Baker et al v. Kroger Limited Partnership I et al
ORDER denying 114 Motion for a pretrial ruling on certain items. Signed by District Judge Michael P. Mills on 3/27/2017. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
LORI BAKER and THOMAS BAKER
Civil Action No.: 3:15-cv-00161-MPM-RP
KROGER LIMITED PARTNERSHIP, d/b/a
KROGER #473 and THE KROGER COMPANY
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
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
In so stating, this court notes that issues such as this one have traditionally been reserved
For example, plaintiffs argue that certain comments made by their friends on the
Facebook page are hearsay. It strikes this court that the issue of whether such comments are
hearsay or not would depend upon their nature. For example, a comment from a friend which
merely states “Merry Christmas!” would clearly not be hearsay, since it would not be introduced
to prove the truth of the matter asserted. Such evidence would, instead, presumably be used to
establish the time period in which the comment was made. This illustrates why this court is not
in a position to rule upon these issues without having viewed the evidence in question.
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
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 outof-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 identical to those raised by defendants in this case.
Specifically, Judge Percy wrote in his order that:
The issue of whether investigative surveillance video of a personal injury plaintiff
constitutes substantive evidence that is subject to pretrial disclosure was squarely
addressed by the Fifth Circuit in Chiasson v. Zapata Gulf Marine Corp., 988 F.2d
513 (5th Cir. 1993). Because the Chiasson plaintiff claimed physical and mental
pain and anguish and sought damages for loss of enjoyment from the activities of
her normal life, the Fifth Circuit found that the severity of her pain and the extent
to which she had lost the enjoyment of normal activity were key issues to be
decided by the jury and that evidence, such as the surveillance video, which
would tend to prove or disprove such losses must be considered “substantive.”
988 F.2d at 517. The court ruled that because the video was “at the very least in
part substantive, it should have been disclosed prior to trial, regardless of its
impeachment value.” Id. at 517-18.
[Judge Percy March 15, 2017 order at 3-4]
Judge Percy noted that the facts in Chiasson were quite similar to those here, and he
appeared to specifically assume that the video in this case would cast doubt upon the extent of
In the instant case, Plaintiff has claimed damages similar to those claimed in
Chiasson, and the subject surveillance video, which Defendants state show
Plaintiff easily bending, picking up items, standing for long periods of time and
making other bodily movements, would tend to prove or disprove the extent of
Plaintiff’s claimed damages. Because the video is at the very least in part
substantive, it should have been disclosed prior to trial regardless of its
[Id. at 4].
In rejecting defendants’ argument that Chiasson is distinguishable, Judge Percy wrote
Defendants, who dispute Plaintiff’s contention that her discovery requests sought
information about any surveillance video, argue Chiasson is distinguishable
because in that case the plaintiff had propounded a discovery request asking
whether the defendant had any such footage of the plaintiff, to which the
defendant answered that it did not. This Court need not decide whether Plaintiff
requested information about any such surveillance video, because our discovery
rules now require parties to disclose any such substantive evidence it may use at
trial “without awaiting a discovery request.” Fed.R.Civ.P. 26(a)(1). This
“automatic” disclosure provision was added to the rules in 1993, the year
Chiasson was decided. The Fifth Circuit has since affirmed that surveillance
recordings which may have some impeachment value because they are
inconsistent with the plaintiff’s testimony, but which are also at least in part
substantive because they tend to establish the truth of a key issue, must be
disclosed by a party under Rule 26(a)(1) without awaiting a discovery request.
Olivarez v. GEO Group, Incorporated, 844 F.3d 200, 205 (5th Cir. 2016).
[Id. at 4-5].
This court finds Judge Percy’s ruling to be quite persuasive, and, in appealing it,
defendants fail to point out any errors in his reasoning. In their brief, defendants write that:
Magistrate Judge Percy found that the surveillance video constitutes substantive
evidence that should have been disclosed in discovery. However, Kroger submits
that the surveillance video is to be used for impeachment purposes only at the trial
of this matter. The Magistrate Judge’s reliance on the Chiasson case is somewhat
[Defendants’ brief at 2]. While defendants thus argue that Judge Percy’s reliance upon Chiasson
is “somewhat misplaced,” they provide no particulars on exactly how this might be the case.
Instead, defendants argue that this court should view the videotape itself to decide whether it is
“substantive evidence” or not. Specifically, defendants write that:
Kroger respectfully requests that the District Judge review the surveillance video
in camera to see if, in fact, the surveillance video contains such “substantive
evidence.” After reviewing the video and paying attention to the claims of the
Plaintiffs at trial, the Court can then make a reasoned determination whether the
video is “black and white” strict impeachment of the Plaintiffs or not.
This court will grant defendants’ request to view the videotape in chambers, since it does
not want them to feel that their evidence is being overlooked. At the same time, it is not at all
clear to this court exactly how viewing the videotape might alter the analysis regarding whether
it is “substantive” or not. For the purposes of this motion, this court will assume that the video
casts serious doubt upon the extent of Lori’s injuries, and, as quoted above, Judge Percy
appeared to assume this as well. The fact remains, however, that defendants’ briefing fails to
point out any specific errors in Judge Percy’s reasoning, nor does it even mention the stringent
burden which they face in appealing his order. Indeed, the Local Rules provide that:
No ruling of a magistrate judge in any matter which he or she is empowered to
hear and determine will be reversed, vacated, or modified on appeal unless the
district judge determines that the magistrate judge's findings of fact are clearly
erroneous, or that the magistrate judge's ruling is clearly erroneous or contrary to
L.U.Civ.R. 72(a)(1)(B). Defendants’ briefing fails to make any arguments which might lead this
court to conclude that the “magistrate judge's ruling is clearly erroneous or contrary to law,” and
their appeal of that ruling will almost certainly be denied. However, this court will reserve a
final ruling on this issue until after viewing the videotape, which may be done in chambers on
the day of the scheduled trial in this matter.3
In light of the foregoing, it is ordered that defendants’ motion [114-1] for a pretrial ruling
These in-chambers proceedings will be for the sole purpose of viewing the videotape and
not to allow the parties to provide new arguments or authorities beyond those submitted in their
on certain photographs and other Facebook page excerpts is denied.
SO ORDERED, this the 27th day of March, 2017.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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