*1 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:

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 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.

*2 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 documents[1] 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 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.

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.

*3 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, 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 22nd day

From:Scott Richardson

To: Erika Esterbrook

Cc: Privanka Timblo; Gregory J. Dubinsky: Brendon DeMay; Armstrong. Lee.A; “Lynch. Thomas E. (Ted)”; Anthony. Rebecca W,,: Nugent. Katherine E.; Chasan. Beniamin: kzinsma stec ionesday. com; DanielM, Horowitz; Karen A. Sebaskii; Jonathan Schaffer;Goddard;.Benjamin B, Allen;.Victoria Roeck

Subject: London Luxury LLC v. Walmart Inc., # 5:22-cv-5059-TLB: Discovery Dispute

Date: Thursday, September 14, 2023 4:33:52 PM

Attachments: 1maae001.ong 2023.06.14 London Luxury' 4th Set ot RFPs to Walmart pdf 2023.07.14 Walmart"s R&Os to London Luxury's 4th Set of RFPs. pdf Exhibit A - G. Small Deposition Transcript Excerpts.pdf

CAUTION - EXTERNAL:

Dear Chambers of Judge Brooks:

London Luxury requests a discovery conference with the Court to resolve the dispute described below. The parties' dispute arose before the end of fact discovery on August 28, and the parties began preparing this description of the dispute prior to that date.

The Dispute

London Luxury challenges Walmart's responses and objections to certain document requests. London Luxury's document requests and Walmart's responses and objections are attached.

London Luxury's Position

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.

On May 31, 2023, the Court let Walmart add a counterclaim alleging London Luxury bribed a Walmart employee before the February Commitment Letter was signed. Walmart contends this alleged misconduct breaches a clause in Walmart's own boilerplate agreement with suppliers including London Luxury. London Luxury then served document requests seeking Walmart's evidence of its bribery theory. London Luxury seeks the Court's assistance in securing production of three sets of documents.

First, London Luxury seeks documents concerning any efforts by Walmart to report the supposed bribery or to enforce Walmart's rights leading up to Walmart's proposed addition of the counterclaim in May 2023. (RFPs 57-58, 71–72.) This evidence of Walmart's diligence, or lack thereof, in acting on the supposed bribery is directly relevant to the timeliness of Walmart's rescission claim. Walmart contends that such documents are privileged. But as already presented to Your Honor, Walmart effected an at-issue waiver by asserting that Walmart did not know about the alleged bribery before April 2023. Even if the timeliness of Walmart's rescission claim was not at issue, evidence of Walmart's efforts to report the alleged fraudulent procurement of a $500 million contract or otherwise enforce its rights (or the conspicuous absence of any such efforts) is relevant to whether Walmart itself believed in the ordinary course of business that the conduct was truly “bribery”. London Luxury proposed five specific custodians who would have direct responsibility for these matters, including personnel in Walmart's compliance department. Walmart's objection to incorporating these custodians is only that London Luxury “could have, but did not” previously seek to add them earlier in discovery. But London Luxury is seeking this discovery now because Walmart did not assert its claim seeking to rescind the central contract in this case until May 2023—three months after the parties had reached substantial agreement on custodians, six months after the deadline to amend had passed, and three months before the close of fact discovery. If Walmart is permitted to assert an eleventh-hour counterclaim, it is only fair that London Luxury be permitted discovery proportional to the scope of that belated counterclaim.

