Cite as 2023 Ark. App. 176

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-21-371

GERALD PEVEY

APPELLANT

V.

BAY CITIES CONTAINER 

CORPORATION

APPELLEE

Opinion Delivered March 29, 2023

APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT 

[NO. 04CV-19-2135]

HONORABLE DOUG SCHRANTZ, 

JUDGE

AFFIRMED

CINDY GRACE THYER, Judge

Gerald Pevey has filed this interlocutory appeal pursuant to Rule 2(f) of the Arkansas 

Rules of Appellate Procedure–Civil from the Benton County Circuit Court’s order requiring 

him to respond to the discovery requests of Bay Cities Container Corporation despite his 

claims of privilege and work product.1 Because the circuit court did not abuse its discretion, 

we affirm.

 

1Rule 2(f)(1) provides that the Arkansas Supreme Court “may, in its discretion, permit 

an appeal from an order denying a motion for a protective order pursuant to Rule of Civil 

Procedure 26(c), an order pursuant to Rule of Civil Procedure 37 compelling production of 

discovery, or an order denying a motion to quash production of materials pursuant to Rule 

45 when the defense to production is any privilege recognized by Arkansas law or the 

opinion-work-product protection.” On September 9, 2021, the Arkansas Supreme Court 

granted the request to file an interlocutory appeal.
2

While the issues in this case may be straightforward, the underlying dispute between 

the parties is fairly complex and has been ongoing for almost four years necessitating a 

somewhat lengthy recitation of the facts. Bay Cities Container Corporation (Bay Cities) is a

business based in Bentonville, Arkansas, that focuses on retail-packaging and display-design 

services for its clients. As part of its business, Bay Cities receives confidential business 

information from its clients. In order to safeguard such information, Bay Cities requires its 

employees to agree to and abide by its written policies respecting confidential information. 

Gerald Pevey was employed by Bay Cities from July 2014 until March 2019. As part 

of his employment, Pevey signed (1) a confidentiality and nonsolicitation agreement and (2) 

a trade-secret and confidential-company-information acknowledgement.2 The confidentiality 

and nonsolicitation agreements prohibited him from soliciting Bay Cities’ customers or 

employees for one year upon the termination of his employment with Bay Cities. It also 

prohibited him from removing any confidential information or company property from Bay 

Cities’ premises without express written permission; and it required that he promptly return 

any confidential information or any other property in his possession upon termination of 

the employment relationship. The trade-secret acknowledgment prohibited Pevey from 

duplicating, replicating, or communicating any confidential information or trade secrets 

without prior written permission and provided a laundry list of items it deemed to be 

“confidential and proprietary trade secrets.” 

 

2

Pevey signed two separate versions of these agreements during his employment, once 

in 2014 and again in 2017.
3

Pevey left his employment with Bay Cities in March 2019 and immediately began 

work for Bay Cities’ competitor, Vanguard Packaging (Vanguard). On March 25, 2019, Bay 

Cities’ counsel sent Pevey a cease-and-desist letter claiming that Pevey had been contacting 

Bay Cities’ customers on behalf of Vanguard. On April 3, 2019, counsel again sent a letter 

to Pevey advising him that Bay Cities had evidence that he had retained certain property 

containing proprietary and confidential information belonging to Bay Cities in violation of 

his confidentiality agreement. Bay Cities demanded the immediate return of those items 

listed in the letter as well as any hard copies of such information in his possession. Bay Cities 

also demanded that Pevey completely delete all digital copies of the items and identify any 

and all persons with whom he may have shared them. Finally, Bay Cities demanded that 

Pevey make available to it any computers or data-storage devices once deletion had occurred 

so that Bay Cities could confirm their deletion.

In response, Pevey’s counsel informed Bay Cities that Pevey had notified a handful 

of his work contacts informing them of his departure from Bay Cities and his recent 

employment with Vanguard but denied attempting to solicit any of Bay Cities’ customers or 

clients. He further denied that any of his communications contained any confidential, 

proprietary, or otherwise sensitive information related to Bay Cities. 

