
                        IN THE INDIANA SUPREME COURT

GRIBBEN, Patricia,

            plaintiff,

            v.

WAL-MART STORES, INC.,

           defendant.
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Supreme Court case no.
94S00-0403-CQ-130

U.S. District Court., So. Dist., Indpls Div.
case no. 1:03-cv-1411-VSS/SEB

                                    ORDER

      The  United  States  District  Court  for  the  Southern  District  of
Indiana, Indianapolis Division,  has  certified  two  questions  of  Indiana
state law for this Court’s consideration pursuant to Indiana Appellate  Rule
64.  The questions arise in Patricia Gribben v. Wal-Mart Stores, Inc.,  case
no.  1:03-cv-1411-VSS/SEB.    The  questions,  as  framed  by  the   federal
district court, are:

      1.  Does Indiana law recognize a claim for “first-party” spoliation of
      evidence;  that  is,  if  an   alleged   tortfeasor   negligently   or
      intentionally destroys or discards evidence that is relevant to a tort
      action does the plaintiff  in  the  tort  action  have  an  additional
      cognizable claim against the tortfeasor for spoliation of evidence?

      2.  If so, what are the elements of the tort,  and  must  a  plaintiff
      elect  between  pursuing  the  spoliation  claim  and   utilizing   an
      evidentiary inference against the alleged tortfeasor in the underlying
      tort action?

      The request has been considered by each member of the Court,  and  the
certified questions are accepted pursuant to Appellate Rule 64.   The  Court
directs simultaneous briefing as follows.

      The respective sides in the federal action are each allowed  a  single
main brief and a single response brief.  The  plaintiff’s  briefs  shall  be
bound with blue covers; the defendant’s with  red  covers.   Except  to  the
extent this order directs otherwise, the  four  briefs  shall  substantially
conform to the provisions of Appellate Rules 43 and  44.   In  addition,  an
appendix shall be filed containing copies  of  documents  from  the  federal
court that the parties believe are necessary or  helpful  for  deciding  the
questions, including, as applicable, the items listed in Appellate Rule  50.
 It is anticipated that the parties will confer and agree  on  the  material
to be included in an appendix.  The cover of the appendix shall be blue  and
labeled “Plaintiff’s Appendix.”  An original and five copies of  each  brief
and appendix are to be filed  with  our  Clerk  and  single  copies  of  any
filings shall be served on all counsel of record.

      The two main briefs must be  filed  by  May  3,  2004.   These  briefs
shall, to the extent reasonably practical,  conform  to  the  provisions  of
Appellate Rule 46(A).  The briefs may not exceed 8400  words,  exclusive  of
the items listed in Appellate Rule 44(C) and shall  be  accompanied  by  the
verified statement of word count referred to in Appellate Rule  44(F).   The
two response briefs must be filed by May 25, 2004.   These  briefs  may  not
exceed 2400 words exclusive of the items listed  in  Appellate  Rule  44(C),
and shall be accompanied by the verified statement of  word  count  referred
to in Appellate Rule 44(F).  The appendix must be filed along with the  main
briefs.  Extensions  of  time  will  be  granted  only  under  extraordinary
circumstances and any motion seeking an  extension  of  time  must  be  made
jointly by both parties.

      The Clerk is directed to send a copy of this order to the Hon. V.  Sue
Shields, United States Magistrate Judge; to the Office of the Clerk  of  the
U.S.  District  Court,  105  U.S.   Courthouse,   46   East   Ohio   Street,
Indianapolis, Indiana 46204; to Morris L.  Klapper;  to  George  W.  Parish,
Jr.; to Thomas L. Davis; to Eric A. Reigner;  and  to  West  Publishing  for
publication in the reported decisions of this Court.

      Done at Indianapolis, Indiana this26th day of March, 2004.



                                        /s/
                                        Randall T. Shepard
                                        Chief Justice of Indiana

