonadherence

to sufficient policies will inculpate him. Whether a defendant's actions in a particular instance are

4
negligent does not at all depend upon his habits or personal guidelines for his own behavior.).
5
6

Rather, the duty to preserve arises only when a party knows or reasonably should know that

there is a substantial chance that a claim will be filed and that evidence in its possession or control will

be material and relevant to that claim. See In re Napster, 462 F.Supp.2d at 1067 (duty to preserve begins

when a party should have known that the evidence would be relevant to future litigation) (citing Natl

10
11

Assn of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556-57 (N.D. Cal. 1987) (noting, [a]s soon
as a potential claim is identified, a litigant its under a duty to preserve evidence which it knows or

12
13
14

reasonably should know is relevant to the action); see also 1 Weinstein & Berger, Weinstein's Federal
Evidence 301.06[4] at 301-28.3 (2d ed. 2003) ("[T]here must be a sufficient foundational showing

15

that the party who destroyed the evidence had notice both of the potential claim and of the evidences

16

potential relevance.).

17
18

(2) Walmarts Own Protocols Do Not and Cannot Create a Legal Duty to
Preserve Evidence

19

In contrast to the applicable law, Plaintiff contends that Walmart had a duty to preserve at least

20

two hours of footage pursuant to its own Customer Incident Response Protocols. First, internal protocols

21

of any company, like those of Walmart, may certainly hold their employees to higher standards than the

22

law requires, however such high standards would necessarily be discouraged if Plaintiffs argument

23
were true. Following Plaintiffs rationale, every company would be motivated to have the lowest
24
25

possible standards for evidence preservation. Plaintiff fails to provide any legal authority for her unusual

26

and illogical contention, and for obvious reason: there is no federal legal authority which holds a

27

company to a higher duty to preserve evidence merely because the company itself has instituted broad

28

evidence preservation standards.

-9-

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 10 of 26

Rather, the legal duty to preserve is governed by a case-by-case analysis because what may

be relevant in one case is not necessarily what is relevant to another case. See e.g. Uniguard Security

Ins., 982 F.2d at 368 (determination of spoliation of relevant evidence to be determined on a case-by-

4
case basis). The duty to preserve evidence fails in its deterrent value and public policy value unless
5
6

that preservation duty includes only evidence that may be relevant to reasonably foreseeable litigation.

Drew D. Dopkin, Linking the Culpability and Circumstantial Evidence Requirements for the Spoliation

Inference, 51 Duke L.J. 1803, 1809 (2002).

9
10
11

(3) Contrary To Plaintiffs Unsupported Theory, This District Rejects the Notion
that a Stores Own Preservation Directives Equate to a Legal Duty to
Preserve
In English v. Wal-Mart Stores, Inc., Judge Reed denied the plaintiffs motion to strike Walmarts

12
13
14

Answer, and declined to impose any spoliation sanction against Walmart, though Walmart had
undisputedly violated its own policies in failing to preserve photographs, failing to complete an accident

15

report and failing to preserve video surveillance though the manager had viewed video depicting the

16

plaintiffs fall. English, 2011 WL 3496092 at *4-5; see also English, 3:10-cv-00080-ECR-VPC,

17

Document #20, 3:8-20. The plaintiff in English alleged that the defendants failure to preserve the

18

videotape and the photographs prevents the plaintiff from showing that the defendant breached its duty

19
to keep the premises in a reasonably safe condition. English, 2011 WL 3496092 at *4-5.
20
21

The Court in English applied Ninth Circuit authority and other authority from district courts

22

within the Ninth Circuit to rule that Walmarts duty to preserve was neither triggered by nor defined by

23

Walmarts own preservation procedures following a customer accident.

24

concluded that there was no spoliation of evidence by Defendant because Plaintiff has not shown

25

that Defendant destroyed or lost the video and photographs either with culpable intent or in a negligent

26

Id. The English Court

and possibly reckless manner after Defendants duty to preserve the evidence arose. Id. at *4. Critical

27
to the English Courts analysis was what was relevant and in the partys control at the time the duty to
28

- 10 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 11 of 26

preserve was triggered. Id. Therefore, although the store had customer accident procedures in place to

preserve specific items of evidence directly following a customer accident, the existence of such

procedures neither triggered nor defined the stores duty to preserve. Id.

4
Likewise, in Demena v. Smiths Food & Drug Centers, Inc., 2012 U.S. Dist. LEXIS 129024 at
5
6

*9-10, another District of Nevada court applied Ninth Circuit authority to define a partys legal duty to

preserve evidence according to the relevance of the evidence at the time of its loss. In Demena, the

defendant store owner undisputedly had a camera shot of the incident area, but had only saved 65

seconds before the fall and approximately 39 minutes after the fall. Id. at * 1. The plaintiff in Demena

10
11

alleged to have slipped and fallen on a jalapeno pepper on the floor of the stores produce department.
Id. The store manager in Demena reviewed the video surveillance of the incident, but determined that

12
13
14
15

he could not see the jalapeno on the floor. Id. Demena argued that the store had a duty to preserve
additional footage preceding the fall, as that footage would show the jalapeno pepper being dropped
while an employee of the defendant was in the area and failed to notice or clean it up. Id. at *9.