As for the alleged confidential and/or proprietary information believed to be in his 

possession, Pevey claimed that those items could possibly be located in emails associated with 

his Gmail account and on two hard drives he had in his possession. Pevey asserted that the 

emails had never been printed or shared in either hard-copy or electronic form with any 
4

third party. As for the two hard drives, one contained a “backup” of his work computer and 

contained Bay Cities’ work-related information. He denied having accessed that hard drive 

since his termination and claimed to have placed it in his counsel’s possession. Pevey also 

claimed that he did not know what was contained on the other hard drive and was unsure 

if it contained Bay Cities’ work-related information. He declared that he was willing to return 

any of Bay Cities’ information that may be contained on either hard drive.

Thereafter, the parties entered into protracted negotiations into the timing, scope, 

and breadth of the review of the search for Bay Cities’ information on Pevey’s accounts and 

devices. Bay Cities identified multiple personal devices and accounts it wanted to inspect to 

determine whether they contained Bay Cities’ information. In addition, Bay Cities claimed 

that its inspection of Pevey’s work computer had indicated that data was transferred to the 

three USB drives in the last three months. 

Pevey objected to Bay Cities’ access to his personal information and photos as well as 

information related to his work at Vanguard. He also objected to the inspections of some of 

his personal accounts and further claimed he did not know where other devices identified 

by Bay Cities—more specifically, three USB devices—were located. 

On August 23, 2019, Bay Cities filed suit against Pevey alleging breach of contract 

and violation of the Computer Fraud and Abuse Act and seeking a permanent injunction 

and damages. Pevey answered, generally denying the allegations in the complaint. 

Sometime thereafter, the parties began engaging in discovery. In June 2020, the 

parties executed an agreed protective order that divided the protected electronic information 
5

into two categories: (1) confidential informatoin and (2) highly confidential—attorneys’ eyes 

only (AEO) information; and established parameters surrounding the disclosure of each 

type. It further provided that such information could not be disclosed to an expert witness 

or consultant until the expert or consultant completed a certificate of acknowledgment 

subjecting him or her to the jurisdiction of the court and agreeing to be bound by the 

protective order. 

As part of its discovery, Bay Cities propounded its first set of interrogatories and 

requests for production. Pevey objected, in part, on the basis of attorney work product and 

attorney-client privilege. This resulted in Bay Cities’ filing its first motion to compel. 

The parties then drafted a protocol for the forensic imaging and analysis of the 

computer-related equipment believed to contain Bay Cities’ electronic files.3 The protocol 

was designed to allow Technology Concepts & Design, Inc. (TCDI), to copy and complete a 

forensic analysis of specified personal devices and accounts belonging to Pevey. As part of 

the agreed protocol, TCDI would be allowed to analyze Pevey’s personal cell phone and 

computing devices but would be prohibited from imaging his Vanguard email. Pevey further 

agreed to provide TCDI with the login IDs, passwords, and other information necessary to 

access certain identified accounts. 

 

3The parties seemingly settled their protocol issues at a March 2021 hearing; however, 

Pevey later objected to the proposed draft submitted by Bay Cities. The court ultimately 

overruled Pevey’s objections and entered the proposed order previously submitted by Bay 

Cities in April 2021. 
6

While the details of the protocol were being finalized, Bay Cities discovered that Pevey

had hired a forensic examiner to image and copy the devices that contained its confidential 

information. On March 23, 2021, Bay Cities sent a letter expressing concerns regarding the 

confidential designation of the imaged files from the devices, requesting information about 

the imaging work, and seeking confirmation that counsel’s review of those items had been 

conducted on an AEO basis. Bay Cities requested that Pevey fully describe the scope and 

extent of the copying and review of the designated devices. Pevey did not respond. In a letter 

dated March 31, Bay Cities specifically designated the copies of those devices as AEO and 

requested confirmation that Pevey had complied with that designation. Counsel also 

enclosed a second set of interrogatories and requests for production to determine how the 

information was handled. 

On April 12, 2021, Bay Cities filed a second motion to compel, claiming it had yet 

to receive confirmation that Pevey was treating the information as AEO information and

that it had not been advised how the information had been handled or to whom it had been 

disseminated. Pevey responded to the motion to compel, maintaining that the motion to 

compel was unnecessary because the information was governed by the protocol order. He 

also asserted that the bulk of the requested information was barred by the attorney-client 

privilege, attorney work product, and the non-testifying-expert privilege. 

