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By Michael Greene
Jan. 13 — In a contentious books and records action ongoing in the Delaware Chancery Court, Wal-Mart Stores Inc. is proposing that it undertake a complete re-review of approximately 265,000 documents before it files its opposition to a contempt motion accusing the megastore of failing to comply with a court order.
Accordingly, the retailer has asked the plaintiff to stipulate to a scheduling order that will require Wal-Mart to file its opposition to plaintiff's contempt motion within 10 days of completing the re-review.
In its Dec. 11 motion for civil contempt, the Indiana Electrical Workers Pension Trust Fund IBEW, the plaintiff that filed the §220 books and records demand, claimed that “[t]hese sanctions will serve to bring Wal-Mart's deliberate two-plus year foot-dragging campaign to an end”.
On Dec. 8, Wal-Mart certified to the chancery court that it had fully complied with a July Delaware Supreme Court order requiring the company to release myriad internal documents about what directors and officers knew about alleged bribes made by executives at its subsidiary in Mexico.
However, three days later, the plaintiff filed the contempt motion claiming that “[t]here are numerous examples of documents that plaintiff's counsel is aware of that Wal-Mart counsel knows to exist, but has nevertheless failed to produce,” including certain e-mails about the allegations to former Chief Executive Officer Michael Duke and notes prepared by Scott Draper, a Wal-Mart vice president who oversees internal audits.
Accordingly, the plaintiff is requesting $1 million in sanctions and requesting that the court make Wal-Mart pay $10,000 a day until it complies with the production order.
The plaintiff previously had complained about Wal-Mart's rate of production compared with pending derivative litigation in Arkansas. The underlying Delaware derivative action and two related Arkansas actions are ongoing, and the plaintiff has warned of a scenario in which Arkansas courts could render a judgment that would be binding in Delaware.
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Wal-Mart's letter is available at http://www.bloomberglaw.com/public/document/CONS_W_CA_7726_CS_CONF_ORD_ON_DISC_Indiana_Electrical_Workers_Pen/2
The exhibit to the letter is available at http://www.bloomberglaw.com/public/document/CONS_W_CA_7726_CS_CONF_ORD_ON_DISC_Indiana_Electrical_Workers_Pen/3
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