Walmart Opposition to Spoilation Sanctions

7/25/2019 Walmart Opposition to Spoilation Sanctions

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BRENDA H. ENTZMINGERNevada Bar No. 9800PHILLIPS, SPALLAS & ANGSTADT LLC504 South Ninth StreetLas Vegas, Nevada 89101(702) 938-1510

Attorneys for DefendantWal-Mart Stores, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Ruth Ann Stedeford, individually,

Plaintiff,

v.

Wal-Mart Stores, Inc., and DOES 1 through100; and ROE CORPORATIONS 101 through200,

Defendants.

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

DEFENDANT WAL-MART STORES,

INC.S RESPONSE IN OPPOSITION TO

PLAINTIFFS MOTION TO STRIKE

DEFENDANTS ANSWER OR

ALTERNATIVE SANCTIONS

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

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

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

to the Subject Action.

I. PLAINTIFF HAS FAILED TO PROVIDE ANY EVIDENCE THAT WALMART

DESTROYED ANY VIDEO EVIDENCE

A. Factual Background

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

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

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

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


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

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

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

imposed which would unfairly tilt the balance in her favor, because theexisting evidence shows that she

suffered no injury at all that day.

B. Walmart Checked for Relevant Footage and Preserved that Footage

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

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

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).

C. Plaintiff Has Failed to Take a Single Deposition or Conduct Any of the NecessaryDiscovery to Bring a Spoliation Motion

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

ever any additionalfootage of the incident area that should have been preservedwould have been to

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

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

search and its results.

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

conduct a single deposition in this matterduring more than ten months of discovery1. (Dec. Entz., 5)

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



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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

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

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

existed.

D. Plaintiff Offers No Evidence that Any Video FootageExistedand Was Destroyed

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

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

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

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

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

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

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

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

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

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

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

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

(See Section V, infra).

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

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



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evidenceof 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

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

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 thefactsregarding 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

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.

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

spoliation sanction against Walmart.

II. PLAINTIFF HAS FAILED TO MEET HER THRESHOLD BURDEN OF PROOF

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

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

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

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

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

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

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

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

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

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

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



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been destroyed.

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-

77.

In denying the plaintiffs motion for sanctions, theEpsteinCourt found that the plaintiff

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

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

erroneously

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

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

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

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

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

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

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

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

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

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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 SeePlaintiffs Motion, 6:1-9. Plaintiff claims tha

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:

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

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

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

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

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

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

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

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

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

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

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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

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

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).

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.

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

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

F.3d at 1329).

B.

Four-Part Test for Determination of Whether Spoliation Sanctions Are Proper:(1) Evidence Existedand a Duty to Preserve Said Evidence;(2) Evidence Spoliated With Culpable State of Mind;(3) Evidence WasKnown 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

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

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

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

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

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

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

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



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

2006) (quotingZubulake 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

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

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

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).

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

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

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

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

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

camera was positioned to record footage of the subject incident at the time of the incident. In sum

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

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

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

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

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

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



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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

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

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. SeeIn 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 Nat

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

reasonably should know is relevant to the action); see also1 Weinstein & Berger, Weinstein's Federa

Evidence 301.06[4] at 301-28.3 (2d ed. 2003) ("[T]here must be a sufficient foundational showing

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

potential relevance.).

(2)

Walmarts Own Protocols Do Not and Cannot Create a Legal Duty toPreserve Evidence

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

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

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

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

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

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

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

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

evidence preservation standards.



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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-

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

that preservation duty includes only evidence that may be relevantto reasonably foreseeable litigation

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

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

(3)Contrary To Plaintiffs Unsupported Theory, This District Rejects the Notionthat a Stores Own Preservation Directives Equate to a Legal Duty to

Preserve

InEnglish v. Wal-Mart Stores, Inc., Judge Reed denied the plaintiffs motion to strike Walmarts

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

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

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

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

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

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

The Court in Englishapplied Ninth Circuit authority and other authority from district courts

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

Walmarts own preservation procedures following a customer accident. Id. The English Court

concluded that there was no spoliation of evidence by Defendant 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. Id.at *4. Critica

to theEnglish Courts analysis was what was relevant and in the partys control at the time the duty to



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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.