*4 Second, to show that the alleged misconduct does not constitute bribery and is not a material violation of Walmart's own anti-bribery provisions, London Luxury requests documents concerning other instances of suspected bribery of Walmart employees, from the custodians with responsibility for addressing such suspected bribery. (RFPs 59–60.) Walmart's counterclaim alleges that, at a lunch the day before Mr. Small signed the February Commitment Letter that Walmart's lawyers approved, London Luxury “promised Mr. Small a lucrative future executive position at London Luxury or an affiliate in order to entice Mr. Small to breach his responsibilities as a Walmart employee with regard to the nitrile gloves deal.” (SACC ¶ 115.) At his deposition, however, Mr. Small testified the opposite. His testimony made no mention of any “position” offered at that lunch, much less an “executive” position or a “lucrative” one. Rather, he testified that at the lunch he merely discussed how he and Mr. Jason vaguely “might work together” in a hypothetical, confidential venture in the future (Ex. A, 202:18-203:17). And in response to a direct question, he testified that nothing at the lunch enticed him to breach his responsibilities as a Walmart employee regarding Walmart's gloves transaction with London Luxury. (Ex. A, 317:25–318:18.) Only months after the February agreement did Mr. Small and Mr. Jason discuss the possibility of a senior leadership position and travel, and even then the discussions were not “connected” to Walmart's gloves transaction with London Luxury. (Ex. A, 315:20-317:1.) Every day, Walmart employees leave Walmart to take a job with one of the thousands of companies that supplies goods to Walmart. This open-door relationship benefits both the employee and Walmart, as Walmart has an interest in working with suppliers who are knowledgeable about Walmart's preferences and byzantine procedures. Walmart is free to argue to the jury that a vague discussion about maybe working together in a hypothetical confidential venture supplying goods to Walmart constitutes bribery under its boilerplate supplier agreement. However, if Walmart does not regularly treat such everyday conversations as bribery that leads Walmart to fire that supplier, then London Luxury should be able to argue to the jury that the conduct here does not constitute a violation of Walmart's ambiguous anti-bribery policies. Moreover, even if vague conversations about working together in the future on hypothetical confidential ventures would be a technical violation of these policies and provisions, it does not constitute a material one that gives rise to the extraordinary remedy of rescinding a $500 million contract. Accordingly, the requested evidence is relevant to both breach and materiality. Other courts have compelled such discovery, recognizing that how a party enforces a similar contract in other cases is probative of whether its enforcement of the contract at issue is reasonable. See, e.g., Nautilus Ins. Co. v. Argenia LLC, 2015 WL 12835623, at *2 (E.D. Ark. May 29, 2015) (insurance policies issued in other cases “bear[j upon the allegation that” the insurance company would not have approved the one at issue); Avantax Wealth Mgmt, Inc. v. Marriott Hotel Servs., Inc., 2022 WL 18638754, at *4 (M.D. Tenn. Sept. 28, 2022) (contracts with similarly situated third parties “relevant to the issue of whether [the plaintiff's] termination was justified”); Verbal v. Tiva Healthcare, Inc., 2021 WL 9527856, at *2 (S.D. Fla. Mar. 9, 2021) (“contracts contain[ing] provisions similar to those in the [plaintiffs'] contracts ... may have some bearing on Defendants' affirmative defenses.”). And prior instances of suspected bribery are relevant for another reason: this is not the first time that Walmart has attempted to avoid a dear contractual obligation by accusing its own employee of taking bribes. Walmart tried that approach in another Covid-era dispute involving PPE, and the jury here is entitled to know about Walmart's modus operandi of claiming bribery affected contracts it wants to wiggle out of. (RFPs 73-74.) Walmart's assertions that it investigated “both internally and through discovery' whether bribery occurred in that case but “ultimately determined” that “no bribery occurred” proves precisely why such discovery is relevant here: London Luxury is entitled to explore why Walmart made such a determination in that case despite the presence of “incriminating evidence,” but not in this one. London luxury is not compelled to take Walmart's word for it that it enforces its anti-bribery policies and provisions in a fair and consistent manner across suppliers. Walmart further notes that earlier depositions have not involved questions about whether two people discussing how they “might work together” violates Walmart policy. But that question—a legal one, ultimately—was not appropriate for these earlier witnesses, who were Walmart personnel scapegoating Mr. Small to cover their own failures on Walmart's bungled nitrile gloves initiative. It is the new compliance custodians requested by London Luxury that are appropriate witnesses on this issue.

Finally, and relatedly, London Luxury seeks documents from Walmart's compliance department, such as 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. (RFPs 55–56, 69–70.) Walmart contends these materials are irrelevant because Walmart has alleged that bribery occurred. But Walmart has not proven those allegations, and, as discussed above, Walmart's compliance documents will illuminate what Walmart has historically considered to be a material violation of its boilerplate contracts and other policies. Mr. Small's testimony that he believed his conduct was prohibited by Walmart's policies does not render this discovery irrelevant; it is for the jury to decide whether such conduct is a breach of Walmart's anti-bribery provisions. At the very least, Mr, Small never testified as to the materiality of any violation, and one of the key reasons London Luxury requires this discovery is to assess whether any technical breach of Walmart's policies was material.

