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Gerber Products Co. v. CECO Concrete Construction, LLC

Court of Appeals of Arkansas, Division I

November 1, 2017

GERBER PRODUCTS COMPANY APPELLANT
v.
CECO CONCRETE CONSTRUCTION, LLC, AND ALBERICI CONSTRUCTORS, INC. APPELLEES

         APPEAL FROM SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCV-12-435] HONORABLE STEPHEN TABOR, JUDGE

          Ledbetter, Cogbill, Arnold & Harrison, LLP, by: Victor L. Crowell, for appellant.

          Williams & Anderson, PLC, by: David M. Powell, Alec Gaines, and Heather G. Zachary, for appellee CECO Concrete Construction, LLC.

          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 take 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)(1)(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 addresses 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, Vee-Jay 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 Alberici 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 ...


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