Wal-Mart Stores, Inc. v. Dickinson, No. 1999-SC-0758-MR.

• Decision Date: 28 September 2000
• Docket Number: No. 1999-SC-0758-MR.
• Citation: 29 S.W.3d 796
• Parties: WAL-MART STORES, INC., Appellant, v. Benjamin L. DICKINSON, Judge, Barren Circuit Court, Appellee, and Deloris Laurenz, Real Party in Interest.
• Court: United States State Supreme Court — District of Kentucky

29 S.W.3d 796

WAL-MART STORES, INC., Appellant, v. Benjamin L. DICKINSON, Judge, Barren Circuit Court, Appellee, and Deloris Laurenz, Real Party in Interest.

No. 1999-SC-0758-MR.

Supreme Court of Kentucky.

September 28, 2000.

COPYRIGHT MATERIAL OMITTED

Richard H.C. Clay, Christopher R. Cashen, Woodward, Hobson & Fulton, L.L.P., Lexington, for Appellant.

Benjamin L. Dickinson, Judge, Barren Circuit Court, Glasgow, for Appellee.

Temple Dickinson, Gillenwater, Hampton & Dickinson, Glasgow, for Real Party in Interest.

JOHNSTONE, Justice.

Wal-Mart, Stores, Inc., appeals to this Court as a matter of right from a Court of Appeals' order denying its petitions for writs of prohibition. We affirm in part and reverse in part.

Debris Laurenz was the victim of a purse snatching in the parking lot of the Glasgow, Kentucky, Wal-Mart. She suffered injuries as a result of this crime. Subsequently, Laurenz sued Wal-Mart alleging that it had assumed the responsibility for the safety of persons using the parking lot, thereby creating a duty which it breached when it failed to prevent the purse snatching in question or adequately warn her of the potential danger.

In the course of discovery, Laurenz propounded numerous discovery requests including a request for production of documents. The document production request was concerned primarily with the amount and type of information available to Wal-Mart at or before the purse snatching concerning crime rates, crime prevention, types and patterns of parking-lot crimes, as well as general security information such as manuals, treatises, etc.

On the eve of trial in February 1998, Laurenz's expert arrived from out of town and brought with him a copy of an industry magazine for the retail security industry. The magazine contained an article by David Gorman who was Wal-Mart's vice president for loss prevention at the time. In the article, Gorman described the development and features of Wal-Mart's parking lot security patrol. The article also made reference to "a survey that looked at crime statistics for a one-year period on Wal-Mart properties." According to the survey, 80 percent of crimes at Wal-Mart occurred outside of the stores, primarily in the parking lots.

Laurenz presented the article to the trial court on the day of trial and moved for a continuance. The trial court granted the motion. In the words of the trial court:

[T]his action was continued in February 1998 because WAL-MART, INC. had not furnished information in it's (sic) possession (written by its own employee) properly requested during discovery. WAL-MART, INC., through counsel, apologized to the Court profusely and made sweeping offers to make everything right so we could get on with the case. The offer included flying plaintiff's attorney to Bentonville, Ark. to take a number of depositions of WAL-MART, INC. loss prevention employees.

Laurenz v. Wal-Mart, Inc., 96-CI-00115 at 2 (Barren Circuit Court Order entered on May 7, 1999).

In spite of its sweeping offer, Wal-Mart continued to delay discovery and was non-responsive to Laurenz's repeated requests for the promised information. Five months after the original trial date, Laurenz sent Wal-Mart a formal document request entitled: Supplemental Interrogatories, Request for Production of Documents and Request for Admissions Propounded to Defendant Wal-Mart. Two and a half months later, Wal-Mart responded with numerous objections and indicated that many of the requested documents did not exist. This response was signed by one T.J. Vestal. Wal-Mart now maintains that Vestal is a paralegal who works under the direction and supervision of Wal-Mart's in-house counsel and in close association with outside counsel, though she is not identified as such in the response.

Subsequently, Laurenz filed a motion to compel. A hearing was held on the motion on November 23, 1998, at which Wal-Mart continued to deny the existence of many of the requested items. At the hearing, the possibility of deposing Ms. Vestal was first raised. Her status as a paralegal was not made known at that time. A new trial date was set for March 4, 1999.

Following this hearing, Laurenz's counsel made repeated efforts to set a date and time for the depositions of Wal-Mart's loss prevention employees pursuant to the promises made by Wal-Mart's counsel. On February 9, 1999, Laurenz's counsel was informed that the depositions could be taken in Bentonville, Arkansas, on February 12, 1999, but Gorman and Vestal would not be available at that time. After failing to establish another date in which Gorman would be available, Laurenz's counsel went to Bentonville on February 12, where he took three other depositions.