Walmart's Position

Walmart has produced all documents from Walmart's agreed custodians related to Walmart's allegations that London Luxury bribed Walmart associate Garrett Small in connection with the parties' nitrile glove transaction to the extent they are not privileged or are not highly likely to be privileged (i.e., documents created after this litigation began). London Luxury now seeks five additional custodians and several new categories of documents that include irrelevant materials, such as every instance in which one of Walmart's over two million associates was suspected of bribery. The belated additional discovery London Luxury seeks has little to no relevance and reaches well beyond the scope of discovery allowed by Rule 26.

While Walmart has claimed an inappropriate relationship between London Luxury and former associate Garrett Small and sought rescission of the alleged contracts since November 21, 2021 (see ECF 141), Walmart amended its counterclaims on May 31, 2023 to add detail pertaining to London Luxury's secret plot with Mr. Small that was recently revealed in discovery. On June 14, 2023, London Luxury served its Fourth Set of Requests for Production seeking sweepingly broad and irrelevant materials.

London Luxury's eleventh-hour request for additional custodians is similarly abusive and baseless. Custodians were negotiated by the parties after London Luxury knew Walmart had alleged London Luxury bribed Mr. Small, and after Walmart had claimed recission. (See ECF 141.) London Luxury could have, but did not, seek any custodians related to Walmart's bribery policies. Walmart ultimately agreed to 22 custodians—and two additional custodians subject to limited search terms—compared to London Luxury's 14 custodians. London Luxury now seeks to renege on its agreement. Some of the custodians London Luxury now seeks—including Walmart's Global Chief Ethics and Compliance Officer, International Chief Ethics and Compliance Officer, and U.S. Chief Ethics and Compliance Officer—have no direct relevance to this case. London Luxury's request for such custodians appears to be gamesmanship and respectfully should be rejected.

Scott Richardson

Partner and Attorney at Law

McDANIEL, WOLFF

PLLC

T+1 501 954 8000 Ext. 109

Paralegal: Kisha Alverson +1 501 954 8000 Ext. 113

www.mcdanielwolff com | scott@mcdanielwolff.com | biography 11307 W. 4th Street I Little Rock. Arkansas 72201

CONFIDENTIALITY NOTICE: This message and any attachment is confidential, intended only for the use of the individual named above, and may constitute a privileged attorney-client communication. If you are not the intended recipient, or the person responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. Please notify the sender immediately of the unintended delivery of this message and permanently erase the message from your system. Please note that if this e-mail contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by McDaniel Wolff PLLC. Receipt of e-mail does not establish an attorney-client relationship.

*6 CAUTION - EXTERNAL EMAIL: This email originated outside the Judiciary. Exercise caution

From: Vince Chadick

To: Erika Esterfarook

Cc: ARWDdl Tlbinfo

Subject: RE: Questions for Walmart on document production

Date: Tliursday, March 21, 2024 3:57:51 PM

CAUTION - EXTERNAL:

Dear Ms. Esterbrook-

Answers to the Court's questions are as follows:

1. Aside from the documents listed on Walmart's privilege log over which the Court sustained Walmart's assertions of privilege, does Walmart have any other documents in its possession or control that have not already been produced but are responsive to London Luxury's discovery requests about Garrett Small's role in the nitrile glove transactions?

Walmart's Answer:

No, other than what has been logged for privilege, Walmart is not intentionally withholding any documents responsive to London Luxury's discovery requests about Garrett Small's role in the nitrile glove transaction. Walmart has intentionally searched for such documents (as described previously and below, responsiveness has been negotiated by the parties).

Walmart's searches for documents responsive to London Luxury's document requests were defined by the parties' agreements on the individual custodians whose documents would be searched, search terms that were applied, and applicable time periods. Pursuant to the agreed ESI protocol (Ex. 3 to Walmart's March 15, 2024 Letter to the Court), the parties agreed that search terms would be used to identify potentially responsive documents and that documents hitting on those search terms would be reviewed for responsiveness. Documents that were reviewed and identified as responsive to London Luxury's document requests were either produced to London Luxury or, if withheld, identified on the privilege log.