Likewise, inDemena v. Smiths Food & Drug Centers, Inc., 2012 U.S. Dist. LEXIS 129024 at

*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. InDemena, 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 inDemena

alleged to have slipped and fallen on a jalapeno pepper on the floor of the stores produce department.

Id. The store manager inDemenareviewed the video surveillance of the incident, but determined that

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.

The Court inDemenaconcluded that the video which was destroyed would not tend to support

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

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

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

(4)Other Federal Courts Throughout the Nation Reject the Notion thatWalmarts Own Customer Accident Procedures and Preservation DirectivesCreatea Legal Dutyto Preserve

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

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

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

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

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



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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

were improper. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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



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InBurton, 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

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

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 knewthe bottle to be the source of the spill, rather Ms. Jackson and Ms. Mathenypresumed

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

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 inBurton, which was

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).

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

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

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

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

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

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

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

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

The store supervisor inJohnsonhad 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

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



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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,

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

However, theJohnsonCourt 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 inJohnsonconcluded that

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

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

investigation and collected evidence, including an incident report, written statements, photographs and

coordinated the preservation of surveillance footage. (Dec. Jackson). However, merely because Walmart

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

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

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

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

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

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

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

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

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



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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

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

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 timethat 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

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

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

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

2012). The plaintiff inDemenasought a rebuttable presumption or alternatively, an adverse inference

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

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

manager inDemenaviewed video footage depicting the incident area and unilaterally concluded that

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

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

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

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

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



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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.

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

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.

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

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

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

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

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

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

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

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.

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

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

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

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

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



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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

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

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

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 tha

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

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

at *4-5.

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

the incident itself ever existed and Plaintiff never even bothered to conduct the most rudimentary

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

As noted above inBurton v. Walgreens, Judge Mahan concluded that Walgreens didhave a

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

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

However, Judge Mahan declined to imposeanyspoliation sanctions, not even an adverse inference



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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.

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

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

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

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.

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

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

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

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

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

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

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

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

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

Id.

InEagleson v. Kent State University, 2003 WL 21061358 (Ohio Ct. Cl. 2003), the court denied



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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

the lawsuit, the defendant could not locate the chair. Eagleson, 2003 WL 21061358 at *1-3. The Cour

inEaglesonheld 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

preserved for such injuries on their premises. Id.

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

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

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

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

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

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

however.

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

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

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

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

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 saveas a means of rewriting

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



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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

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

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.

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

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

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

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

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

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

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

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

V. PLAINTIFFS COUNSELS LIBELOUS CLAIMS AGAINST WALMARTS COUNSEL

AND HIS DELIBERATE MISSTATEMENTS OF FACT TO THIS COURT WARRANT

SERIOUS SANCTIONS BY THIS COURT

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

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

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

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



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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.

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

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

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

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

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

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

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

he has lied to this Court.

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

in theReichardt v. Blue Martinimatter for ANY discovery misconduct.2 (Dec. Entz., 9, 10, Exhs. C

2 Neither the Discovery Commissioner nor District Court Judge Delaney (who adopted theCommissioners recommended sanctions) ever once suggested, stated or concluded that the undersignedor her law firm bore any responsibility whatsoever for her clients pre-litigation conduct in failing topreserve the video, any responsibility for her clients testimony about the video while a predecessor lawfirm represented the client, or any responsibility for her clients misleading discovery responses anddisclosures which were served while a predecessor law firm represented the client. (Dec. Entz., 910, Exhs. C, D, and E, DCRR, Plaintiff Reichardts May 7, 2012 filed Motion, and the April 30, 2012filed 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 apart of the spoliation motion filed by Plaintiff only seven days after the undersigneds appearance in thecase, the Commissioner ordered that Blue Martinisprior counsel, Adam Breeden, take the stand at theEvidentiary Hearing on the motion. (Dec. Entz., 9, 10, Exhs. C, D, and E).