16

The Court in Demena concluded that the video which was destroyed would not tend to support

17

Plaintiffs claim that Defendant was on notice of the jalapeno because, as described by the store

18

manager, the video was of poor quality and it was impossible to see whether a jalapeno, or any other

19
similar item, is on the floor. Id. at *9-10.
20

22

(4) Other Federal Courts Throughout the Nation Reject the Notion that
Walmarts Own Customer Accident Procedures and Preservation Directives
Create a Legal Duty to Preserve

23

The legal duty to preserve is defined by what is known or should be known to be relevant at the

24

time the party knows that litigation is reasonably foreseeable. In re Napster, 462 F.Supp.2d at 1067. In

25

keeping with this legal definition of the duty to preserve, the court in Filanowski v. Wal-Mart Stores,

21

26

Inc., 2000 WL 761890 (D.Me. 2000) declined to impose any spoliation sanctions against Walmart,

27
despite the stores failure to preserve shelving, records, videotapes and notes pertaining to an incident
28

- 11 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 12 of 26

involving falling merchandise. Though the store had not followed its own customer accident response

procedures, the court found that the plaintiff did not offer any evidence that the videotapes or the notes

contained evidence that was even potentially relevant to her claim, and therefore spoliation sanctions

4
were improper. Id.
5
6

In Tomlin v. Wal-Mart Stores, Inc., 81 Ark. App. 198, 100 S.W.3d 57 (2003), the appellate court

affirmed the trial courts finding that no spoliation sanction should be imposed, though the Walmart

manager had thrown away the strap or band that was the cause of the alleged trip and fall and the store

had failed to preserve surveillance footage. The court concluded that the store did not violate any duty

10
11

to preserve because there was no evidence that anyone at the store knew that the surveillance tape
actually showed the presence of the band on the floor, how it got there, or how long it had been there,

12
13
14
15

nor was there any indication that the store manager who disposed of the band knew at the time that it
was potentially relevant or helpful to the customer.
2. Plaintiff Has Failed to Show that Walmart had any Duty to Preserve the Bottle
Referenced in the Incident Report and Written Statement of Ms. Matheny

16
17
18

First, Plaintiff never put Walmart on notice to preserve any evidence, let alone a damaged bottle
of soap that may or may not have been the source of the liquid on which Plaintiff alleged to have slipped.

19

(See Section III, supra). Second, Walmarts discarding of the damaged bottle was pursuant to its normal

20

course of business. (Dec. Jackson); (Dec. Matheny); (Dec. Entz., 4). It is black letter law that [w]hen

21

a defendant destroys evidence according to its internal policies or the normal course of business,

22

that defendant has not engaged in the spoliation of evidence if the defendant had no notice of the

23
evidences potential relevance in future litigation. Burton, 2015 WL 4228854 at*3 (D. Nev. 2015)
24
25

(emphasis added) (citing United States v. Kitsap Physicians Servs., 314 F.3d 995, 1001 (9th Cir. 2002).

26

Third, while Plaintiff now speculates about the potential relevance of this damaged bottle, over four

27

years post-incident, there is no evidence to suggest that Walmart had any notice of the potential

28

relevance of the bottle to future litigation at the time it was discarded.

- 12 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 13 of 26

In Burton, the Honorable James C. Mahan found that Walgreens had a duty to preserve the

bottle of misfilled medication that was returned by the customer to Walgreens, because the customer

had stated it had been misfilled when returning the medication, and Walgreens knew of the potential

4
relevance of the bottle and its contents to future litigation arising out of the misfill. Burton, 2015 WL
5
6

4228854 at *3. Here, by contrast, there is no evidence that the damaged bottle of soap, discovered by

Ms. Matheny at Register 1, was directly involved in this incident. (Dec. Matheny); (Dec. Jackson). In

fact, no one knew the bottle to be the source of the spill, rather Ms. Jackson and Ms. Matheny presumed

it to be the likely source because it was found near Register 1 and because the bottles cap was damaged,

10
11

consistent with a customer having loaded heavy items onto the top of the bottle, thereby indenting its
top. (Dec. Matheny); (Dec. Jackson). Unlike the bottle of misfilled medication in Burton, which was

12
13
14
15

direct evidence of negligence in the lawsuit for personal injuries against Walgreens arising out of
Walgreens misfill, the damaged soap bottle was discarded without any notice of its potential relevance
in this litigation. (Dec. Jackson); (Dec. Matheny).

16

Because both Ms. Jackson and Ms. Matheny confirmed that there was no reason to save the

17

bottle, and indeed it was discarded with the Claims Department pursuant to Walmarts normal course

18

of business, Walmart had no duty to preserve the bottle. (Dec. Matheny); (Dec. Jackson).