Walmart recognizes the possibility that additional documents about Garrett Small's role in the nitrile glove transaction may exist in the files of document custodians that were not among those the parties agreed would be searched for responsive documents or that do not contain the agreed-upon search terms or that are outside the agreed upon search time period.

Walmart's March 15, 2024 letter to the Court sets forth details regarding the parties' discovery negotiations and the stipulated ESI protocol, agreed custodians, search terms, and process through which Walmart diligently searched for and produced (or logged as privileged) documents. As a result of that process, Walmart produced or logged documents from the agreed relevant time period responsive to London Luxury's requests about Garrett Small's role in the nitrile glove transaction. Walmart has not undertaken to search for additional documents responsive to those requests that might be identified by a search outside of the process that was agreed to by the parties. Because of the agreed-upon limitations on the searches and productions that were part of the discovery process, Walmart cannot exclude the possibility that such documents exist.

In addition, as previously explained, Walmart notes that when it designated Vicki Vasser as a trial witness, it conducted in 2024 an independent search of Vasser's custodial file and voluntarily and promptly produced documents (outside of the agreed-upon search limitations) bearing on whether she reviewed or approved the February 2021 Letter before it was finalized and executed—the limited scope of her expected testimony. As this done outside the agreed-upon discovery parameters and to search for document in Ms. Vasser's file relevant to the scope of her trial testimony, not all documents that Walmart reviewed in this process were produced or logged, and these were not reviewed for potential responsiveness to requests about Garrett Small's role in the nitril glove transaction.

*7 Walmart does not interpret the Court's question as extending to documents created as part of litigation, including by in-house and outside counsel. Walmart's representatives have created documents about Garrett Small's role in the nitrile glove transaction as part of this litigation (up through and including today), and Walmart has consistently considered those to be outside of the scope of discovery.

Finally, the Court was not provided by London Luxury, prior to or after the July 31, 2023 discovery dispute conference, all items logged as privileged by Walmart.

2. Again, aside from the documents on Walmart's privilege log that the Court sustained as privileged, does Walmart have any other documents in its possession or control, whether inculpatory or exculpatory, that have not yet already been produced and pertain to Walmart's claims or defenses about bribery or an improper business relationship between Garrett Small and Marc Jason/London Luxury?

Walmart's Answer:

No, other than what has been logged for privilege, Walmart is not aware that it is withholding any documents pertaining to Walmart's claims or defenses about bribery or an improper business relationship between Mr. Small and Mr. Jason or London Luxury.

Walmart's response is subject to the description above and in other correspondence with the Court about the parties' agreement on the manner in which discovery was conducted and how Walmart searched for and produced documents. With respect to the narrower issues of Walmart's claims about bribery or an improper business relationship between Mr. Small and Mr. Jason or London Luxury, the facts supporting those claims were initially unknown to Walmart and were identified only through discovery in this litigation.

Again, Walmart does not interpret the Court's question as extending to documents created as part of litigation, including by in-house and outside counsel. Such documents are still being created and Walmart has considered them to be outside of the scope of discovery.

Thank you for your consideration, and I apologize for not getting this email response to you sooner, as you initially requested or even as I suggested below.

Best,

Vincent O. Chadick479.444.5208 I Fax: 479.444.5258 | vchadick@qQtlaw.com | vcard

From: Erika Esterbrook <Erika_Esterbrook@arwd.uscourts.gov>

Sent: Thursday, March 21, 2024 2:56 PM

To: Vince Chadick <vchadick@qgtlaw.com>

Cc: ARWDdl Tlbinfo <tlbinfo@arwd.uscourts.gov>

Subject: RE: Questions for Walmart on document production

[EXTERNAL EMAIL]

Understood. Thank you—we appreciate your responsiveness on such a short deadline.

Erika

Erika Esterbrook

Senior Counsel to the Hon. Timothy L. Brooks

U.S. District Judge for the Western District of Arkansas

35 E. Mountain St.

Suite 559

Fayetteville, AR 72701 479-695-4463

From: Vince Chadick «vchadick@qgtlaw.com»

Sent: Thursday, March 21, 2024 2:54 PM

To: Erika Esterbrook «Erika Esterbrook@arwd.uscourts.gov»

Cc: ARWDdl_Tlbinfo «tlbinfo@arwd.uscourts.gov»

Subject: RE: Questions for Walmart on document production

CAUTION - EXTERNAL:

Dear Ms. Esterbrook –

I'm working to get the responsive email to you ASAP. I should have the answers proofread and emailed to you a bit after 3 pm.