In addition to his response to the motion to compel, Pevey filed a motion to strike, 

or alternatively, a motion for a protective order. Pevey claimed that Bay Cities’ second set of 

interrogatories and requests for production had sought information related to his attorneys’
7

legal strategies, including counsel’s work product and information regarding his 

consultations with his non-testifying expert witness. In his motion, Pevey noted that Bay 

Cities had agreed in an August 31, 2020 letter that it had no issue with him hiring his own 

imaging company to conduct an additional independent review. 

That same day, Pevey also filed an acknowledgment of AEO information under the 

agreed protective order. In the acknowledgment, Pevey disputed Bay Cities’ right to 

information that falls under the attorney-client privilege, the non-testifying-witness privilege, 

and attorney work product. 

In response to Pevey’s motion to strike, Bay Cities argued that the non-testifyingexpert privilege did not apply because exceptional circumstances required the production of 

the requested information. Bay Cities claimed that the only way Bay Cities can determine 

what information was disseminated by Pevey and to whom is by seeking this information 

through discovery. Bay Cities also argued that the attorney-client privilege did not apply 

because Bay Cities was not seeking confidential communications and because Pevey had 

disclosed such information to Vanguard. Finally, Bay Cities argued that attorney-workproduct objection was inapplicable because the work-product designation only protects 

documents created by or for counsel and does not protect the facts therein; nor does the 

requested information threaten the mental impressions, conclusions, opinions, or legal 

theories of Pevey’s attorney. It further argued that, even if the documents were deemed to be 

work product, they were still discoverable because Bay Cities has a substantial need for the 
8

materials, and it is unable to obtain the substantial equivalent of those materials without 

undue hardship. 

Pevey replied, arguing that the information sought had lost any commercial value, if 

any such value ever existed; that experts were permitted under the protective order; that Bay 

Cities’ counsel had agreed he could retain his own forensic expert, and he had done so; and 

that destruction of information was addressed in the protective order. Finally, he denied that 

he had provided any of the storage devices to Vanguard. 

A hearing was held on the motions on May 27, 2021. Pevey’s counsel argued that the 

protective order did not require any party to notify the other party when information has 

been reviewed; nor did it require any party to designate who was reviewing it. In fact, Bay 

Cities had even agreed that Pevey could hire his own expert. Pevey argued that it was 

counsel’s responsibility to ensure that the protective order was followed, and that if anybody 

had access to the information, they were required to sign the acknowledgement form 

agreeing to abide by the terms of the protective order. Pevey’s non-testifying expert witness 

had done so. Thus, Pevey claimed he had done everything he was required to do under the 

protective order.

Counsel for Bay Cities stated that it only sought to determine why the material was 

imaged, how it was imaged, who had access to the information, and where that information 

was sent. Counsel agreed that if any of the documents were subject to the attorney-client 

privilege, those could be withheld. Bay Cities noted that this information was reviewed and 

disseminated prior to the AEO designation and before the protocol order was entered. 
9

After reviewing the evidence and hearing the arguments of counsel, the court denied 

Pevey’s motion to strike and granted Bay Cities’ motion to compel, but only to the extent 

the information was not covered by attorney-client privilege. First, the court indicated that 

because there had been so many conversations between the parties that the court was not 

privy to, it was not going to assign any weight or credibility to the comments made in Bay 

Cities’ August 31 letter regarding Pevey’s ability to hire his own expert. The court then stated 

that it believed the information requested was limited to identifying who had access to the 

electronic data and what data had been disseminated. The court noted that the information 

in question belonged to Bay Cities and that it was entitled to know who had had access to 

that information. With regard to the nontestifying expert, the court excepted 

communications between counsel and the expert but ordered disclosure of the other items. 

On June 18, 2021, Pevey requested that the court make factual findings and address 

the factors set forth in Rule 26(f) of the Arkansas Rules of Civil Procedure. On July 21, the 

court entered its written order denying Pevey’s motion to strike and granting Bay Cities’ 

motion to compel. The order set forth the following findings pursuant to Rule 26(f):

In accordance with Ark. R. Civ. P. 26(f), the Court finds that the information and 

production sought by Bay Cities and as directed by the Court in the bullet points 

above, are not privileged or subject to work product or other protections. The 

compelled responses will not cause irreparable injury to Pevey as the information 

requested is not protected from disclosure. The information sought by Bay Cities 

specifically relates to the results of Pevey’s forensic imaging of materials that Pevey 

admitted to copying and admitted to contain Bay Cities’ proprietary information. 

