“Please produce your policies and procedures concerning” whatever is at issue in the lawsuit. If I had $1.00 for every time someone used the term “policies and procedures” in my cases… I would have retired by 30. The prevailing theory among many lawyers is that if you can demonstrate 1) the opposing party had a policy or procedure on a given topic, and 2) the opposing party breached that policy or procedure, then 3) negligence or comparative fault has been established because the party defined its own standard of care by having a policy or procedure. This in turn leads to the discovery requests that sadly did not make me rich. It also leads to what I consider asinine arguments that if the opposing party does not have a policy or procedure on a given topic, then that too is prima facie evidence of negligence.
However, maybe this focus on policies and procedures is completely misplaced. In McConnell v. Wal-Mart, Judge Jones ruled on a bevy of motions in limine. There were two addressing policies and procedures. In one, Wal-Mart asked the court to exclude testimony from employee Mary Soto “concerning whether Soto’s post-incident investigation violated Wal-Mart’s procedures.” The motion was granted because “[t]he answers to those questions would not be relevant to any issue in the case.”
The other related to Wal-Mart’s motion to exclude an opposing liability expert. The expert proposed to testify that Wal-Mart failed to follow its own internal policies and procedures relevant to the event at issue. Judge Jones excluded this testimony.
Finally, whether Defendant adhered to its own policies—apparently another area in which Mr. Peterson would testify—is simply not relevant to whether it was negligent in this case. Adherence to insufficient policies will not exculpate a negligent defendant any more than non-adherence to sufficient policies will inculpate him. Whether a defendant’s actions in a particular instance are negligent does not at all depend upon his habits or personal guidelines for his own behavior.
In other words, the question in the case is whether the party acted consistently with the standard of care, not whether it followed its own policies and procedures.
A similar issue then arose in Lologo v. Wal-Mart Stores, Inc. The plaintiff asked that testimony be excluded concerning whether an employee’s post-accident investigation met Wal-Mart’s internal procedures. Judge Navarro granted the motion, cited McConnell and stated “[i]t is well established that whether an employee followed his employer’s policies leading up to or following an accident is irrelevant to a negligence claim.” She concluded “that evidence regarding whether Mr. Mott conformed to Wal-Mart’s accident investigation procedures to be irrelevant….”
In practical terms, these two rulings make clear that in Nevada’s federal courts, evidence of policies and procedures are irrelevant at trial. The question then becomes whether policies and procedures are even discoverable or a valid topic for deposition questioning. The revised federal rules laid to waste the “not calculated to lead to the discovery of admissible evidence” objection in favor of a focus on proportionality. Still, if the evidence sought (policies and procedures) is expressly inadmissible (it is per these two decisions), then the burden of producing this information seems to outweigh its usefulness, by definition. Further, if an opposing party’s policies and procedures cannot be used to establish a standard of care, then whoever has the burden of proof had better have something else that does or risk summary judgment.