Thank you for your patience and understanding.

Best,

Vincent O. Chadick 479.444.52081 Fax: 479.444.5258 | vchadick@ qgtlaw.com j vcard

From: Erika Esterbrook <Erika_Esterbrook@arwd.uscourts.gov>

Sent: Thursday, March 21, 2024 11:10 AM To: Vince Chadick <vchadick@qetlaw.com>

*8 Cc: ARWDdMIbinfo <tibinfo@arwd.uscourts.gov>

Subject: Questions for Walmart on document production

[EXTERNAL EMAIL]

Good morning, Mr. Chadick.

Judge Brooks had a couple of questions for Walmart. Please respond to these by 3 p.m. today, if at all possible.

1. Aside from the documents listed on Walmart's privilege log over which the Court sustained Walmart's assertions of privilege, does Walmart have any other documents in its possession or control that have not already been produced but are responsive to London Luxury's discovery requests about Garrett Small's role in the nitrile glove transactions?

2. Again, aside from the documents on Walmart's privilege log that the Court sustained as privileged, does Walmart have any other documents in its possession or control, whether inculpatory or exculpatory, that have not yet already been produced and pertain to Walmart's claims or defenses about bribery or an improper business relationship between Garrett Small and Marc Jason/London Luxury?

Best,

Erika

Erika Esterbrook

Senior Counsel to the Hon. Timothy L. Brooks

U.S. District Judge for the Western District of Arkansas 35 E. Mountain St Suite 559

Fayetteville, AR 72701 479-695-4463

CAUTION - EXTERNAL EMAIL: This email originated outside the Judiciary. Exercise caution when opening attachments or clicking on links.

CAUTION - EXTERNAL EMAIL: This email originated outside the Judiciary. Exercise caution when opening attachments or clicking on links.

HOLWELL SHUSTER & GOLDBERG LLP

VIA E-MAIL March 22, 2024

Honorable Timothy L. Brooks

John Paul Hammerschmidt Federal Building

35 East Mountain, Room 559

Fayetteville, Arkansas 72701

Re: London Luxury, LLC v. Walmart Inc., No. 5:22-cv-5059

Dear Judge Brooks:

We appreciate the opportunity to respond to the Court's questions from yesterday.

The answer to each of the Court's questions is an unequivocal Yes: Walmart is withholding hundred if not thousands of relevant documents in its possession or control. Walmart's rambling response to the Court's simple question is false and misleading.

Background. Walmart's logs contained approximately 2,200 documents. The Court reviewed a sample of approximately 140 of those documents in camera. The Court sustained Walmart's work-product claims for 42 documents. The Court did not sustain Walmart's attorney-client privilege claims for any documents. The Court further concluded in the Waiver Order that Walmart had waived privilege over Ms. Vasser's and Ms. Chapman's advice. Dkt. 398.

Walmart's logs show that Walmart improperly continues to withhold hundreds of documents. Walmart's logs show that Walmart is still withholding or redacting at least approximately 471 documents solely on privilege grounds (not work-product) over which the Court bas not sustained any attorney-client privilege assertion. To the contrary, the Court concluded that attorney-client privilege has been waived.[1] These documents reflect, for example, advice from Vasser, Chapman, or Dow even if the attorneys are not copied on the latest email in the chain (see Ex. A, item 125).

*9 Of those approximately 471 withheld documents, over 200_involve Garrett Small as a sender, recipient, or custodian. Over 100 of those Small documents were created before October 13, 2021 and for which Walmart concededly cannot assert work-product. Another 100 of those Small documents were created after that date, and Walmart's log asserts only attorney-client privilege, which has been waived. Those communications involving Garrett Small are plainly relevant to “Garrett Small's role in the nitrile gloves transactions.”