Specifically, Bay Cities is entitled to obtain information on where the files are, who 

has looked at them, when were they accessed, what files were copied, and how the 

files were accessed. Therefore, the Court finds that the requests related to these copies 

and the access to these copies—as limited by the Court’s specific rulings on each 
10

Interrogatory and Request—do not seek privileged information or materials from 

Pevey. Pevey’s conclusory and blanket claim of privilege regarding each of the 

Discovery Requests is not well taken. 

The next day, Pevey moved to vacate and amend the order, arguing that he had not 

had the opportunity to comment or object to the provisions of the order before it was filed. 

Pevey also requested a stay of the order compelling discovery pending appeal. Both motions 

were denied. 

On September 9, 2021, the supreme court granted Pevey’s petition for an 

interlocutory appeal of the discovery issues. This appeal followed.

The appeal here involves Pevey’s objections to Bay Cities’ second set of discovery 

requests. The challenged interrogatories, in essence, requested (1) the identities of those 

persons or entities that had access to the devices and data at issue; (2) a complete list of all 

electronic devices or data-storage units that have stored any of the imaged or transferred files; 

(3) a complete list of all imaged files accessed or recovered; (3) the substance, type, and date 

of any communication regarding the imaging or review conducted by Pevey or his counsel 

and with whom such communication occurred; (4) a description of the files utilized or 

accessed by Pevey and/or Vanguard; and (5) whether the review of the documents was

conducted on an AEO basis. The contested requests for production sought production of 

copies of everything identified, relied on, and considered in preparing the answers to the 

interrogatories; all imaged files recovered during forensic imaging by Pevey or his counsel; 

any reports, opinions, summaries, correspondence, letters, emails, or other written 

documents of any kind regarding any forensic imaging or accessing conducted by Pevey or
11

his counsel; and all items (including all storage devices) that Pevey identified as having stored 

imaged or transferred files recovered during forensic imaging.

Pevey argues that the foregoing discovery seeks information covered by the nontestifying-expert privilege, the attorney-client privilege, and the exceptions governing attorney 

work product. We disagree and affirm. 

I. Standard of Review

First, Pevey asks this court to utilize a de novo-review standard in analyzing his 

arguments on appeal; however, our standard of review in discovery matters is well settled—

we employ an abuse-of-discretion standard. We have consistently held that a circuit court 

has broad discretion in matters pertaining to discovery, and the exercise of that discretion 

will not be reversed absent an abuse of discretion that is prejudicial to the appealing party.

Gonzales v. Cont’l Cas. Co., 2022 Ark. App. 501, 659 S.W.3d 277; Hardy v. Hardy, 2011 Ark. 

82, 380 S.W.3d 354. This court has described abuse of discretion as a high threshold that 

requires not only error but a ruling made improvidently, thoughtlessly, or without due 

consideration. Gonzales, supra; Rhodes v. Kroger Co., 2019 Ark. 174, 575 S.W.3d 387. Thus, 

the circuit court’s order compelling discovery in this case should not be overturned absent 

an abuse of discretion.

II. Analysis

A. Non-Testifying-Expert Privilege

For Pevey’s first argument, he asserts a claim involving the non-testifying-expert 

privilege. Pevey maintains that the information sought in the foregoing discovery includes 
12

not only a detailed roadmap of the trial preparation performed by his non-testifying expert 

but also the identity of his non-testifying expert. He asserts that Bay Cities is not entitled to 

know either the identity of his non-testifying expert or the scope of his work.

Here, however, it is important to analyze the discovery requests in relation to the 

specific facts of this case. The goal of discovery is to permit a litigant to obtain whatever 

information he or she may need to prepare adequately for issues that may develop without 

imposing an onerous burden on his adversary. Grand Valley Ridge, LLC v. Metro. Nat’l Bank, 

2012 Ark. 121, 388 S.W.3d 24.

Pevey admittedly has in his possession confidential electronic information and data 

that belongs exclusively and solely to Bay Cities. Bay Cities is entitled to know what 

happened to that information while in Pevey’s possession. Bay Cities’ discovery requests are 

designed to discover who had access to that information; to whom, if anyone, Pevey gave 

that information; what information was accessed or disseminated, if any; and when that 

information was accessed or disseminated, if at all. Thus, Bay Cities’ discovery requests are 

specifically designed to illuminate those facts that go to the central issue in this case.

