Whether Wal-Mart deliberately chose not to provide the documentary evidence

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Holly Averyt V. Wal–Mart stores, Inc.

Question: Whether Wal-Mart deliberately chose not to provide the documentary evidence.

As construed in the case, Wal-Mart could not recall the existence of the spill till when the company’s corporate representative Shommer, was being cross-examined by Averyt’s attorney. The company claimed to have located an assistant manager who remembered the occurrence of the grease spill and were willing to provide the needed documents. However if Wal-Mart had acted in bad faith and deliberately chose not to disclose the evidence of the grease spill then it may be because such was going to be self-incriminating in the face of it. The company took the position that they did not know the existence of grease spill, and would not want to aid the plaintiff prove his case. Factually, while Wal-Mart persistently denied the plaintiff’s claim, the Greely report posted a memorandum referencing a grease spill and a related investigation and cleanup at Wal-Mart.

As a matter of fact, Walmart would indeed be working within the parameters of the law which provides that no person can be compelled to adduce evidence against himself. The privilege against self-incrimination is provided for by the constitution as well as most state laws. The Fifth Amendment to the U.S provides that no person shall be compelled to be a witness against himself. In the case of United States v. Hubbell, 530 U.S. 27 (2000) the Fifth Amendment was interpreted to harbor testimonial and documentary evidence. With the company risking a criminal case in negligence after the civil proceeding, it would be wise not to release such incriminating evidence. Therefore, it is up to the defendant to exercise the privilege of not providing self-incriminating evidence that would later on be used in instituting a separate criminal proceeding.

Question: Whether the jury considered Walmart’s conduct

The jury did not consider Walmart’s conduct when it reached its verdict but based its decision entirely on the Greely report. The issue was whether Wal-Mart had acted in a negligent manner with regard to the grease spill and proof of that would be conclusive. The plaintiff then introduced the Greely report and the question was whether it was admissible. Since it had not been made available to the defense and was introduced for the first time in the court, Wal-Mart’s attorney claimed that such was in violation of the civil procedure rules. If such evidence was found to be admissible, then it would form the basis of determining whether Wal-Mart was negligent or not.

Certainly, if the trial court would have later on found that indeed such evidence was in violation of the law and could not be adduced or admitted, then the jury’s decision would have been overruled in the face of it. To the contrary, if the defendant’s conduct of refusing to give self-incriminating evidence had been relied upon in coming up with the ruling, the legal question of the defendant’s position with respect to self-incriminating evidence would rise. The jury would have to explain, when coming up with their conclusion, that the defense acted in bad faith and prove that they (the defense) had the legal obligation to provide the plaintiff with documentary evidence. Since the jury isolated this issue when making its ruling, it goes without say that Wal-Mart’s conduct in the course of the case did not have any impact on the final ruling.