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Discovery of Other Similar Incidents - Proportionality-Mandamus

Ex parte Dolgencorp, LLC, [Ms. 1161003, Sept. 14, 2018] __ So. 3d __ (Ala. 2018). This plurality per curiam opinion (Stuart, C.J., and Bolin, Sellers, and Mendheim, JJ. concur) issues a writ of mandamus to the Tuscaloosa Circuit Court vacating a discovery order which required Defendant Dolgencorp to produce incident reports with associated photographs of similar incidents at Dolgencorp stores in the United States where cars crashed into the front of a Dollar General store due to lack of bollards for the five-year period leading up to the March 14, 2016 incident in which plaintiff was injured. Ms. *5.

Dolgencorp presented evidence that it allegedly would take thousands of hours to search for the requested incident reports at a total cost of approximately $270,000 to $300,000. Ms. *8. The opinion concludes that “the burden on Dollar General to comply with that order was out of proportion to any benefit [plaintiff] Gilliam would obtain from the requested information.” Ms. *9.

The Court granted the petition and directed the trial court to modify the order by limiting the scope of the request to similar incidents in the State of Alabama. Ms. *10. Justices Shaw and Wise concurred in the result with Justice Shaw writing a concurring opinion. Justices Parker, Main, and Bryan dissented with Justice Parker writing a dissenting opinion.

Justice Shaw’s special concurrence found Dollar General’s affidavit unpersuasive as to the burden of production but opined that the Court should “balance the burden created by producing the requested evidence against the ‘relevance’ of that evidence to the subject matter of the case.” Ms. *13-14. Justice Shaw concurred in the result because he concluded the relevance of the information was minimal. Ms. *14.

Justice Shaw noted that he was not persuaded that the burden of producing the documents was as profound as Dollar General argued. Ms. *15. He noted that the information concerning the number of incident reports and associated burden of searching through those reports largely came from assertions of counsel at argument and that such assertions are not evidence. Ms. *16. Justice Shaw also noted that Dolgencorp’s affiant, Helmbrecht, was a difficult deponent who did not appear to “possess a complete knowledge of the ability to search incident-report records.” Ms. *16.

In dissent, Justice Parker noted that Helmbrecht’s affidavit was “severely undermined” by her deposition and that he would hold Dolgencorp had failed to discharge its burden to show clear entitlement to a writ of mandamus. Ms. *20.

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