19
In Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. 2003), the Texas Supreme Court
20
21

reversed the trial courts spoliation sanction against Walmart and remanded the case for a new trial

22

without any such sanction, finding that Walmarts failure to preserve the item which had fallen onto a

23

customers head and arm did not constitute sanctionable spoliation because Walmart had no duty to

24

preserve the evidence directly following the incident. Id. at 722-23.

25
26

The store supervisor in Johnson had completed an investigation, including notes, photographs
of the reindeer and a written statement from the employee who caused the incident, but the store did not

27
preserve the subject reindeer that had fallen onto Johnson. Johnson, 106 S.W.3d at 722-23. The
28

- 13 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 14 of 26

Johnsons argued that Walmarts extensive investigation on the day of the accident indicated its

awareness of both the potential claim and the reindeers importance to it. Id. In fact, during discovery,

the parties were sharply in dispute about the composition and weight of the reindeer in question,

4
therefore there was no question as to the relevance of the evidence after litigation had commenced. Id.
5
6

However, the Johnson Court found that the critical question was not the relevance at the time of

litigation, but rather whether Walmart knew that the reindeer would be relevant to the Johnsons claim

and whether Walmart knew that at the time of its loss. Id. at 723. The court in Johnson concluded that

no spoliation sanction was proper because the plaintiff had failed to establish that the store had a duty

10
11

to preserve the reindeer. Johnson, 106 S.W.3d at 723.

As in Johnson, the Walmart Manager at Store 5101 in Pahrump had indeed conducted an

12
13
14

investigation and collected evidence, including an incident report, written statements, photographs and
coordinated the preservation of surveillance footage. (Dec. Jackson). However, merely because Walmart

15

performed this investigation, collected evidence, and responded to this customer injury incident does

16

not establish that the Walmart Managers had any duty to preserve a damaged bottle discovered kinda

17

in that area a bottle which may or may not have been the source of the spill. (Dec. Jackson); (Dec.

18

Matheny). Here, the Walmart Managers concluded that a customer had inadvertently damaged the

19
bottle by overloading its top, thereby causing damage to the cap and indenting the top of the bottle. Id.
20
21

The fact that it was left on top of a beverage cooler, near Register 1, indicates that it was indeed a

22

customer who placed it there. Id. Neither Ms. Jackson nor Ms. Matheny had any reason to preserve this

23

evidence, and it was merely discarded in the normal course of business. (Dec. Jackson); (Dec. Matheny).

24

In Tomlin v. Wal-Mart Stores, Inc., 81 Ark. App. 198, 100 S.W.3d 57 (2003), the appellate court

25

affirmed the trial courts finding that no spoliation sanction should be imposed, though the Walmart

26

manager had thrown away the strap or band that was the cause of the alleged trip and fall and the store

27
had failed to preserve surveillance footage. The court concluded that the store did not violate any duty
28

- 14 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 15 of 26

to preserve because there was no evidence that anyone at the store knew that the surveillance tape

actually showed the presence of the band on the floor, how it got there, or how long it had been there,

nor was there any indication that the store manager who disposed of the band knew at the time that it

4
was potentially relevant or helpful to the customer. Tomlin, 81 Ark. App. 198, 100 S.W.3d 57.
5
6

Even though the evidence in Tomlin was the actual instrumentality of the fall the strap/band

the court concluded that the critical issue was whether the manager who disposed of the evidence knew

at the time that it was potentially relevant. Id. As in Tomlin, Walmart had no duty to preserve the subject

damaged bottle because Walmart Managers Heather Matheny and Sophia Jackson had no reason to

10
11
12
13
14

believe it was potentially relevant. (Dec. Jackson); (Dec. Matheny).

3. Plaintiff Bears the Burden of Establishing Spoliation With a Culpable State of
Mind, But Plaintiff Has Failed to Establish that Walmart Spoliated Any Evidence
that it Knew to Be Relevant at the Time of its Loss
It is axiomatic that Plaintiff must establish that the destruction or loss of evidence was done with

15

a culpable state of mind before spoliation sanctions will issue. In re Napster, 462 F.Supp.2d at 1078;

16

English, 2011 WL 3496092 at *4-5 (D.Nev. 2011); Demena, 2012 U.S. Dist. 129024 at *6 (D. Nev.

17

2012). The plaintiff in Demena sought a rebuttable presumption or alternatively, an adverse inference

18

jury instruction. To warrant a rebuttable presumption, the Court held, Defendant must have willfully

19
destroyed the evidence with intent to harm. Demena, 2012 U.S. Dist. 129024 at *6. Though the store
20
21

manager in Demena viewed video footage depicting the incident area and unilaterally concluded that

22

only 65 seconds prior and 39 minutes following the incident were relevant, and allowed the remaining

23

footage of the incident area to be recorded over, the Court concluded that the plaintiff had not carried

24

its burden in demonstrating that a rebuttable presumption [wa]s warranted in this case. Id. at *7.

