Justice reared its ugly head in Colorado this week when the Supreme Court reinstated a $10M verdict in favor of a truck driver who suffered severe injuries when she slipped on grease while making a delivery to a Walmart in Greeley.  Walmart's conduct in the case was depressing but not unexpected.  It denied the existence of the grease spill, implying that the plaintiff had made it up.  Walmart's lawyer even told the jury in opening statement that there was no grease spill.  Unfortunately for Walmart, while its lawyer was denying the existence of the grease, someone was emailing to plaintiff's counsel a city of Greeley investigative report of the grease spill and its subsequent cleanup.  Next day, plaintiff's attorney called a Walmart representative to the witness stand and questioned her in a way that caused Walmart's crack legal team to suspect that he had a document that might establish the existence of the grease.  Once Walmart's lawyers saw the report, they changed their position regarding the grease, admitted it was there, but continued to deny responsibility.  Big mistake.  The jury's verdict of $10M was one of the biggest, if not the biggest, slip and fall verdict in Colorado history.

Well, Walmart didn't like the verdict and asked the judge to overturn it, claiming that plaintiff's counsel should have given Walmart's lawyers the investigative report immediately instead of waiting until after the Walmart representative had taken the stand and denied the existence of the grease spill.  Somewhat surprisingly, the trial judge agreed and ordered a new trial.  Plaintiff's attorneys took a Rule 21 petition to the Supreme Court, which is a way to get the Supreme Court to review a trial judge's ruling right away instead of going through the usual appeal process.  The Supreme Court reinstated the jury's verdict, holding that because the investigative report was a public document equally available to both sides, plaintiff's counsel did not have a duty to disclose the document to Walmart's lawyers. 

This case may have far reaching effects.  Colorado has broad discovery provisions requiring each side to turn over all relevant documents in their possession.  The Supreme Court has carved out a major exception to the disclosure requirements for documents that are in the public domain and equally accessible to both sides.  Walmart is probably working on a strategy of calling all of its documents public.