533 S.W.3d 139
Ark. Ct. App.2017Background
- Construction-dispute cross-claims arose among Gerber, CECO, and Alberici; CECO served document requests in 2013 during discovery.
- Gerber initially produced ~2,700 pages on diskettes, later produced tens of thousands more pages across several productions and provided two privilege logs only in 2015–2016.
- CECO identified privileged materials among earlier productions and returned some media; Gerber did not assert privilege in its initial responses and waited years before asserting attorney-client and work-product privileges.
- The circuit court granted two motions to compel, imposed a monetary sanction against Gerber, and found Gerber had failed to timely object to discovery requests.
- Gerber moved for a protective order seeking (1) to withhold unproduced documents listed on its privilege logs and (2) return/destruction of inadvertently produced privileged documents; the court denied relief and Gerber appealed under Rule 2(f).
Issues
| Issue | Plaintiff's Argument (Gerber) | Defendant's Argument (CECO) | Held |
|---|---|---|---|
| Whether Gerber waived privilege as to unproduced documents listed on privilege logs | Late assertion of privilege should not constitute waiver; court should not apply broad-subject-matter waiver | Gerber failed to timely object and thus waived privilege by conduct and repeated productions | Waiver affirmed: court did not apply broad-subject waiver but properly found waiver for untimely assertion and conduct under Dunkin and discovery history |
| Whether CECO must return/destroy inadvertently produced privileged documents | Gerber timely demanded return/destruction and is entitled to protection under Ark. R. Civ. P. 26(b)(5) presumption of nonwaiver | CECO refused; points to Gerber’s lack of reasonable precautions and prolonged failure to assert privilege | Affirmed: court properly declined to order return/destruction, finding waiver based on lack of reasonable precautions and discovery conduct |
Key Cases Cited
- Dunkin v. Citizens Bank of Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987) (failure to timely object to discovery waives objections including privilege)
- Nat’l Enters., Inc. v. Lake Hamilton Resort, Inc., 355 Ark. 578, 142 S.W.3d 608 (2004) (standard of review and scope of court discretion on protective orders)
- In Re Ark. Rules of Civil Procedure, Appellate Procedure, 2012 Ark. 236 (2012) (Ark. R. App. P. 2(f) interlocutory appeals from discovery orders involving privilege)