25
26

Regarding the adverse inference jury instruction requested by Plaintiff Demena, the Court found
that given the cumulative efforts of defendant in preserving evidence related to this accident, it does

27
not appear that these actions are consistent with Defendant acting in a negligent or reckless manner that
28

- 15 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 16 of 26

would warrant an adverse inference jury instruction. Demena, 2012 U.S. Dist. 129024 at *7. The Court

made clear that not even an adverse inference was warranted because the plaintiff has not established

that Defendant acted negligently in deciding that the earlier footage was not relevant. Id. at *8.

4
In English, Judge Reed found that there was no spoliation of evidence by Defendant for
5
6

Walmarts failure to preserve video of the incident area because Plaintiff has not shown that Defendant

destroyed or lost the video and photographs either with culpable intent or in a negligent and possibly

reckless manner after Defendants duty to preserve the evidence arose. English, 2011 WL 3496092 at

*4.

10
11

Plaintiff Stedeford has failed to establish that Walmart was negligent, reckless or deliberate in
failing to preserve any additional footage. First, Plaintiff has not offered any proof that Walmarts

12
13
14

cameras captured the incident. Second, Ms. Jackson confirmed that she asked Ms. Stillwell to check
for footage of the incident area, and if available, to copy one hour prior to the incident and one hour

15

afterward. (Dec. Jackson). Ms. Stillwell confirmed she had completed the task and delivered the

16

available footage to Ms. Jackson in the form of a disc. (Dec. Jackson). Plaintiff cannot establish any

17

culpable state of mind when she has failed to establish the threshold issue of whether the footage of

18

the incident ever existed. Further, Plaintiff has deliberately chosen NOT to depose Ms. Stillwell, NOT

19
to depose Ms. Jackson, NOT to depose an FRCP 30(b)(6) witness, and NOT to conduct discovery into
20
21
22

the existence of footage of the incident itself. Under these circumstances, it is impossible to conclude
that there has been any destruction of evidence with any culpable state of mind.

23

In Woods v. Wal-Mart Stores, Inc., 2005 WL 2563178 (E.D.Vir. 2005), the plaintiff alleged that

24

Walmart had committed spoliation of evidence because Walmart failed to preserve a bottle of Mop &

25

Glo which had produced the spilled liquid that was the source of the alleged slip and fall. Id. at *4-5.

26

Although in the Woods case it was undisputed that the Mop & Glo bottle was the source of the subject

27
spill, and the plaintiff claimed that the bottle would have offered evidence of Walmarts negligence, the
28

- 16 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 17 of 26

district court rejected the demand for any spoliation sanction, holding that Plaintiff has not shown

either that the destroyed evidence was relevant, or that it was destroyed in bad faith. Woods, 2005 WL

2563178at *4-5. The court found that the condition of the bottle itself is largely irrelevant and its

4
destruction does not prejudice the Plaintiff. Additionally, the Plaintiff has put forth no evidence that the
5
6

Defendant acted in bad faith in destroying the bottle. Id.

Though Plaintiff now claims that the bottle is critical evidence to her negligence case against

Walmart, Plaintiff has chosen NOT to depose Ms. Matheny about what she observed, NOT to depose

Ms. Jackson about what she observed and why the bottle was not preserved, NOT to depose an FRCP

10
11

30(b)(6) witness about preservation of evidence policies, and NOT to conduct any discovery into the
discarding of this bottle. Given the Declarations of Ms. Matheny and Ms. Jackson, it is undisputed that

12
13
14

the bottle was discarded in the normal course of business, without any notice whatsoever of any potential
relevance thereof. (Dec. Jackson); (Dec. Matheny). As in Woods, Plaintiff [Stedeford] has put forth

15

no evidence that the Defendant acted in bad faith in destroying the bottle. Woods, 2005 WL 2563178

16

at *4-5.

17
18

In sum, there is no basis for concluding that Walmart failed to preserve evidence it knew or
should have known to be relevant, since Plaintiff has failed to offer any proof that any video footage of

19
the incident itself ever existed and Plaintiff never even bothered to conduct the most rudimentary
20
21
22
23

discovery into either issue of video footage or the damaged bottle.

4. No Spoliation Sanction is Proper Not Even an Adverse Inference Instruction
Because Plaintiff Cannot Establish that Any Spoliated Evidence Impairs Her
Ability to Go to Trial And Threatens to Interfere with the Rightful Decision of the
Case

24
25

As noted above in Burton v. Walgreens, Judge Mahan concluded that Walgreens did have a

26

duty to preserve the bottle and the medication therein because at the time of its loss, Walgreens was on

27

notice of the potential relevance of that evidence to future litigation. Burton, 2015 WL 4228854 at *3.

28

However, Judge Mahan declined to impose any spoliation sanctions, not even an adverse inference,
- 17 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 18 of 26

because plaintiffs inability to examine the pills and prescription bottle does not prejudice plaintiffs

ability to prove causation. Burton, 2015 WL 4228854 at *4. The Court reasoned, Plaintiff has the

information regarding the types of medications, dosages, and the amounts he consumed. Id.

