LAMAR v. WAL-MART STORES EAST LP et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JANET LAMAR, 	:
:
Plaintiff, 	:
: 	CIVIL ACTION
v. 	: 	No. 5:24-cv-00276-CAR
:
WAL-MART STORES EAST LP and 	:
JOHN DOES 1-5, 	:
:
Defendants. 	:
_________________________________ 	:
ORDER DENYING MOTION TO COMPEL
Currently pending before the Court is Plaintiff’s Motion to Compel, seeking the
Court grant leave to re-depose one witness, compel Defendant to make available two
witnesses for depositions, and extend the time to respond to Defendant’s summary
judgement motion.1 For the reasons explained below, the Court DENIES the Motion
[Doc. 42].
BACKGROUND
On August 5, 2022, Plaintiff Janet Lamar slipped and fell on a substance on the
floor at Defendant Walmart Stores East LP’s store in Macon.2 On July 9, 2024, in Bibb
1 Doc. 42.
2 Doc. 1-3.
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County State Court, Plaintiff Janet Lamar filed her Complaint,3 and on August 14, 2024,
Walmart timely removed this case.4
On September 30, 2024, this Court entered its Scheduling and Discovery Order,
which provides “[b]efore moving for an order relating to discovery, including motions to
compel or contested motions for protective orders, the movant must contact Beverly Lillie
Courtroom Deputy, beverly_lillie@gamd.uscourts.gov to request a telephone conference
with the Court.”5
On January 23, 2025, Walmart informally emailed Plaintiff names of individuals,
including Shanterica Johnson, a former Walmart personal shopper, and Latealhia
Wimberly, a Walmart employee, who had been identified in the store video of Plaintiff’s
incident.6 Later, on February 10, 2025, Walmart formally provided this information to
Plaintiff 	in 	Walmart’s 	First 	Supplemental 	Answers/Responses 	to 	Plaintiff’s 	First
Interrogatories and Request for Production of Documents.7
3 Id.
4 Doc. 1.
5 Doc. 6 at 6.
6 Doc. 42-3 at 2; Doc. 55-1.
7 Doc. 42-3 at 1-3; Doc. 55-2.
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On May 2, 2025, Mr. Gilliland took Ms. Wimberly’s deposition,8 and on June 13,
2026, Ms. Wimberly executed her errata sheet, listing changes to her deposition
testimony.9
On 	September 	10, 	2025, 	Walmart 	served 	Plaintiff 	with 	Walmart’s 	Third
Supplemental Answers to Plaintiff’s Interrogatories and Request for Production of
Documents which provided Ms. Johnson’s last known phone number and address.10 On
October 30, 2025, the deadline for discovery expired.11
On November 26, 2025, Walmart filed its Motion for Summary Judgment and
attached the following: (1) Excerpts from Ms. Wimberly's Deposition with her Errata; (2)
Ms. Johnson’s Declaration; and (3) Ms. Wimberly’s Supplemental Declaration.12 Both
declarations were executed on November 26, 2025.13
On December 22, 2025, Mr. Gilliland violated this Court’s Scheduling Order for
the second time by filing Plaintiff’s Motion to Compel Depositions before contacting and
requesting a telephone conference with the Court.14 On January 26, 2026, Walmart
responded.15
8 Doc. 42-1.
9 Doc. 42-4; Doc. 33-4.
10 Doc. 42-3 at 4.
11 Doc. 29.
12 Doc. 33; Doc. 33-4; Doc. 33-5; Doc. 33-8.
13 Doc. 33-5; Doc. 33-8.
14 Doc. 42; see Doc. 21; Doc. 23 at 2:19-3:5.
15 Doc. 55.
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DISCUSSION
In her Motion to Compel Depositions, Plaintiff seeks an order granting leave to
depose Ms. Wimberly again and to compel Walmart to make Ms. Wimberly and Ms.
Johnson available for depositions.16 Plaintiff also requests this Court extend Plaintiff’s
time to respond to Walmart’s Motion for Summary Judgment.17 For the reasons explained
below, the Court DENIES the Motion [Doc. 42].
I. Requested Second Deposition of Ms. Wimberly
Plaintiff 	contends 	alleged 	material 	changes 	in 	Ms. 	Wimberly’s 	deposition
testimony entitle Plaintiff to depose Ms. Wimberly a second time under Fed. R. Civ. P.
30(a)(2)(A)(ii). This Court disagrees.
