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Baker v. Kroger Limited Partnership

United States District Court, N.D. Mississippi, Oxford Division

March 27, 2017

LORI BAKER and THOMAS BAKER PLAINTIFFS
v.
KROGER LIMITED PARTNERSHIP, d/b/a KROGER #473 and THE KROGER COMPANY DEFENDANTS

          ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This cause comes before the court on the motion of defendants, requesting that it review certain evidence in this case prior to trial. Having considered the memoranda and submissions of the parties, this court is prepared to rule.

         This is a slip-and-fall case in which plaintiff Lori Baker seeks to recover for damages which she allegedly suffered at the Kroger grocery store in Oxford on September 7, 2012. Lori's husband Thomas asserts a loss of consortium claim arising out of her alleged injuries. In defending themselves against these claims, defendants have filed a motion, ostensibly in the interests of judicial efficiency, for this court to make a pretrial ruling on numerous photographs which they obtained by reviewing plaintiffs' Facebook page. Presumably, defendants will seek to introduce the photographs to cast doubt upon the severity of the injuries which Lori allegedly sustained in her accident. These photographs strike this court as being potentially relevant evidence in this regard, and plaintiffs do not appear to argue otherwise.

         This court finds defendants' motion to be fundamentally defective, however, in that it seeks a pretrial ruling on a large number of photographs and yet it only includes two of those photographs for review. Obviously, this court is not in a position to make a pretrial ruling regarding the admissibility of photographs which were not provided to it, even if it were otherwise inclined to do so (which, frankly, it is not).[1] In response to an email query from this court's staff, counsel for defendants explained that the two attached photographs were intended to be “sample[s]” and that “[i]f the Court would like, an entire set of photographs and all matching testimony can be provided for review.” [March 23, 2017 email from defense counsel at 1].

         While this court appreciates defendants' offer to submit additional evidence in support of their motion, it will simply rule upon the motion which was submitted to it. Based upon that motion and attachments, and considering plaintiffs' response, this court concludes that the request for a pretrial ruling on these photographs is not well taken. In so stating, this court emphasizes that plaintiffs make it clear that they intend to make objections, based on grounds such as lack of authentication and hearsay, to many of these photographs and other Facebook page excerpts. It is, of course, their right to do so. Moreover, the briefing which is before the court simply does not contain the arguments and counter-arguments, as to each specific photograph, which would allow it to make an informed ruling on these matters.[2] This court therefore has little difficulty in concluding that defendants' motion for a pretrial ruling should be denied. Having said that, this court does note that plaintiffs may try the jury's (and this court's) patience if they seek to make the process of admitting this evidence unduly cumbersome. With this caveat, this court will not prevent plaintiffs from raising any good faith objections in this context.

         However, in the interests of expediting its consideration of these matters at trial, this court will provide its impression of one of the issues raised by the parties with regard to the photographs. In their response, plaintiffs object to dates and locations which were affixed to the photographs by counsel for defendants, which purport to state when and where they were taken. Plaintiffs argue that these amount to hearsay statements by defense counsel, and it appears to this court that they may be correct. That is, it appears to this court that the stamps may well be out-of-court assertions used to prove the truth of the matter asserted. Moreover, this court has serious doubts regarding whether any of the hearsay exceptions are applicable here. At the same time, this court regards the hearsay issue as being somewhat unclear, particularly since neither side submits authority dealing with this issue.

         What does seem clear to this court is that it is not necessary for defendants to tell the jurors exactly where and when the photographs were taken, since they can decide this matter for themselves. This court will assume that defendants' representation that the dates which their counsel attached to the photographs are (at least for the most part) reliable and that it would speed along the trial process to allow them to include these notations on the photographs. Nevertheless, the fact remains that plaintiffs have a right to raise any good faith objections in this regard, and it seems to this court that each and every one of the dates and locations noted by defense counsel should not necessarily be accepted as the gospel truth. This court therefore directs defendants to remove the date and times from the photographs, and it will allow the jury to decide when and where they were taken. Having clarified this issue, this court will otherwise reserve a ruling on the admissibility and relevance of each photograph and other Facebook excerpt until trial.

         Defendants also request that this court review, in considering their objections to a March 15, 2017 ruling of Magistrate Judge Percy, surveillance video which they took of Lori.

         As discussed below, this court will grant this request, but it wishes to make clear that it is strongly inclined to agree with the Magistrate Judge's order excluding this video, based on defendants' failure to disclose it in discovery. In their briefing, defendants concede that they failed to disclose this evidence, but they submit that it will be used for “impeachment only” and should be allowed for this purpose. Judge Percy based his ruling on Rule 26(a)(1)(A), which requires that a party must, without awaiting a discovery request, provide to the other parties:

(i) the name, and if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment…; (ii) a copy - or a description by category and location - of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.

Fed. R. Civ. P. 37(c) further provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

         In his ruling, Judge Percy noted that there are strong public policy considerations supporting this rule. Indeed, the Advisory Committee Note to Rule 37 emphasizes that this sanction provides “a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, ” by the deadline. The purpose of these disclosure requirements is to “eliminate unfair surprise to the opposing party.” Hill v. Koppers Indus., 2009 WL 3246630, at *2 (N.D. Miss. Sept. 30, 2009).

         Public policy considerations aside, Judge Percy noted that the Fifth Circuit has addressed, and rejected, arguments virtually ...


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