4
In Hatfield v. Wal-Mart Stores, Inc., the Tenth Circuit declined to impose any spoliation
5
6

sanctions where the plaintiff claimed that Walmarts failure to preserve video surveillance prejudiced

her ability to prove constructive notice. 335 Fed.Appx 796, 804 (10th Cir. 2009). The plaintiff in

Hatfield argued that even if the video would or would not have shown the fall, the videotapes would

have provided evidence that Wal-Mart employees did not perform regular sweeps of the store to

10
11

monitor safety conditions, and thus the evidence would have helped her prove constructive notice. Id.
at 804. The Tenth Circuit made clear however that even if Walmart had a duty to preserve such video

12
13
14
15

evidence, the plaintiff could not show that the availability of the video evidence would have changed
the outcome of the trial, and therefore even the least punitive spoliation sanction, an adverse inference
instruction, was not warranted. Id.

16

Similarly, in Gonzalez v. Las Vegas Metropolitan Police Department, No. 2:09-cv-00381-JCM-

17

PAL, 2012 WL 1118949 (D.Nev. 2012), the plaintiff claimed that the defendants failure to preserve

18

video footage of her booking warranted spoliation sanctions because the defendant destroyed the video

19
evidence in violation of its own policies, and the destroyed video would have substantiated her claims.
20
21

Though the Court concluded that a duty to preserve the subject evidence did exist, the Court denied the

22

plaintiffs request for either an adverse inference instruction or a rebuttable presumption instruction

23

because the destruction of the video did not damage Plaintiffs ability to bring this action, does not

24

impair her ability to go to trial, and does not threaten to interfere with the rightful decision of the case.

25

Id. at *8. The Court concluded that the evidentiary value of the video evidence was marginal, at best.

26

Id.

27
In Eagleson v. Kent State University, 2003 WL 21061358 (Ohio Ct. Cl. 2003), the court denied
28

- 18 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 19 of 26

the plaintiffs motion for spoliation sanctions, based on the premises owners failure to preserve an

allegedly defective chair. The plaintiff alleged that she had injured herself when the leg of a chair broke

as she was sitting in the chair on the defendants premises, while attending a conference. At the time of

4
the lawsuit, the defendant could not locate the chair. Eagleson, 2003 WL 21061358 at *1-3. The Court
5
6

in Eagleson held that spoliation was improper because the plaintiff had obtained several photographs

that depicted close up views of the chair. Id. Imposing a spoliation sanction in this case, where the loss

was unintentional, and the plaintiffs ability to prove her case was not significantly impaired, would be

tantamount to imposing strict liability on the part of premises owners unless every item of evidence is

10
11

preserved for such injuries on their premises. Id.

Here, Plaintiff Stedeford has not and cannot show that footage of the incident ever existed.

12
13
14

Plaintiff not only presumes that it did, though she has no evidence to prove it, she likewise presumes
that evidence would have given her everything she needs to prove her case. Plaintiff claims that because

15

there was footage of the incident area at some point in time, and Walmart properly searched for and

16

saved this footage, this must show that (1) footage existed of the fall, (2) that fall was horrendous,

17

causing a serious cervical injury which necessitates two fusion surgeries, and (3) that fall was the fault

18

of Walmart. Plaintiff never bothered to conduct any discovery that would substantiate these claims,

19
however.
20
21

Plaintiff did not bother to depose the any of the managers or associates working in the area at

22

the time of the incident and in fact, she has no evidence of any kind of negligence on the part of Walmart.

23

This is precisely why she now makes outrageous unsupported demands for spoliation sanctions, in hopes

24

that she can make up for the discovery she failed to conduct.

25
26

The simple fact is that Plaintiff conducted no discovery to prove that video footage of the fall
ever existed, but Plaintiff now wishes to use the footage that Walmart did save as a means of rewriting

27
history. However, Plaintiffs contemporaneous medical records do not lie. She cannot use accusations
28

- 19 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 20 of 26

of spoliation to hide from the truth. Plaintiff herself told her doctors that she fell on her left knee, and

she had pain in ONLY her left knee and low back. (Dec. Entz., 3, Exh. A). She never complained of

any pain in her neck, and never gave her doctors any reason to diagnose her with any neck-related

4
diagnosis. Id. In fact, her doctors found no sign of any objective injury whatsoever. (Dec. Entz.). She
5
6

did not even have a bruise on her knee. Id. Her doctors ensured that she had x-rays taken of her lumbar

spine and her knee, but there was no need for a cervical spine x-ray because there was no cervical spine.

Id.

9
10
11

Plaintiff cannot demand the Court guess about what evidence may or may not have existed at
some point in time it is Plaintiffs burden of proof to establish the spoliation of evidence did indeed
occur. This she has not done, and so the inquiry should end. If, however, the remaining elements are

12
13
14

evaluated, it is apparent that Plaintiff (1) failed to show that Walmart had any duty to preserve any
additional footage, (2) failed to show that Walmart had any duty to preserve the bottle found at Register

15

1, (3) failed to show that either additional footage or the bottle was destroyed despite knowledge of its

16

potential relevance to future litigation at the time of its loss, (4) failed to show that either additional

17

footage or the bottle was destroyed with a culpable state of mind, and (5) failed to show that the

18

destruction of additional footage or the bottle has impaired her ability to go to trial or interfered with

19
the rightful decision in this case. Plaintiff has not taken a single deposition or proffered any other
20
21

evidence to sustain her burden of proof on any one of these elements.

