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Entergy Arkansas, Inc. v. Francis

Court of Appeals of Arkansas, Division II

April 18, 2018



          Quattlebaum, Grooms & Tull PLLC, by: Steven W. Quattlebaum, John E. Tull III, Michael N. Shannon, and Michael B. Heister, for appellants.

          Bailey & Oliver Law Firm, by: Sach D. Oliver and Frank H. Bailey; Walas Law Firm, PLLC, by: Breean Walas; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee Ronnie Francis.

          Munson, Rowlett, Moore & Boone, P.A., by: Elizabeth Fletcher and Bruce Munson, for appellee Bigge Crane and Rigging Co.


         This case is one of several that arose from an accident that occurred at Entergy's Arkansas Nuclear One ("Nuclear One") plant in Russellville on March 31, 2013, when a temporary crane failed as it lowered one of the plant's decommissioned main turbine generator stators onto a transport vehicle that was parked one story below, in the facility's train bay. The stator, which weighed over 500 tons, fell approximately thirty feet. The accident caused several injuries and one fatality, as well as considerable structural damage to the plant. Ronnie Francis, the plaintiff in the case below, was an iron worker who was injured as he attempted to help a man who had become trapped under one of the beams of the fallen crane.

         Francis filed a complaint in the Pope County Circuit Court, alleging several claims of negligence against Entergy Arkansas, Inc., and Entergy Operations, Inc. ("Entergy"); primary contractor Siemens Energy, Inc. ("Siemens"); and several subcontractors, including Bigge Crane and Rigging Company ("Bigge"). This is an interlocutory appeal from the circuit court's order denying Entergy's motion for a protective order in which Entergy argued that the work-product privilege applied to two internal investigation reports that Entergy prepared in the aftermath of the accident. The circuit court ordered Entergy to produce the documents to Bigge, which had propounded written discovery seeking the documents, and to Francis, who had not. We affirm the circuit court's order requiring production to Bigge. We reverse, however, the order requiring production to Francis.

         I. Jurisdiction

         Rule 2(f)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that a party may seek the supreme court's permission to file an interlocutory appeal from certain discovery orders involving the defense of a privilege, including opinion work product. The rule provides that the supreme court's discretion to grant permission is guided by six factors, including (1) the need to prevent irreparable injury; (2) the likelihood that the petitioner's claim of privilege or protection will be sustained; (3) the likelihood that an immediate appeal will delay a scheduled trial date; (4) the diligence of the parties in seeking or resisting an order compelling the discovery in the circuit court; (5) the circuit court's written statement of reasons supporting or opposing immediate review; and (6) 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) (2017). 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, Entergy filed a Rule 2(f) petition to appeal from the circuit court's order denying its motion for a protective order based on the work-product privilege. On August 3, 2017, the supreme court granted permission and transferred the appeal to our court. Our jurisdiction, therefore, is pursuant to Rule 1-2(d) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, which provides that the supreme court may transfer to the court of appeals any case appealed to the supreme court.

         II. Background

         In 2011, Entergy contracted with Siemens to remove and replace one of Nuclear One's main turbine generator stators, which, powered by steam from the plant's nuclear reactor, generated the electricity produced at the plant. Siemens subcontracted with Bigge for a temporary crane and rigging services to remove the original stator and install its replacement. The temporary crane was intended to lift the stator from its mooring on the plant's main turbine deck, carry it several feet to the train-bay opening, and then lower the stator onto a transport that waited below.

         The stator lift began at approximately 7:40 a.m. on Sunday, March 13, 2013. After the lift was underway, the supervisors realized that the stator would not clear a guardrail at the opening of the train bay. Several iron workers, including Francis, were called in to remove the guardrail while the stator lift was in progress. Shortly after the guardrail was removed, the temporary crane failed, and pieces of the crane, as well as the stator, fell to the main turbine deck and through the train-bay opening. Several of the workers standing by, including Francis, were injured in the accident. Wade Walters, a twenty-four-year-old journeyman iron worker, was killed.

         Entergy immediately began an internal investigation or, by industry terminology, a "root-cause evaluation" of the accident. The root-cause evaluation was required by the Nuclear Regulatory Commission and Entergy's internal policy, and its purpose was to identify and determine the cause(s) of "conditions adverse to quality" and to document the "corrective action taken to preclude repetition."

         Entergy issued its first root-cause evaluation on July 22, 2013. The report concluded that the root cause of the stator drop was the crane's defective design, which did not ensure that the crane "could support the loads anticipated for the lift." The report also found, as an additional root cause, that Bigge, who designed and furnished the crane, "failed to perform required load testing of their [crane] prior to its use at [Nuclear One] in accordance with OSHA regulation." The report further concluded, in pertinent part, that Bigge and Siemens also contributed to the accident by "inaccurately represent[ing] that the [crane] had been used at other electric power stations to lift components that exceeded the anticipated weight of the . . . stator, " as well as Siemens's failure "to provide adequate oversight and control of Bigge's performance."

