Cooper Tire & Rubber Co. v. Phillips Cnty. Circuit Court

• Decision Date: 28 April 2011
• Docket Number: No. 10–1074.,10–1074.
• Citation: Cooper Tire & Rubber Co. v. Phillips Cnty. Circuit Court, 2011 Ark. 183, 381 S.W.3d 67 (Ark. 2011)
• Court: Arkansas Supreme Court
• Parties: COOPER TIRE & RUBBER CO., Petitioner v. PHILLIPS COUNTY CIRCUIT COURT, Respondent.

2011 Ark. 183

381 S.W.3d 67

COOPER TIRE & RUBBER CO., Petitioner

v.PHILLIPS COUNTY CIRCUIT COURT, Respondent.

No. 10–1074.

Supreme Court of Arkansas.

April 28, 2011.

Williams & Anderson PLC, Little Rock, by: Philip S. Anderson, Jess Askew III, and Andrew King, for petitioner.

Dustin McDaniel, Att'y Gen., by: Colin R. Jorgensen, Ass't Att'y Gen., for respondent.

David A. Hodges, Little Rock; Allen Law Firm, Little Rock, by: Phillip Allen; Wilson Law Firm, P.A., Helena, by: E. Dion Wilson; and Merkel & Cocke, by: Ted P. Connell, Jr., for real parties in interest.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for amicus curiaeArkansas Trial Lawyers Association.

Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, by: Steven W. Quattlebaum, E.B. Chiles IV, and Everett C. Tucker IV; and Hugh F. Young, Jr., for amicus curiaeThe Product Liability Advisory Council, Inc.

JIM GUNTER, Justice.

In a pending negligence case in Phillips County, the circuit court entered an order compelling PetitionerCooper Tire & Rubber Co. to fully and completely respond to discovery requests made by plaintiffs¹(hereinafter referred to as “Tucker Plaintiffs”) and denying petitioner's two motions for protective order on the basis that it waived any objection to discovery.Petitioner asks this court alternatively for a writ of certiorari, writ of mandamus, writ of prohibition, or other supervisory writ.Because petitioner seeks extraordinary relief, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(3).We grant petitioner a writ of certiorari.

The underlying litigation in this case involves a complaint filed by the Tucker Plaintiffs alleging that a one-car accident that occurred on February 6, 2009, was caused by a defective tire manufactured by petitioner.On May 26, 2010, petitioner filed a Motion for Protective Order Limiting Number of Rule 34Requests to Prevent Excessive and Unduly Burdensome Discovery.Attached to that motion were four sets of requests for production of documents propounded by the Tucker Plaintiffs between April 26, 2010, and May 5, 2010, totaling 467 requests for production in a little over a week.In its Sixth Request for Production, which the Tucker Plaintiffs mailed on April 30, they specifically requested “[a]ll protected or trade secret materials provided in response to request to produce, answers to interrogatories, or protected deposition” from four other cases involving petitioner.In its protective-order motion, petitioner maintained that it had previously responded to fifty-eight individual requests for production from the Tucker Plaintiffs, produced more than 5000 pages of documents, and that many of the documents now requested were objectionable in scope because they were irrelevant.Petitioner maintained that the amount of time and expense to simply respond to the Tucker Plaintiffs' requests would be overly burdensome, not including the extreme cost and burden of a more thorough review of the documents to determine if they contained protected information, such as trade secrets or confidential business information.Petitioner noted in its motion that it was serving on the Tucker Plaintiffs an Initial Response and Objections to the New Requests.Petitioner asked the circuit court to set reasonable limitations on the scope of written discovery, specifically suggesting that no party be allowed to make more than seventy requests for production in the case.Alternatively, petitioner asked that the Tucker Plaintiffs reimburse petitioner for the cost of providing the requested documents because of the substantial expense petitioner would incur in legal fees to review those documents and copy charges to provide them.Petitioner noted that it had sent a good-faith letter to the Tucker Plaintiffs' attorney in an attempt to agree to a reasonable compromise but that opposing counsel's response was that he was “not in a position to do that.”

On June 11, 2010, the Tucker Plaintiffs filed a Motion to Compel and Response to DefendantCooper Tire & Rubber Company's Motion for Protective Order and Its Initial Response and Objections to Plaintiffs' Requests for Production.The Tucker Plaintiffs addressed each of petitioner's objections to discovery, arguing that their requests were not excessive or overly burdensome; that their requests were relevant to the case; and that, although petitioner objected on the basis that many of the requests would include documents containing trade secrets or otherwise confidential information not discoverable without an appropriate protective order, petitioner had not established that proprietary material was contained within the requested documents.