23

PLAINTIFFS COUNSELS LIBELOUS CLAIMS AGAINST WALMARTS COUNSEL

AND HIS DELIBERATE MISSTATEMENTS OF FACT TO THIS COURT WARRANT
SERIOUS SANCTIONS BY THIS COURT

24

Proof positive of a weak motion, Plaintiff cites to numerous Walmart discovery abuse cases

25

throughout the country from long ago to try to inflame this Court against Walmart in this case. Even

22

26

V.

by citing to more recent spoliation sanctions imposed in other cases, Plaintiff offers no application or

27
authority, only an obvious smear campaign. Plaintiffs counsel knows that these cases have no bearing
28

- 20 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 21 of 26

on whether Walmart committed spoliation of evidence in this case, yet he spends no fewer than four

pages of the motion citing to completely irrelevant, inapposite matters. As none of those cases has any

application to the instant motion, Defendant will not waste the Courts time addressing each.

4
What does merit redress, however, are Plaintiffs libelous statements about Walmarts counsel,
5
6

and Plaintiffs counsels misstatements of fact and law to this Court. Plaintiffs counsels lack of

shame and lack of ethics is making these false statements are appalling. First, he tells this Court that

the undersigned counsel for Walmart engaged in such egregious discovery misconduct and spoliation

of evidence that the Discovery Commissioner determined that the only appropriate sanction was the

10
11

striking of the Defendants answer as to both liability and damages. (Plaintiffs Motion at 13).
Plaintiffs counsel further commits libel in his briefs headers, titled The Defendant and its Counsel

12
13
14

Have a Long History of Discovery Misconduct and Spoliation of Evidence, and Phillips Spallas and
Entzminger History of Discovery Abuse. (Plaintiffs Motion at 9 and 13). Each of these statements

15

is false. Plaintiffs counsel has not only reduced this slander to writing, in a public record, worse still,

16

he has lied to this Court.

17

The undersigned was NEVER sanctioned by the Discovery Commissioner or the District Court

18

in the Reichardt v. Blue Martini matter for ANY discovery misconduct. 2 (Dec. Entz., 9, 10, Exhs. C,

19
20
2

21
22
23
24
25
26
27

Neither the Discovery Commissioner nor District Court Judge Delaney (who adopted the
Commissioners recommended sanctions) ever once suggested, stated or concluded that the undersigned
or her law firm bore any responsibility whatsoever for her clients pre-litigation conduct in failing to
preserve the video, any responsibility for her clients testimony about the video while a predecessor law
firm represented the client, or any responsibility for her clients misleading discovery responses and
disclosures which were served while a predecessor law firm represented the client. (Dec. Entz., 9,
10, Exhs. C, D, and E, DCRR, Plaintiff Reichardts May 7, 2012 filed Motion, and the April 30, 2012
filed Substitution of Attorney). In fact, because the deposition, disclosures and discovery responses
(which had preceded the undersigneds involvement) were of concern to the Commissioner and were a
part of the spoliation motion filed by Plaintiff only seven days after the undersigneds appearance in the
case, the Commissioner ordered that Blue Martinis prior counsel, Adam Breeden, take the stand at the
Evidentiary Hearing on the motion. (Dec. Entz., 9, 10, Exhs. C, D, and E).

28

- 21 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 22 of 26

D, and E). In fact, Reichardts Motion for Spoliation Sanctions was filed on May 7, 2012, but the

undersigned and her law firm, Phillips, Spallas and Angstadt, did not commence representation of

Defendant Blue Martini until April 30, 2012 seven days prior. (Dec. Entz., 9, 10, Exhs. C, D, and

4
E). It is a factual impossibility for the destruction of video, deposition testimony and discovery responses
5
6

which formed the basis of the Motion to have arisen out of the undersigneds prior seven days of

representation. Id. Further, the Discovery Commissioner NEVER concluded nor ever even suggested

that the undersigned or her law firm had done ANYTHING improper when the Commissioner

recommended severe spoliation sanctions against Blue Martini. Id. Rather, the undersigned took over

10
11

as counsel for Blue Martini on April 30, 2012, after two other law firms were previously discharged.
Id. Not only was this seven days before Plaintiff Reichardt filed her Motion for Spoliation, it was also

12
13
14

two years and five months after litigation had commenced. (Dec. Entz., 9, DCRR, 3:8, Plaintiffs
Complaint filed in January 2010). Every single act or omission of conduct relied upon by the Discovery

15

Commissioner in her Report and Recommendations for sanctions against Blue Martini had PRECEDED

16

the undersigneds involvement in the case 3. (Dec. Entz., 9, 10, Exhs. C, D, and E).

