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Discovery is not required for public documents that are equally available to all parties.
Petitioner, Holly Averyt, a commercial truck driver, slipped in grease while making a delivery to Wal-Mart Store in Greeley. The grease had accumulated in the grocery receiving area. As a result of her fall, petitioner was injured. Petitioner brought suit against Wal-Mart, alleging claims of negligence and premises liability. During discovery, petitioner’s attorney unsuccessfully sought to obtain records from Wal-Mart documenting the grease spill. Despite Wal-Mart’s persistent denial of the grease spill, petitioner’s attorney continued to seek evidence to verify its existence. Petitioner’s attorney was able to obtain an information relating to an investigation and cleanup at a Greeley Wal-Mart (the Greeley report). After Wal-Mart’s witness testified that there had been no grease spill, petitioner’s attorney impeached the witness’ testimony with factual questions based on the Greeley report. The jury found in favor of the petitioner and awarded her $15 million in damages. After the verdict, Wal-Mart moved for a new trial based on surprise, non-disclosure, and unfair prejudice. The trial court granted Wal-Mart's motion, holding that petitioner should have disclosed the Greeley report before using it to question Wal-Mart's representative on the second day of trial. Petitioner appealed.
Under the circumstances, should the petitioner have disclosed the Greeley report before using it to question Wal-Mart's representative on the second day of trial?
The court held that the petitioner’s attorney did not violate discovery rules when he failed to disclose a document from the city documenting a grease spill and cleanup at the store. The Supreme Court of Colorado held that a party was not required to automatically disclose, pursuant to Colo. R. Civ. P. 26(a)(1), public documents that were equally available to all parties. Therefore, the trial court erred by granting defendant's motion for a new trial based on the untimely disclosure and a finding that the jury's award of damages was not supported by the evidence. Moreover, the Supreme Court of Colorado held that the jury's verdict awarding plaintiff $15 million in damages was supported by the evidence. Multiple witnesses testified as to plaintiff's medical costs, physical and mental pain and suffering, and impairment of the quality of life. The jury award was not the result of prejudice.