London Luxury LLC v. Walmart Inc.

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
LONDON LUXURY, LLC 	PLAINTIFF/COUNTER-DEFENDANT
V. 	CASE NO. 5:22-CV-5059
WALMART, INC. 	DEFENDANT/COUNTER-PLAINTIFF
ORDER
Before the Court is a discovery dispute that London Luxury brought to the Court’s
attention. The dispute, including each side’s position, is set out in Exhibit 1 to this Order.
See also Doc. 362-5. 	According to London Luxury’s email to the Court dated September
14, 2023, the dispute arose because “Walmart inserted an incendiary bribery theory into
this case yet is now refusing to produce its own key documents that will show its theory
is baseless and litigation driven.” 	London Luxury sought three categories of documents:
• 	First, documents that would show efforts by Walmart to report the supposed
bribery or to enforce Walmart’s rights leading up to Walmart’s [May 2023
Counterclaim]. This evidence of Walmart’s diligence, or lack thereof, in
acting on the supposed bribery is directly relevant to the timeliness of
Walmart’s recission claim.
• 	Second, documentation of other instances of suspected bribery of Walmart
employees, from the custodians with responsibility for addressing such
suspected bribery, to show that the alleged misconduct does not constitute
bribery and is not a material violation of Walmart’s own anti-bribery
provisions.
• 	Third, Walmart’s compliance policies, procedures, controls, and practices
that Walmart’s compliance personnel utilize when determining whether a
material violation of Walmart’s ethics policies has occurred. 	Walmart’s
compliance 	documents 	will 	illuminate 	what 	Walmart 	has 	historically
considered to be a material violation of its boilerplate contracts and other
policies.
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Walmart’s position, distilled to its essence, was that it had produced all non-
privileged documents pertaining to its knowledge of the alleged bribery of Mr. Small, and
that the nature and scope of the remaining requests were either not relevant or overly
broad.
A lot of water has flowed under the bridge since September when this dispute was
first raised. 	For example, the Court has issued a Summary Judgment Opinion that
narrowed the issues remaining for trial. See Doc. 399. The Summary Judgment Opinion
is incorporated here by reference because it lays out certain undisputed facts related to
the timeline of the February 2021 Commitment Letter and Mr. Small’s interactions with
Mr. Jason on that timeline (e.g. Doc. 399, pp.16-21).
Among other rulings, the Court refused to dismiss Walmart’s rescission claim on
Summary Judgment. Doc. 399, pp. 49-52. 	There the Court laid out the timeline of Mr.
Small’s efforts to fabricate the June commitment letter and when Walmart learned about
it. 	The 	Court 	concluded 	that 	“no 	reasonable 	jury 	could 	find 	that 	the 	rescission
counterclaim was untimely asserted.” Id. at p. 52.
Finally, the Court has also issued five rulings on a related dispute where London
Luxury challenged certain documents on Walmart’s privilege log. 	Among other things,
London Luxury objected to the withholding of employee communications with in-house
counsel and to the withholding of Walmart’s internal investigative communications and
related documents. The Court resolved those objections––sustaining most of Walmart’s
assertions of privilege over the investigative documents, but overruling Walmart’s
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assertion of privilege over communications between business employees and in-house
counsel when discussing the transactional aspects of the nitrile gloves deal. Those
Orders had the effect of requiring Walmart to produce numerous communications
between Mr. Small and in-house attorney Vicki Vasser (and Nicole Chapman), that had
previously been redacted or withheld. 	See Docs. 398, 405, 408, 413, and 414.
More recently, to get to the nub of what might remain outstanding, the Court
required Walmart to represent whether it had produced all non-privileged documents1 in
its possession or control that would evidence any improper business relationship between
Garrett Small, Marc Jason, and London Luxury. 	Walmart’s response is attached here as
Exhibit 2. 	Although verbose and filled with lawyerly qualifications, the Court understood
Walmart’s answer as a representation that all such documents have now been provided
to London Luxury. 	London Luxury disagrees and contends that hundreds of Garrett
Small and/or Vicki Vasser documents have still not been produced. See attached Exhibit
3.
