Fayetteville Attorney Seeks Sanctions Against Wal-Mart, Saying It Abused Process

Fayetteville Attorney Seeks Sanctions Against Wal-Mart, Saying It Abused Process
Mark M. Henry said Wal-Mart executive Tal Herman initially tried to hire Cuker for the Walmart2Go project and then changed his mind. (Beth Hall)

Fayetteville attorney Mark Henry last week asked a federal judge to sanction Wal-Mart Stores Inc. for alleged discovery abuses throughout the case involving Cuker Interactive LLC of San Diego.

“Walmart’s chronic abuse of the discovery rules led to many sanctions throughout the course of this lawsuit, which predictably caused both a needless waste of time and money,” Henry wrote in the motion filed Thursday. “While the world’s largest retailer has an unending supply of time and money to engage in such obstructive tactics, the unwitting casualties of Walmart’s recidivistic abuse are both the Court and the prevailing party to the unanimous jury verdict, Cuker Interactive.”

U.S. District Judge Tim Brooks already found in October 2015 that “Wal-Mart has abused the discovery process” by its nearly ubiquitous use of the highly confidential “attorney’s eyes only” designation on the documents it produced in the case.

Henry said in the motion for sanctions that Wal-Mart used the AEO classification “as a means to prevent Cuker’s computer and financial experts from reviewing relevant evidence.”

Henry also said that Wal-Mart and its attorneys “flatly refused” to provide the code used for its Walmart2Go website so it could be compared with code Cuker produced under a contract for another Wal-Mart website.

Wal-Mart’s attorney called it a fishing expedition, according to Henry. Wal-Mart also argued that Cuker’s code was such poor quality that it didn’t work. In a telephone hearing in May 2016, Wal-Mart attorney Teresa Wineland of Little Rock told Judge Brooks that no Cuker code would be found anywhere in connection with the retailer’s platforms or websites.

“The code was never in any condition to use,” Wineland said at the hearing, an excerpt of which was included in Henry’s filing.

Cuker’s frustration seemed to be shared by Judge Brooks, whose warnings to Wal-Mart also show up in Henry’s motion for sanctions.

Last May Brooks said that if it turned out that Cuker’s code was found on Wal-Mart’s platforms, “then certainly the Court would view that as a very key finding in determining whether fees or sanctions or what have you would be appropriate down the road.” In a January hearing he said, “The Court finds that Wal-Mart apparently is just not taking either this litigation seriously or this Court’s orders seriously, and that’s got to change,”

After Cuker finally received the Walmart2Go code, its expert found that Cuker’s code was in fact present, according to Henry’s pleading. A Fayetteville jury agreed and last month awarded Cuker more than $12 million.

Wal-Mart spokesman Randy Hargrove told Arkansas Business last week that it disagrees with the plaintiff’s accusations. “We worked diligently to meet the plaintiff’s requests,” he said.

Henry is asking for an award of all of Cuker’s costs, expenses and fees generated throughout the case.