Fed. R. Civ. P. 30(a)(2)(A)(ii) provides “[a] party must obtain leave of court, and
the court must grant leave to the extent consistent with Rule 26(b)(1) and (2)[] . . . if the
parties have not stipulated to the deposition and[] the deponent has already been
deposed in the case[.]” Thus, “the Court has the discretion to grant leave for a second
deposition[]” of a person previously deposed.18
Regarding the scope of permissible discovery, Rule 26(b)(1) provides:
“Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the
16 Doc. 42.
17 Doc. 42.
18 Mokris v. United States, No. 2:20-CV-34-JES-MRM, 2021 WL 8822316, at *2 (M.D. Fla. July 15, 2021)
(citing Isaac v. RMB Inc., 604 F. App'x 818, 821 (11th Cir. 2015)).
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case, considering . . . the importance of the discovery in resolving the
issues[] and whether the burden or expense of the proposed discovery
outweighs its likely benefit[.]”19
Rule 26(b)(2)(C) requires the Court to limit the frequency or extent of discovery if:
(i) the discovery sought is unreasonably cumulative or duplicative, or can
be 	obtained 	from 	some 	other 	source 	that 	is 	more 	convenient, 	less
burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity to obtain the information by discovery in the action; (iii)
the proposed discovery is outside the scope permitted by Rule 26(b)(1).20
Accordingly, the requested deposition must be proportional to the needs of the case to be
permissible.
Here, Plaintiff seeks to depose Ms. Wimberly for the second time to question her
regarding changes she made to her previous deposition testimony. If Ms. Wimberly’s
declaration or errata sheet “flatly contradicts her own prior deposition testimony”
without explanation, then the Court may use the sham affidavit rule to disregard Ms.
Wimberly’s supplemental declaration and apply the analogous rule to disregard Ms.
Wimberly’s errata sheet for the purpose of Defendant’s pending motion for summary
judgment.21 Thus, the proposed discovery would be of low importance and impose an
undue burden on Ms. Wimberly and Walmart. Because Plaintiff’s requested deposition
19 Fed. R. Civ. P. 26(b)(1).
20 Fed. R. Civ. P. 26(b)(2)(C).
21 Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1306 (11th Cir. 2016); Van T. Junkins & Assoc., Inc. v. U.S.
Indust., Inc., 736 F.2d 656, 657 (11th Cir.1984) (“When a party has given clear answers to unambiguous
questions which negate the existence of any genuine issue of material fact, that party cannot thereafter
create such an issue with an affidavit that merely contradicts, without explanation, previously given clear
testimony.”); Great Lakes Ins. SE v. Wave Cruiser LLC, 36 F.4th 1346, 1357 n.7 (11th Cir. 2022) (adopting the
sham affidavit approach for errata sheets that contradict the substance of prior deposition testimony) (citing
Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000)).
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would obtain disproportionate and unduly burdensome discovery, the Court DENIES
Plaintiff’s request to depose Ms. Wimberly again.
II. Requested Deposition of Ms. Johnson
Plaintiff also contends Walmart deprived Plaintiff of the opportunity to depose
Ms. Johnson by failing to timely supplement its disclosures, thereby entitling Plaintiff to
Rule 37(e) sanctions against Walmart, specifically leave to depose Ms. Johnson after the
discovery period has expired.22 Plaintiff further asserts Walmart “violate[d] the spirit of
[Fed. R. Civ. P.] 	26(e)'s requirement” to timely supplement disclosures by “fail[ing] to
supplement its disclosures to indicate that it had located Ms. Johnson and intended to
rely on Ms. Johnson's testimony in its [motion for summary judgment.]”23
Contrary to Plaintiff’s assertions, Walmart timely notified Plaintiff Ms. Johnson
was a possible witness over one year ago when Walmart identified her as a person in the
store video of Plaintiff’s incident, and Walmart provided Plaintiff with Ms. Johnson’s last
known contact information, including her address and phone number, over two months
before Walmart filed its motion for summary judgment, well within the discovery period,
in Walmart’s Third Supplemental Answers to Plaintiff’s Interrogatories.24 Thus, Walmart
exercised its duty under Rule 26(e) to timely supplement its disclosures and answers to
22 Doc. 42.
23 Id.
24 Doc. 55-1; Doc. 55-2; Doc. 42-3 at 4.
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interrogatories and provided timely notice to Plaintiff that Ms. Johnson may be used as a
witness. But despite receiving timely notice, Plaintiff decided not to depose Ms. Johnson
and must now live with the consequences of that decision. Thus, the Court DENIES
Plaintiff’s request to depose Ms. Johnson.
As a result, the Court also DENIES AS MOOT Plaintiff’s request for an extension
of time to respond to Defendant’s motion for summary judgment until five days after she
receives Ms. Wimberly’s and Ms. Johnson’s deposition transcripts.25 Thus, the Court
DENIES Plaintiff’s Motion to Compel [Doc. 42].
CONCLUSION
For the reasons explained above, the Court DENIES Plaintiff’s Motion to Compel
[Doc. 42].
SO ORDERED, this 3rd day of February, 2026.
s/ C. Ashley Royal_________________
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
25 Doc. 42 at 11-13.
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