         The Nuclear Regulatory Commission later found, during its own inspection of the Nuclear One facility, that the July 2013 root-cause evaluation was not adequate. Specifically, the report "did not address Entergy's oversight of the contractors involved with the stator lift, " and the Commission's inspectors determined that "Entergy did not ensure adequate supervisory and management oversight of the contractors and other supplemental personnel involved with the stator lift, and this contributed to the event." Consequently, on December 10, 2014, Entergy issued another root-cause evaluation that identified additional root causes of the accident, including, among other things, Entergy's failure to provide adequate guidance and project-management oversight of the design and testing of the temporary crane.[1]

         Francis filed his complaint on November 21, 2013, alleging several claims of negligence against Entergy, Siemens, Bigge, and other contractors associated with the stator-lift project. The Francis case was one of several that followed the stator-lift accident, and the multiple cases generated overlapping requests for discovery. Several months after Francis filed his complaint, Bigge propounded 79 interrogatories and 64 requests for production to Entergy. The discovery sought documents and information for a separate property-damage case that Entergy had filed against Bigge and other subcontractors, as well as for the Francis case. The interrogatories included "Interrogatory No. 21, " which, among other things, requested that Entergy "identify all persons who reviewed and investigated the occurrence" at Nuclear One on March 31, 2013, and "provide all documentation related to that review as it relates to any acts or omissions of Siemens Energy, as it relates to the Stator Exchange Project[.]" The requests for production included "Request for Production No. 9, " which sought, in pertinent part, "all documents relating to or referring to [y]our post-accident investigation[, ] which you allege revealed the alleged errors of and misrepresentations in [Bigge's] calculations" regarding the temporary crane. Likewise, "Request for Production No. 63" specifically requested production of the first root-cause evaluation, in addition to twenty-one other enumerated documents.

         Subsequently, on October 30, 2014, Entergy provided responses and objections to the interrogatories and requests for production. To "Interrogatory No. 21, " Entergy responded that "Entergy's counsel directed a root cause team that investigated the March 31, 2013, incident, " but otherwise objected to the interrogatory "to the extent it [sought] information protected by the attorney-client privilege or attorney work product privilege[, ]" as well as other objections. Entergy similarly objected to "Request for Production No. 9, " "to the extent that it seeks information protected by the attorney-client privilege or attorney work product privilege, " as well as several other objections. In response to "Request for Production No. 63, " Entergy stated the following:

Subject to and without waiving the objections below, Entergy has conducted a reasonable and diligent inquiry, and shall produce responsive, non-privileged documents in its possession located as a result of its inquiry, if any. However, Entergy will not produce documents already produced by Entergy or another party in any of the actions arising out of the March 31, 2013, incident in which Bigge is also a party.

         Entergy further stated that it objected to "Request for Production No. 63" "to the extent that it [sought] information protected by the attorney-client privilege or attorney work product privilege."

         Bigge filed a motion to compel Entergy to respond to the interrogatories and requests for production on December 18, 2014. Bigge argued, inter alia, that Entergy did not "respond to discovery as ordered"; rather, it "provided 117 pages of non-responsive answers and objections." Shortly thereafter, on January 20, 2015, Francis filed a "motion in support" of Bigge's motion to compel, requesting that the circuit court grant Bigge's motion. Entergy responded to Francis's motion, asserting that it should be denied because the motion to compel was without merit, and, in any event, Francis did not have standing to join the motion to compel because he was not a "discovering party" under Ark. R. Civ. P. 37(a) (2017).

         Approximately eighteen months later, on or about October 16, 2016, Entergy provided supplemental responses and objections to the interrogatories and requests for production, including several thousand more documents. Entergy's responses to "Interrogatory No. 21, " "Request for Production No. 9, " and "Request for Production No. 63" did not materially change, and to that point, it had produced only a heavily redacted version of the first root-cause evaluation.[2] Consequently, Bigge filed a supplement to its motion to compel on January 3, 2017, in which it argued that Entergy should be compelled to produce "documents it has in its possession related to . . . pre-stator drop risk assessments and the Stator Drop Root Cause Evaluation records."

         The root-cause evaluations came into sharper focus during a series of events that followed the filing of Bigge's supplemental motion to compel. First, on February 2, 2017, as a court-ordered mediation approached, Francis's counsel wrote a letter to the circuit court, apparently in response to a letter he received from the circuit court on January 31, 2017. Francis's counsel wrote, in pertinent part, that "Ronnie Francis requests the Court rule one document be produced before the Court-ordered mediation" and explained that

[t]he Nuclear Regulatory Commission (NRC) caused Entergy to prepare a Stator Drop Root-Cause Evaluation. Entergy did so. Bigge served Entergy with interrogatories and requests for production to produce the Stator Drop Root-Cause Evaluation. Entergy objected and produced the 190-page document with approximately 160 pages of the document redacted. . ...

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