Rule 26(b)(4)(B) of the Arkansas Rules of Civil Procedure provides that a party may 

discover facts known or opinions held by an expert who has been retained by another party 

in anticipation of litigation or preparation for trial, and who is not expected to be called as 

a witness at trial, only upon a showing of exceptional circumstances under which it is 

impractical for that party to obtain the facts or opinions on the same subject by other means.
13

Only Pevey and his counsel know for sure what, if anything, and to whom Pevey had 

disseminated Bay Cities’ information. Pevey and his counsel admittedly allowed a 

nontestifying witness to access that information before the parties entered into an agreed 

protective order. This is information and data exclusively under Pevey’s control. The court 

allowed Bay Cities to obtain that information but expressly excluded any communications

between Pevey’s counsel and staff and the nontestifying expert. Clearly, the circuit court 

exercised its discretion in such a manner as to provide Bay Cities with the necessary 

information regarding the basic facts as to who had access to what information while also 

preventing Bay Cities from obtaining the non-testifying expert’s analysis of such data. This 

was not an abuse of discretion.

As for disclosure of the identity of the non-testifying expert, courts in some 

jurisdictions have held that their versions of Rule 26(b)(4)(B) preclude discovery of the 

identities of non-testifying experts unless discovery of their opinions and knowledge of facts 

is also warranted. Other courts, however, have allowed discovery of experts’ identities 

without a showing of exceptional circumstances. 2 David Newbern, John Watkins & D.P. 

Marshall Jr., Arkansas Civil Practice & Procedure § 21:8 (5th ed. 2011) In this case, it appears 

that exceptional circumstances exist; Bay Cities is entitled to know who has had access to its

confidential information.

B. Attorney-Client Privilege

Pevey next argues that the information requested in the second set of discovery is 

protected from disclosure by the attorney-client privilege. He claims that the attorney-client 
14

privilege extends to counsel’s communications with agents and experts who are retained by 

counsel for the purpose of providing legal advice. Because the scope and size of the forensic 

review as well as the production of information in this case is a “foreign language” to most 

attorneys, he asserts that the nontestifying expert’s assistance was necessary for his attorney 

to provide sound legal advice. As such, the work performed by his nontestifying expert 

should fall within the attorney-client privilege.

Pevey fails to acknowledge, however, that the court excepted all communications 

between Pevey’s counsel and his nontestifying expert; only the underlying facts regarding the 

forensic imaging of the computer data was compelled—that is, which files were accessed, 

where the files are, who looked at them, when they were accessed, and how they were 

accessed. Thus, no attorney-client privileged communications are involved. 

C. Attorney Work Product

For his last argument, Pevey seems to argue that the timing and identification of the 

documents accessed by his counsel and his nontestifying expert constitute work product 

entitled to protection from discovery. Bay Cities argues that the court found that it had a 

substantial need for the documents in preparation for its case and that Rule 26(b)(3) of the 

Arkansas Rules of Civil Procedure allows for the production of work-product information 

“upon a showing that the party seeking discovery has substantial need of the materials in the 

preparation of his case and that he is unable without undue hardship to obtain the 

substantial equivalent of the materials by other means.”
15

Here, the court specifically found the information requested by Bay Cities was not 

obtainable through any other source. As stated before, Bay Cities is entitled to know the 

who, what, when, where, and how these confidential documents were accessed. This 

information is solely within Pevey’s control. Thus, the only way Bay Cities can obtain that 

information is through the discovery process. It should be noted that the circuit court did 

not give Bay Cities carte blanche access to that information—it excluded any attorneyclient/non-testifying-expert communications from its directive. Thus, the circuit court did 

not abuse its discretion in compelling the production of this information. 

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Kelley Law Firm, PLLC, by: Glenn E. Kelley and Caroline W. Kelley, for appellant.

Wright, Lindsey & Jennings LLP, by: N. M. Norton; Gary D. Marts, Jr.; Eric Berger; and 

Meredith Lowry, for appellee.