Walmart's logs undercount the number of documents Walmart is withholding. But Walmart is withholding many more relevant documents beyond those listed on its logs. Walmart did not log all of Ms. Vasser's or Ms. Chapman's documents in Walmart's possession or control that would be responsive to London Luxury's document requests. Walmart says it did not need to log them because at the outset of discovery, before Walmart asserted its counterclaim and waived privilege, the parties agreed to a limited set of search terms for their documents after Walmart said they were privileged. Ex. B. Walmart says it can continue to withhold relevant Vasser and Chapman documents in its possession or control that do not hit on the original, limited search terms. But those search terms were generated in early 2023, on the understanding that Ms. Vasser's and Ms. Chapman's documents were privileged. Then Walmart inserted its bribery counterclaim and called Ms. Vasser as a trial witness, and that changed everything. Once Walmart waived privilege over Ms. Vasser's documents, and once Walmart called Ms. Vasser as a trial witness, all her documents become discoverable just like the other witnesses' documents, not just those documents that hit on the no-longer-relevant search terms. Accordingly, there are unquestionably relevant documents within Walmart's possession and control that it continues to withhold, and that are not reflected on any privilege log.

In fact, this was Walmart's original understanding of the consequences of its waiver; when Walmart called Ms. Vasser as a trial witness two months ago, Walmart went back into her original custodial file and cherry-picked documents to produce that Walmart thought would be helpful even if they did not hit on the original limited search terms; this was another improper selective waiver. Thus, Walmart's current position is that when Walmart waived privilege, Walmart was allowed to go back and cherry-pick documents that did not hit the search terms, and simultaneously that when the Court found a “complete” waiver of Ms. Vasser's documents, Walmart was not required to cure its cherry-picking by going back through her custodial file and producing all documents regarding the issues in the case. That position is frivolous.

Here is one stark example of clearly responsive documents Walmart continues to withhold. We learned about it a few days ago only by coincidence. On May 19, 2021, Garrett Small sent Vicki Vasser a slide presentation. Vasser thanked him for sending it and mentioned a meeting to discuss the presentation the following day; the calendar invitation for that meeting has the subject line, “Nitrile glove update.” Ex. C. Walmart has a copy of this slide presentation but refuses to produce it despite our repeated requests. Ex. D. Walmart's explanation of this position is preposterous. Walmart says the slide presentation was deleted from Small's custodial file, and Walmart has a copy in Ms. Vasser's custodial file but refuses to produce it. This is an intentional violation of the Waiver Order. Walmart also has no explanation for how the document was deleted from Small's files.

*10 Here is another example, which again we learned only a few days ago. On April 28, 2021, Small emailed Vasser an attachment containing proposed language relating to the letter of credit. Ex. E. But Walmart withheld this obviously relevant attachment, and the attachment was not even logged on Walmart's privilege log. After we objected, Walmart produced the document at the last minute before Ms. Vasser's deposition, but Walmart refused to correct the larger problem that documents are being withheld and not even logged.

As for how many of the withheld documents specifically relate to “Walmart's claims or defenses about bribery or an improper business relationship between Garrett Small and Marc Jason/London Luxury,” the Court correctly stated in the Waiver Order that “London Luxury doesn't know what it doesn't know about the Vasser documents still being withheld,” and that “Ms. Vasser's role is inextricably baked into the center of the parties' contentions.” Dkt. 398 at 5. For example, Small's communications with Vasser show that Small continuously reached out to Vasser for help in enforcing Walmart's rights against London Luxury (Ex. F), which directly supports London Luxury's position that Small had not been bribed. The Court has correctly concluded that “Walmart's waiver is a complete one, not a partial one,” and that “Walmart must immediately produce all Vasser documents that are still being withheld and that are dated prior to the filing of suit by London Luxury.” Id. Walmart continues to violate that Order. Walmart obviously is not entitled to self-servingly announce to the Court that no further documents on this subject could possibly exist.

All these games must stop. Trial starts Monday. A production of documents now would be too late to cure Walmart's misconduct and intentional delay. Walmart has intentionally violated the Court's Waiver Order. London Luxury promptly sought relief at the final pretrial conference and has persisted in seeking that relief. At this late stage, the only relief that will cure Walmart's repeated and intentional discovery failings and willful violations of the Court's Orders is to instruct the jury that Walmart was required to provide certain evidence to London Luxury, including as a result of Court orders, and Walmart did not do so, and the jury may infer that Walmart is withholding evidence that would be favorable to London Luxury and unfavorable to Walmart.

Respectfully submitted,

Brendon DeMay