At these depositions, Wal-Mart's counsel inadvertently revealed that he had spoken to both Gorman and Vestal earlier that day at Wal-Mart's main office in Bentonville. However, even though this was contrary to his earlier representation that neither Gorman nor Vestal would be in Bentonville on February 12, Wal-Mart's counsel declined to make them available for deposition on the grounds that they had already left Bentonville. Also, it was learned at the depositions that several security training videotapes that Laurenz had sought pursuant to discovery requests did in fact exist. Wal-Mart had repeatedly denied the existence of the tapes.

Laurenz made a motion to compel and/or to continue the trial. The motion for a continuance was based in part on the fact that Wal-Mart finally had provided dates for Gorman's deposition, all of which were after the scheduled trial date. Wal-Mart did not fare well at the hearing and was ordered to conclude discovery before trial. Wal-Mart's counsel, then John David Cole, Jr., stated that he had arranged for a private plane, leaving at 7:00 a.m. the next morning, to fly both himself and Laurenz's counsel to Bentonville to take the depositions of Gorman and Vestal and to allow a "walk through" of Wal-Mart's loss prevention center. The trial court ordered this be done and denied the motion for a continuance.

Later that evening, Laurenz's counsel received a message from Cole stating that Cole no longer represented Wal-Mart and that the flight to Bentonville was canceled.

Woodward, Hobson & Fulton, in the persons of Christopher R. Cashen and Richard H.C. Clay, entered on Wal-Mart's behalf and the case was continued again. Cashen and Clay moved for a protective order concerning Vestal's deposition and the walk through. The trial court denied the motion. Wal-Mart then petitioned the Court of Appeals for a writ of prohibition to prohibit the trial court from enforcing its order allowing the walk through and the deposition of Vestal. The Court of Appeals summarily denied the petition and Wal-Mart appeals that decision to this Court as a matter of right. We affirm in part and reverse in part.

STANDARD OF REVIEW

A writ of prohibition is an extraordinary remedy, and we have always been cautious in granting such relief. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961). In order for a writ of prohibition to be appropriate in cases where jurisdiction is not challenged, a petitioner must show that: (1) he would have no adequate remedy on appeal; and (2) he would suffer great and irreparable injury if the trial court is acting in error and the writ is denied. Id. at 801.

As a practical matter, whenever a discovery violation occurs that allegedly allows discovery in error, a party will not have an adequate remedy by appeal because "once the information is furnished it cannot be recalled." Id. The information may or may not be used at trial and, generally, the admissibility of the information is not affected by the discovery violation. See, e.g., Transit Authority of River City v. Vinson, Ky.App., 703 S.W.2d 482, 486 (1985) ("[W]ork product immunity protects only the documents themselves and not the underlying facts.") Thus, when information that is obtained from a party in violation of the discovery rules is admitted as evidence at trial, this fact alone does not provide grounds for objecting to the introduction of the evidence and, hence, an aggrieved party has no means of preserving the issue for appeal.¹

The trial court order concerning both the walk through and the deposition of Vestal involves allegations of a violation of the discovery rules, which allegations concern the disclosure of information in error as opposed to the denial of discovery in error. Compare Bender, supra, (petitioners had no adequate remedy on appeal for an erroneous trial court order allowing discovery of information obtained in violation of the civil rules) with Roberts v. Knuckles, Ky., 429 S.W.2d 29 (1968) (petitioners had adequate remedy by way of appeal for alleged trial court error denying discovery of certain information). In regard to both the walk through and Vestal's deposition, we believe that Wal-Mart would not have an adequate remedy on appeal if the court order is in error. Now we turn to the issue of irreparable harm.

As to Vestal's deposition, Wal-Mart argues that "Laurenz's attempt to depose her is no different than an attempt by Laurenz to depose opposing counsel." Assuming that Wal-Mart is correct, it has made an initial showing of irreparable harm as to her deposition, See McMurry v. Eckert, Ky., 833 S.W.2d 828, 830-831 (1992). However, the issue of irreparable harm is not so clear as to the walk through.

Wal-Mart makes no specific claims as to irreparable harm arising from the walk through. Rather it argues that the trial court erred in denying the protective order because its "headquarters are not open to the public and contain extremely sensitive, proprietary, confidential information and trade secrets." The disclosure of a trade secret, such as the formula for Coca-Cola, clearly justifies the entry of a protective order. See CR 26.03(1)(g). Most likely, disclosure of a trade secret would likewise rise to the level of irreparable harm as the potential harm could...