Faul v. Wal-Mart Stores , Inc

Filing 4

ORDER granting in part and denying in part [] Motion for Temporary Restraining Order; granting in part and denying in part [] Motion for Preliminary Injunction only to the extent that the motion is treated as a motion to preserve evidence and defendant shall preserve the evidence as indicated herein. It is further ORDERED that plaintiff shall SERVE defendant and/or defendant's counsel with a copy of this Order. Signed by Magistrate Judge Docia L Dalby on June 20, 2012. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHAWN FAUL

CIVIL ACTION

VERSUS

NUMBER 12-358-JJB-DLD

WAL-MART STORES, INC.
ORDER
This premises liability matter is before the court as the result of plaintiff’s having
included within his complaint a request for a temporary restraining order and motion for
preliminary injunction.1 Since plaintiff’s requests seek only to preserve evidence relevant
to this matter that may be obtained during the discovery process and used at trial, they will
be treated as a motion for preservation of evidence.
A party has a duty to preserve evidence “when the party has notice that the
evidence is relevant to litigation or when a party should have known that the evidence may
be relevant to future litigation.” Zubulake v. UBS Warburg, LLC 220 F.R.D. 212, 216
(S.D.N.Y. 2003). Plaintiff filed her complaint against Wal-Mart as a result of injuries she
allegedly received from a falling case of paper towels; therefore, Wal-Mart has been put on
notice of plaintiff’s claims and has an obligation to preserve all evidence relevant to this

1

Plaintiff’s motions actually seek an order enjoining defendant and its agents “during the pendency
of this action and perpetually thereafter” from destroying certain evidence. The court cannot enjoin a party
in perpetuity from destroying evidence. If and when plaintiff obtains a copy of any photographs or video
surveillance that defendant may have in its possession, plaintiff may take whatever steps necessary to
preserve that evidence for her future use.

matter.2 Plaintiff’s request to have defendant preserve evidence clearly does not impose
any additional burden on defendant. Accordingly,
IT IS ORDERED that plaintiff’s motion to preserve evidence, styled within the
complaint as a request for temporary restraining order and motion for preliminary injunction
(rec. doc. 1), is GRANTED IN PART AND DENIED IN PART as follows:
IT IS ORDERED that defendant Wal-Mart Stores, Inc., shall preserve (1) all video
surveillance of Wal-Mart Store #935 taken from 6:00 a.m. until 6:00 p.m. on May 3, 2012;
and (2) all photographs of Wal-Mart Store #935 taken from 6:00 a.m. until 6:00 p.m. on May
3, 2012, as well as any witness names or other data, witness statements, incident reports,
handwritten notes or any other documentation arising out of or related in any way to the
incident giving rise to this lawsuit during the pendency of this litigation.
IT IS FURTHER ORDERED that in light of the fact that defendant has not been
served with a copy of the complaint in this matter, plaintiff shall serve defendant and/or
defendant’s attorney, if known, with a copy of this order immediately upon receipt of this
order.
Signed in Baton Rouge, Louisiana, on June 20, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY

2

Plaintiff seeks to enjoin defendant and its employees, agents, attorneys, and those acting in concert
with them from erasing, deleting, destroying, or otherwise disposing of the following during the pendency of
this action: “(1) any video surveillance of the Store taken from 6:00 a.m. until 6:00 p.m. on May 3, 2012; and
(2) any photographs of the Store taken from 6:00 a.m. until 6:00 p.m. on May 3, 2012, as well as any
photographs, witness names or other data, witness statements, incident reports, handwritten notes or any
other documentation arising out of or related in any way to the incident giving rise to this lawsuit.” (Rec. Doc.
1).

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