The Court’s review of documents was limited to those submitted for in camera
review at the time, but its orders were not limited to privilege log entries. The Court had
no way of knowing anything about documents not submitted for its privilege review.2 That
1. The Court did not require Walmart to address any documents where the Court had
already sustained Walmart’s assertion of privilege.
2. Although, when ruling on the internal investigation issue, the Court did put Walmart on
notice of “[t]he Court’s understanding [ ] that Walmart is not asserting work-product
privilege over the ESI that Global Investigations identified during its investigation. And
since those documents were not attached to the in camera production, the Court does
not address in this Order whether they might be protected by the attorney-client privilege.”
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was the whole point of yesterday’s questions to Walmart: to confirm that all Small
documents presently known to exist have been produced to London Luxury. 	Walmart’s
response, in turn, would inform the Court’s ruling on liminal issue 361.10. To London
Luxury’s point, the Court’s inquiry was clearly not limited to the documents previously
submitted for in camera review.
To be crystal clear, the Court interprets Walmart’s responses to be that Walmart
has produced all Small documents related the glove transactions generally––and the
bribery issue more specifically—which are presently known to exist based on the ESI
searches that the parties previously agreed upon. The only exception being documents
the 	Court 	expressly 	identified 	and 	sustained 	as 	being 	privileged. 	If 	the 	Court’s
interpretation is wrong—as London Luxury seems to believe––Walmart’s counsel had
best explain that to the Court immediately (in plain words this time), or risk being
personally sanctioned along with their client.
The same premise applies to Vasser (and Chapman) documents. The first
privilege log order (Doc. 398) required Walmart to “immediately produce all Vasser
documents that are still being withheld . . .” Doc. 398, p. 5. 	This would have included all
communications between Small and Vasser (except for those deemed by the Court as
being attendant to Walmart’s internal investigation that began in October 2021). 	If
Walmart knows of any such Vasser (and/or Chapman) documents to exist that have not
yet been produced, it had best explain that immediately too.
Doc. 405, p. 5, n. 2.
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For now anyway, the Court believes its understanding of Walmart’s response is
correct, and it has no good reason to believe that Walmart or its attorneys are misleading
the Court. 	The Court therefore finds that no non-privileged documents remain to be
produced in response to the first category of disputed documents noted above.
In the second and third categories, London Luxury sought productions of all
Walmart 	anti-bribery 	policies 	and 	procedures 	that 	would 	allow 	London 	Luxury 	to
contextualize and distinguish between non-material acceptable bribes vis-a-vis a more
serious variety. 	London Luxury then wanted those in charge of such matters to produce
all documents in their possession to show how and where the line is drawn by Walmart
as a practical matter. 	The Court sustains Walmart’s objections to the production of such
documents.
Discovery requests must be relevant to a claim or defense and proportional to
the needs of the case. Fed. R. Civ. Proc. 26. 	Walmart raised the bribery issue as an
aspect of both its claims and defenses, and the Court has thusly required that all
documents pertaining to an improper business relationship between Small, Jason, and
London Luxury be produced. And to the extent the parties’ agreement incorporates an
anti-bribery policy, Walmart must produce the policy (and presumably it already has).
That said, Walmart’s history of investigating other bribery or gratuity claims––and
its findings and any disciplinary actions that may or may not have been meted out in other
instances––are not relevant to any claim or defense in this case. 	Those matters might
be relevant if, for example, Garrett Small were suing Walmart for wrongful termination,
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but that is not the case here. The requests in categories two and three are also overly
vague and overly broad in substantive and temporal scope. 	To the extent the responding
party knew where to begin the search, they surely wouldn’t know where to end it. 	More
to the point, when weighing Rule 26’s proportionality factors, the Court finds they weigh
heavily against the requirement that Walmart be required to produce them. 	Walmart’s
objections to the requests summarized in categories two and three above are sustained.
IT IS SO ORDERED on this 22 nd day of March, 2024.
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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