17
18
19
20
21
22
23
24
25
26
27
28

Plaintiffs counsel goes onto commit further libel, stating that Blue Martini has now filed a legal
malpractice action against Brenda Entzminger and Phillips Spallas based upon their legal malpractice
which led to these severe spoliation sanctions. (Plaintiffs Motion at 13). This, too, is false. The
Commissioners finding of Blue Martinis intentional misconduct led Blue Martinis insurance carrier,
who had hired the undersigned as defense counsel, to pull coverage. (Dec. Entz., 11, Exh. F). In their
Complaint, Blue Martini alleges that the undersigned and her law firm conspired with the insurer to
withdraw insurance coverage, and they further allege that this withdrawal of coverage caused them to
enter into a stipulated consent judgment with Plaintiff Reichardt. (Dec. Entz., 11, Exh. F). While the
allegations of malpractice are false, and the lawsuit is frivolous, Plaintiffs counsel commits further libel
when he falsely states in the Motion that the undersigned and her law firm have committed malpractice,
that this malpractice action stems from discovery abuses the undersigned committed, and that Blue
Martini blames the undersigned for having caused the severe spoliation sanctions it received. Each
of these statements is absolutely false and the Blue Martini Complaint offers no basis in fact for
Plaintiffs counsels libelous statements against the undersigned and her law firm. (Dec. Entz., 9-11,
Exhs. C-F).
3
To wit, the Commissioner concluded that Blue Martini had failed to preserve video evidence prelitigation, had concealed the existence of video evidence post-litigation, and in its discovery responses

- 22 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 23 of 26

1
2

Incredibly, Plaintiffs counsel goes even further in his false statements against both the
undersigned and Walmart. The Motion provides:

The Blue Martini case, while especially egregious, is far from the only time
that Walmart has been found to have engaged in the destruction of evidence
in this jurisdiction while represented by Phillips Spallas. (Patton Order
Granting Motion for Sanctions for Walmarts Spoliation of Evidence [],
Mack Order Granting Motion for Sanctions for Walmarts Spoliation of
Evidence [], Discovery Commissioner Report and Recommendation
Granting Sanctions for Walmarts Spoliation of Evidence []).

4
5
6
7
8
9
10
11

(Plaintiffs Motion, 13:16-22).

It is incredible how many misstatements of fact and law Plaintiffs counsel presents in these
lines alone.
1. First, the Reichardt v. Blue Martini case did not involve Walmart in any way whatsoever,

12
13
14

and thus the Blue Martini case is not any example of a time that Walmart has been found
to have engaged in the destruction of evidence[.] That statement is false.

15

2. Second, Plaintiffs counsel cites to the Patton Order as an example of a time that Walmart

16

has been found to have engaged in the destruction of evidence in this jurisdiction while

17

represented by Phillips Spallas. This is false.

18
19
20
21
22

a. In Patton, Judge Ferenbach imposed an adverse inference jury instruction as a

spoliation sanction for Walmarts pre-litigation failure to preserve surveillance
footage showing Associate Michael Burtons entry into the subject aisle, prior to the
incident.
b. Judge Ferenbach concluded that the evidence was destroyed within 45 days of the
incident date, in July 2011, because Walmart had not actively copied (or preserved)
that surveillance footage before it was overwritten.

23
24
25
26
27
28

c. Because the undersigned and her law firm did not represent Walmart in the Patton
case until November 2012, and the underlying spoliation was found to have occurred
in July/August 2011, it is a factual impossibility for this case to serve as an example

and disclosures, it had misled the plaintiff about where the incident took place. These post-litigation
discovery issues preceded the undersigneds representation of Blue Martini. (Dec. Entz., 9-10, Exhs.
C-E).

- 23 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 24 of 26

1
2
3
4

of Walmart having engaged in the destruction of evidence in this jurisdiction while

represented by Phillips Spallas.
See Patton v. Wal-Mart Stores, Inc., No. 12-cv-2142-GMN-VCF, 2013 WL 6158467 (D.Nev. Nov. 30,
2013).
3. Third, Plaintiffs counsel cites to the Mack Order as an example of a time that Walmart has

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

been found to have engaged in the destruction of evidence in this jurisdiction while
represented by Phillips Spallas. This is false.
a. In Mack, Judge Sandoval imposed an adverse inference jury instruction as a
spoliation sanction for Walmarts pre-litigation failure to preserve surveillance
footage showing the plaintiffs incident in September 2005. The responding
manager viewed the footage, but neglected to ensure it was preserved.
b. Judge Sandoval found that the footage at issue was only available for approximately
30 days after the incident. After that period, it was overwritten by Walmarts CCTV
system. Any spoliation of evidence therefore occurred in September/October 2005.
c. Because the undersigned and her law firm did not represent Walmart in the Mack
case until August 2006, and the underlying spoliation was found to have occurred in
September/October 2005, it is a factual impossibility for this case to serve as an
example of Walmart having engaged in the destruction of evidence in this
jurisdiction while represented by Phillips Spallas.
Mack v. Wal-Mart Stores, Inc., 2:07-cv-009820PMP-RJJ, Dkt. Filing No. 1 (Exh. A, Complaint); Dkt.
Filing No. 76 (Order issued on July 15, 2008).
4. Finally,

Plaintiffs

counsel

attaches

Discovery

Commissioner

Report

and

Recommendation in the Mora v. Walmart matter, again claiming that this serves as evidence

20
of Walmart engaging in the destruction of evidence while represented by Phillips Spallas.
21
22
23

This is false.
a. As with Patton and Mack, the Mora matter involved allegations of spoliation arising
out of the stores pre-litigation failure to preserve evidence.