Thereafter, on June 21, 2010, petitioner filed a reply to the Tucker Plaintiffs' response to petitioner's protective-order motion, attaching three additional sets of requests for production received by the Tucker Plaintiffs between May 25, 2010, and June 2, 2010.On June 30, 2010, petitioner filed a response to the motion to compel, asserting that the Tucker Plaintiffs' motion should not be considered until the protective-order motion was addressed, that the Tucker Plaintiffs had not conferred in good faith to resolve the discovery issues, and that the Tucker Plaintiffs had never responded to a ten-month-old offer to enter a protective order to allow for production of confidential documents.Attached to that motion as an exhibit was a letter dated August 20, 2009, from petitioner's attorney to the Tucker Plaintiffs' attorney regarding a proposed protective order to protect any confidential information or trade secrets that petitioner might be required to produce in discovery.

On August 31, 2010, petitioner filed a second Motion for Entry of a Protective Order on the basis that many of the documents that the Tucker Plaintiffs requested contained protected trade secrets.Petitioner noted in the motion that it had raised the issue of a protective order as early as August 2009 with the Tucker Plaintiffs but that it never received any response on the issue until the Tucker Plaintiffs filed their motion to compel.On September 14, 2010, the Tucker Plaintiffs filed a Response to Cooper's Motion for Protective Order, arguing that petitioner failed to establish that a protective order was necessary to protect confidential information or trade secrets.Attached to the response was petitioner's initial response and objections to the Tucker Plaintiffs' seven sets of discovery requested between April 26, 2010, and June 2, 2010.In that initial response and objections, petitioner objected to the 467 additional individual requests made by the Tucker Plaintiffs on the basis that the requests were overly burdensome, excessive, and required the disclosure of proprietary or otherwise confidential information without the benefit of a protective order.

A hearing was held before the circuit court on September 20, 2010, where the parties argued their various positions with regard to the discovery issues.Thereafter, the circuit court entered an order (1) denying both of petitioner's motions for protective order because petitioner failed to preserve its objections to the Tucker Plaintiffs' discovery requests, citing Dunkin v. Citizens Bank of Jonesboro,291 Ark. 588, 727 S.W.2d 138(1987), as authority; and (2) granting the Tucker Plaintiffs' motion to compel on the same ground.

Although petitioner requests several alternative forms of extraordinary relief from this court, we are convinced that a writ of certiorari is the appropriate vehicle.The standard for granting a writ of certiorari is well settled in Arkansas.A writ of certiorari is extraordinary relief, and there are two requirements that must be satisfied in order for this court to grant the writ.Baptist Health v. Circuit Court of Pulaski County,373 Ark. 455, 284 S.W.3d 499(2008).The first requirement is that there can be no other adequate remedy but for the writ of certiorari.Id.Second, a writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record.SeeJordan v. Circuit Court of Lee County,366 Ark. 326, 331, 235 S.W.3d 487, 491(2006)(citingArk. Game & Fish Comm'n v. Herndon,365 Ark. 180, 226 S.W.3d 776(2006)).In addition, this court has held that, in determining the applicability of the writ, we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court's discretionary authority.Jordan,366 Ark. at 331, 235 S.W.3d at 491;see alsoChiodini v. Lock,373 Ark. 88, 281 S.W.3d 728(2008).

This court has, on several occasions, specifically held that a petition for writ of certiorari is not an appropriate remedy when a party seeks to reverse a discovery order.Baptist Health,373 Ark. at 458–59, 284 S.W.3d at 502;see alsoChiodini,373 Ark. at 93, 281 S.W.3d at 732(“Because a trial court's discovery ruling is a matter well within the court's jurisdiction and discretion, a writ of certiorari will not lie to correct any perceived error in the court's ruling.”)(emphasis in original).This court has denied petitions for writs of certiorari even when the alleged discovery violation pertains to material that the petitioning party claims is privileged.SeeArk. State Highway Comm'n v. Ponder,239 Ark. 744, 393 S.W.2d 870(1965).

However, this court has made an exception where the issue was not a “mere” discovery issue but involved another area of law that would be impacted by the resolution of the discovery matter.Ark. Democrat–Gazette, Inc. v. Brantley,359 Ark. 75, 194 S.W.3d 748(2004).The Brantley court held the following:

Traditionally, in addressing exclusive discovery issues, the...