Gerber Products Co. v. CECO Concrete Construction, LLC

2017 Ark. App. 578, 2017 Ark. App. 568, 533 S.W.3d 139, 2017 Ark. App. LEXIS 659
CourtCourt of Appeals of Arkansas
DecidedNovember 1, 2017
DocketCV-16-1096
StatusPublished
Cited by12 cases

This text of 2017 Ark. App. 578 (Gerber Products Co. v. CECO Concrete Construction, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerber Products Co. v. CECO Concrete Construction, LLC, 2017 Ark. App. 578, 2017 Ark. App. 568, 533 S.W.3d 139, 2017 Ark. App. LEXIS 659 (Ark. Ct. App. 2017).

Opinion

RAYMOND R. ABRAMSON, Judge

|!Appellant Gerber Products Company (Gerber) brings this interlocutory appeal from two discovery orders entered by the Sebastian County Circuit Court. Therein, the court denied Gerber’s motion for a protective order and required Gerber to produce certain documents that it had withheld on the grounds of attorney-client and work-product privileges. The court also refused to require appellees CECO Concrete Construction, LLC (CECO), and Alberici Constructors, Inc. (Alberici), to return or destroy privileged documents that Gerber had inadvertently produced during the discovery process. We affirm the circuit court’s rulings.

I. Jurisdiction

Because it is unusual for our appellate courts to entertain an interlocutory appeal, we | stake this opportunity to explain the basis for our jurisdiction.

In 2012, our supreme court adopted Rule 2(f) of the Arkansas Rules of Appellate Procedure — Civil. See In Re Ark. Rules of Civil Procedure, Appellate Procedure, 2012 Ark. 236. Rule 2(f) provides that a party may seek the supreme court’s permission to file an interlocutory appeal from certain designated discovery orders involving the defense of privilege. The rule further provides that in determining whether or not the interlocutory appeal may proceed,' the supreme court will be guided by six factors: the need to prevent irreparable injury; the likelihood that the petitioner’s claim of privilege or protection will be sustained; the likelihood that an immediate appeal will delay a scheduled trial date; the diligence of the parties in seeking or resisting an order compelling the discovery in circuit court; the circuit court’s written statement of reasons supporting or opposing immediate review; and any conflict with precedent or other controlling authority as to which there is substantial ground for difference of opinion. Ark. R. App. P.-Civ. 2(f)(l)(a)-(f) (2016). If the supreme court allows the appeal, the petitioner must file a timely notice of appeal and an appellate record. Ark. R. App. P.-Civ. 2(f)(3).

In the present case, Gerber filed a Rule 2(f) petition to appeal from two discovery orders involving a claim of privilege. The supreme court granted the petition and transferred Gerber’s appeal — along with two other Rule 2(f) cases in which permission to appeal had been granted — to our court in August of this year. Our jurisdiction is therefore pursuant to Rule 1 — 2(d) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas (providing that the supreme court may transfer to the court of appeals any case appealed to the supreme court). Our research indicates that this will be the first case that |3addresses the merits of a Rule 2(f) appeal.

II. Background

This case stems from a construction project at the Gerber plant in Fort Smith. Appellee Alberici served as the general contractor and construction manager on the project, and appellee CECO was hired to perform concrete work.

In 2012, a subcontractor on the job, Veejay Cement Contracting Company, Inc., sued Gerber, CECO, and Alberici in Sebastian County Circuit Court. Vee-Jay’s claims were resolved and dismissed, but cross-claims remained among Gerber, CECO, and Alberici. It was in the context of these cross-claims that CECO and Al-berici propounded requests for production of documents (RFPs) to Gerber in early 2013 during the discovery phase of the litigation.

The RFPs asked that Gerber produce contracts, reports, emails, and other correspondence and paperwork related to the construction project, along with the personnel files of two employees. Gerber objected to providing the personnel files on grounds of confidentiality and irrelevance but otherwise made no objection to the RFPs. In particular, Gerber made no objection that the requested materials were protected by attorney-client or work-product privileges. Instead, Gerber responded to the RFPs with the statement, “See documents provided on enclosed diskettes.”

The diskettes that Gerber provided contained approximately 2,700 pages of documents. Upon reviewing the documents, CECO and Alberici (hereafter, collectively “CECO”) determined that few, if any, emails from the year 2011 had been produced. CECO asked Gerber for the 2011 emails and, after several requests, was told that only two [¿relevant emails existed from that period. CECO also noticed that some of the documents included on the diskettes contained privileged materials. CECO informed Gerber of that fact and returned the documents. Gerber stated that it would provide more material and would work on providing a privilege log. 1 As noted hereafter, the privilege log would not be provided for over two years.

In May 2013, CECO filed a motioii to compel further production of documents by Gerber. The circuit court granted the motion in July 2013, ruling that Gerber had not objected to the RFPs but had “unilaterally” redefined the scope of the requests and produced only those documents in line with its “narrowed interpretation” of the requests. The court stated; “Having made no objection .,. Gerber is bound to respond to the requests for production as written.” After the entry of the court’s order, Gerber sent CECO approximately 96,000 pages of additional documents— considerably more than the 2,700 pages it had initially considered responsive to the RFPs. CECO characterized the production as a “document dump” but reviewed the materials and still found them wanting, CECO detailed the perceived deficiencies in a June 2015 letter to Gerber and propounded a,second set of RFPs.

Thereafter, Gerber provided several thousand more pages of documents and in July 2015 produced an eight-page privilege log. The log listed several items that Gerber claimed were subject to attorney-client and work-product privileges.

In .October 2015, CECO filed a second . motion to compel seeking a more complete | .^response to its RFPs. The motion stated that Gerber had produced additional documents “fitfully and incompletely”; had “peppered” the production with irrelevant materials; and had not filed objections to either the first or second set of RFPs. The circuit court granted the motion to compel in January 2016 and imposed a $2,500 sanction on Gerber, stating that there was reason to believe that Gerber had either intentionally delayed production, withheld production, or produced large amounts of unresponsive material,

Soon thereafter, Gerber produced an additional 18,000 pages of documents and a second privilege log. The thirteen-page log contained over 200 entries listing items that Gerber considered to be protected by attorney-client or work-product privilege — ■ some of which had not been identified in ' the previous privilege log.

Within. weeks, CECO sent a letter to Gerber asserting that Gerber had waived its claim of privilege by waiting too long to assert it and that, in any event, Gerber had already turned over some of the materials listed in the privilege log without objection in an earlier “document dump.” By this point, Gerber had acquired new counsel who responded that Gerber had not waived attorney-client privilege and asked that CECO return or destroy numerous inadvertently provided materials. CECO refused.

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Bluebook (online)
2017 Ark. App. 578, 2017 Ark. App. 568, 533 S.W.3d 139, 2017 Ark. App. LEXIS 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerber-products-co-v-ceco-concrete-construction-llc-arkctapp-2017.