24
25
26
27
28

b. The underlying incident and alleged spoliation was in July 2002, but the undersigned
and her law firm did not represent Walmart in that case until September 2003. It is
therefore a factual impossibility for this case to serve as an example of Walmart
having engaged in the destruction of evidence in this jurisdiction while represented
by Phillips Spallas.
c. Here, Plaintiffs counsel not only misstates fact, he further misstates the law
because the Nevada Supreme Court overturned the district court and discovery
- 24 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 25 of 26

1
2

commissioners imposition of sanctions in the Mora v. Walmart case.

(Dec. Entz., 12; Exh. G, Nevada Supreme Court Order Granting Writ of Mandamus).

3
4

Again misstating facts and law, Plaintiffs counsel cites to Wal-Mart Stores, Inc. v. Johnson,
39 S.W.3d 729 (Tex.App. 2001), and states that the trial court properly gave a spoliation instruction to

5
6
7

the jury, allowing jury to draw an inference that the reindeer, if produced, would be unfavorable to
Wal-Mart. (Plaintiffs Motion, 11:22-27). Any effort to shepardize this case, rather than recklessly

smear Walmart, would have revealed that the Supreme Court of Texas reversed the appellate court

decision in Johnson, finding that the spoliation sanction was improper. Wal-Mart Stores, Inc. v.

10

Johnson, 106 S.W.3d 718 (Tex. 2003). As discussed above, the Texas Supreme Court reversed the lower

11

courts spoliation sanction against Walmart and remanded the case for a new trial without any such

12
sanction, finding that Walmarts failure to preserve the item which had fallen onto a customers head
13
14

and arm did not constitute sanctionable spoliation because Walmart had no notice of the potential

15

relevance of the reindeer to future litigation at the time of its loss. Id. at 722-23.

16

VI.

CONCLUSION

17

Plaintiff has offered no evidence to establish that there was relevant evidence that was indeed

18

destroyed by Walmart and known to be relevant at the time of its loss. Plaintiff did not bother to depose

19

Ms. Stillwell, Ms. Jackson, or Ms. Matheny about any of the evidentiary issues in this case before

20
bringing this Motion. Plaintiff therefore fails in meeting her initial burden of proof to establish that
21
22

footage of the incident existed. Further, Plaintiff has utterly failed to show that Walmart knew such

23

footage to be potentially relevant to a future litigation at the time it was destroyed, that Walmart

24

destroyed that footage with a culpable state of mind, and that the destroyed footage impairs Plaintiffs

25

ability to go to trial.

26
27

Plaintiff likewise fails in satisfying her initial burden of proof to establish that the damaged bottle
was known to be relevant at the time of its loss and that Walmart had a duty to preserve that bottle.

28

- 25 -

Case 2:14-cv-01429-JAD-PAL Document 44 Filed 01/22/16 Page 26 of 26

Additionally, Plaintiff has not demonstrated that Walmart destroyed the bottle with a culpable state of

mind or that the bottles absence from this case somehow impairs Plaintiffs ability to go to trial.

Plaintiff cannot use her lack of discovery, lack of diligence and lack of evidence as a sword

4
against Walmart. Spoliation sanctions require satisfaction of specific elements, and Plaintiff bears the
5
6

burden of proof on each of those elements. A Court should not have to resort to guesswork and

conjecture to determine whether a party deserves to have evidentiary sanctions imposed. There are

serious sanctions requested, and it is Plaintiff who should have taken these issues seriously when she

had the opportunity to investigate them during the ten-month discovery period. Plaintiff is certainly not

10
11

entitled to any presumption of truth based on her counsels say-so. This is most especially true where
her counsel has included numerous misstatements of fact in his brief filed with this Court.

12
13
14
15

Plaintiff has utterly failed to meet the elements required to warrant spoliation sanctions. This
case does not even merit the least of sanctions requested by Plaintiff.
DATED this 22nd day of January, 2016

16

PHILLIPS, SPALLAS & ANGSTADT LLC

17

/s/ Brenda Entzminger

18

______________________________________
BRENDA H. ENTZMINGER
Nevada Bar No. 9800
PHILLIPS, SPALLAS & ANGSTADT LLC
504 South Ninth Street
Las Vegas, Nevada 89101
(702) 938-1510

19
20
21
22
23

Attorneys for Defendant

Wal-Mart Stores, Inc.

24
25
26
27
28

- 26 -