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When someone gets hurt on property owned by a big company, lawyers for the person who got hurt want to know if similar incidents have happened before at the same and other locations.  Sometimes the same type of incident keeps popping up – and if it does that pattern can tend to show that the big company should have been doing something different to protect their customers.  When someone got hurt at a local Dollar General, the injured person’s lawyer tried to get reports of similar incidents at other Dollar General stores across the country.  After a big dust up over discovery, which included a hearing, the trial court issued an order directing the Dollar General to review and turn over incident reports of similar incidents from its stores across the country.  Dollar General resisted the order and appealed up to the Alabama Supreme Court, which limited the discovery to such reports from its Alabama stores.

In any discovery dispute a court has to balance the asking party’s need for the information, and the disclosing party’s burden of producing the information.  In this case, the Alabama Supreme Court took to heart the Dollar General’s protestation of how much time, effort, and expense it would take to find the information requested by the injured person.  With over 13,000 nationwide stores, Dollar General had estimated that it would take over 9,000 hours to review its records and find incident reports with fact patterns similar to the case involving this particular injured person.  The estimated cost to Dollar General for performing such a search was estimated (by Dollar General) to be close to $300,000.  If Dollar General’s allegations are to be taken at face value, then it is no surprise that the Alabama Supreme Court concluded that the trial court’s order was “overly broad and unduly burdensome.”  The trial court’s discovery order was vacated.

In the place of the trial court’s order the Alabama Supreme Court chose to craft it’s own discovery order.  Their version cut down on the geographic scope of Dollar General’s obligation to find similar incident reports, but otherwise left it intact.  Rather than require a search and disclosure of any such incident (in the past 5 years) that happened at any location across the United States, the modified language only required them to research and disclose such events that happened in Alabama.

The concurring opinion of Justice Shaw sheds the most light on how these discovery disputes may be handled in the future.  Shaw seemed to doubt that the burden on Dollar General was a great as they said it was, refusing to take the allegations at face value.  This appears to have been in part based on the lack of credibility of one Dollar General witness, but it also seem to belie a disbelief that searching records in a digital age needs to be so burdensome.  Indeed, in the federal courts and some other states this dispute might have been resolved in the context of an electronic discovery order.  It is now typical for the parties in cases involving large amounts of information to identify keywords for a database search which is then conducted by the disclosing party, and the search results disclosed after being reviewed for privilege. If nationwide incident reports are desired, the plaintiff’s attorney is likely going to have to craft a tailored electronic discovery plan to get it.

Read the Alabama Supreme Court’s opinion about discovery here and contact Browne House Law about premises liability, trials, and appeals.