After a civil lawsuit is filed, a process goes on called “discovery.” In this process, each side gets to investigate and gather information, including from the other side. This includes asking questions to be answered under oath, asking for admissions, seeking copies of documents and generally attempting to discover the other’s involvement.
For example, a plaintiff might ask specifically about emails on the subject of the lawsuit sent by corporate officers of a defendant company. If the defendant has such emails, it must generally hand them over to the plaintiff. If it refuses or tries to hide the evidence, it can be sanctioned. This is all part of a system of litigation in which there are supposed to be no surprises.
The reason we’re discussing the discovery process is that Walmart may have refused to hand over evidence in the multi-district opioid litigation against it and other opioid manufacturers, distributors and pharmacy chains. Many states, counties and municipalities have sued Walmart over its opioid prescription practices, and those cases have been consolidated into one giant case.
An apparent pattern of non-responsiveness
One thing Walmart failed to notify the plaintiffs about was that it had been under criminal investigation for the same conduct. Prosecutors in Texas actually attempted to charge Walmart over lax prescription practices, but the federal Justice Department overruled them repeatedly.
The plaintiffs in the multi-district opioid litigation have accused Walmart of “pervasive obstruction” of the discovery process. Citing an investigation by the nonprofit newsroom ProPublica, an attorney for the plaintiffs says that Walmart produced only 18,466 documents over two years. At the same time, Walmart produced around a million documents and six million prescriptions in a federal investigation.
The same attorney also said that Walmart failed to turn over evidence about its opioid compliance manager, who has been targeted by the criminal investigation, even though the plaintiffs specifically requested that information. Recently, the special master in charge of the discovery process ordered Walmart to produce those documents.
This does not appear to be the first time Walmart has withheld evidence improperly. A federal judge in Puerto Rico sanctioned the company in 2018 for intentionally destroying evidence. In that sanctioning opinion, the judge cited 18 other cases in which Walmart had hidden evidence.
A Texas judge concluded that Walmart “has chosen extreme discovery abuse as a litigation strategy” even though it had repeatedly been sanctioned. In the 1990s, Walmart was fined at least seven times for similar violations.
Walmart defends itself by claiming that the number of cases where it has been sanctioned are minuscule compared to the overall number of lawsuits in which it is involved.