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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

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

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

as counsel for Blue Martini on April 30, 2012, aftertwo other law firms were previously discharged

Id.Not only was this seven daysbeforePlaintiff Reichardt filed her Motion for Spoliation, it was also

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

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

the undersigneds involvement in the case3. (Dec. Entz., 9, 10, Exhs. C, D, and E).

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



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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 evidencein this jurisdiction while represented by Phillips Spallas. (Patton OrderGranting Motion for Sanctions for Walmarts Spoliation of Evidence [],Mack Order Granting Motion for Sanctions for Walmarts Spoliation ofEvidence [], Discovery Commissioner Report and RecommendationGranting Sanctions for Walmarts Spoliation of Evidence []).

(Plaintiffs Motion, 13:16-22).

It is incredible how many misstatements of factand law Plaintiffs counsel presents in these

lines alone.

1. First, theReichardt v. Blue Martinicase did not involve Walmart in any way whatsoever,

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.

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

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

represented by Phillips Spallas. This is false.

a. In Patton, Judge Ferenbach imposed an adverse inference jury instruction as aspoliation sanction for Walmarts pre-litigation failure to preserve surveillancefootage showing Associate Michael Burtons entry into the subject aisle, prior to theincident.

b. Judge Ferenbach concluded that the evidence was destroyed within 45 days of theincident date, in July 2011, because Walmart had not actively copied (or preserved)that surveillance footage before it was overwritten.

c.

Because the undersigned and her law firm did not represent Walmart in the Pattoncase until November 2012, and the underlying spoliation was found to have occurredin 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-litigationdiscovery issues preceded the undersigneds representation of Blue Martini. (Dec. Entz., 9-10, ExhsC-E).



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of Walmart having engaged in the destruction of evidence in this jurisdiction whilerepresented 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 theMack Order as an example of a time that Walmart has

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 aspoliation sanction for Walmarts pre-litigation failure to preserve surveillancefootage showing the plaintiffs incident in September 2005. The respondingmanager viewed the footage, but neglected to ensure it was preserved.

b.

Judge Sandoval found that the footage at issue was only available for approximately30 days after the incident. After that period, it was overwritten by Walmarts CCTVsystem. Any spoliation of evidence therefore occurred in September/October 2005.

c. Because the undersigned and her law firm did not represent Walmart in the Mackcase until August 2006, and the underlying spoliation was found to have occurred inSeptember/October 2005, it is a factual impossibility for this case to serve as anexample of Walmart having engaged in the destruction of evidence in thisjurisdiction 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 a Discovery Commissioner Report and

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

of Walmart engaging in the destruction of evidence while represented byPhillips Spallas.

This is false.

a. As with PattonandMack, theMoramatter involved allegations of spoliation arising

out of the storespre-litigationfailure to preserve evidence.

b. The underlying incident and alleged spoliation was in July 2002, but the undersignedand her law firm did not represent Walmart in that case until September 2003. It istherefore a factual impossibility for this case to serve as an example of Walmarthaving engaged in the destruction of evidence in this jurisdiction while representedby Phillips Spallas.

c. Here, Plaintiffs counsel not only misstates fact, he further misstates the lawbecause the Nevada Supreme Court overturned the district court and discovery



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commissioners imposition of sanctions in theMora v. Walmart case.

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

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

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

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

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

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

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

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

VI. CONCLUSION

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

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

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

bringing this Motion. Plaintiff therefore fails in meeting her initial burden of proof to establish tha

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

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

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

ability to go to trial.

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



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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

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

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 no

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.

Plaintiff has utterly failed to meet the elements required to warrant spoliation sanctions. Thi

case does not even merit the least of sanctions requested by Plaintiff.

DATED this 22nd day of January, 2016

PHILLIPS, SPALLAS & ANGSTADT LLC

/s/ Brenda Entzminger

______________________________________BRENDA H. ENTZMINGERNevada Bar No. 9800PHILLIPS, SPALLAS & ANGSTADT LLC504 South Ninth StreetLas Vegas, Nevada 89101(702) 938-1510

Attorneys for Defendant

Wal-Mart Stores, Inc.


Documents

Walmart Opposition to Spoilation Sanctions