STATE OF ARKANSAS COMPENDIUM OF LAW

1)Contracts. No contract action to recover damages caused by anydeficiency in the design, planning, supervision, or observation ofconstruction or the construction or repair of any improvement to realproperty or for injury to real or personal property caused by suchdeficiency, can be brought more than five (5) years after substantialcompletion of the improvement. ARK. CODE ANN. § 16-56-112(a)(2008).2)Personal injury and wrongful death. No action for personal injuryor wrongful death caused by any deficiency in the design, planning,supervision, or observation of construction or the construction andrepairing of any improvement to real property shall be brought againstany person performing or furnishing the design, planning, supervision,or observation of construction or the construction and repair of theimprovement more than four (4) years after substantial completion ofthe improvement. ARK. CODE ANN. § 16-56-112(b)(1) (2008).If the injury occurred during the third year after the substantialcompletion of the project, an action in tort or contract to recoverdamages for the injury or wrongful death may be brought within one(1) year after the date on which injury occurred, irrespective of thedate of death, but cannot be brought more than five (5) years after thesubstantial completion of construction of such improvement. ARK.CODE ANN. § 16-56-112(b)(2) (2008).B)Wage recovery. Any action to recover wages and liquidated damages based onan employer’s discrimination in the payment of wages between the sexes must becommenced within two (2) years after the cause of action accrues. ARK. CODEANN. § 11-4-611(c) (2008).C)Employment discrimination. Any action based on employment discriminationof the Arkansas Civil Rights Act shall be brought within one (1) year after thealleged employment discrimination occurred or within ninety (90) days of receiptof a “Right to Sue” letter or a notice of “Determination” from the United StatesEqual Employment Opportunity commission concerning the alleged unlawfulemployment practice, whichever is later. ARK. CODE ANN. § 16-123-107(c)(3)(2008).D)Workers’ compensation death claim. A worker’s compensation claim forcompensation on account of death shall be barred unless filed with the ArkansasWorker’s Compensation Commission within two (2) years of the date of thedeath. ARK. CODE ANN. § 11-9-702(a)(3) (2008).E)Workers’ compensation disability claim. A worker’s compensation claim forcompensation for disability on account of an injury other than an occupationaldisease and occupational infection is barred unless filed with the Arkansas6

Worker’s Compensation Commission with two (2) years from the date of thecompensable injury. Additionally, a victim’s claim is barred if he receives nomedical treatment during this time. ARK. CODE ANN. § 11-9-702(a)(1) (2008).F)Product liability. All product liability actions shall be commenced within three(3) years after the date on which the death, injury, or damage complained ofoccurs. ARK. CODE ANN. § 16-116-103 (2008).G)Wrongful death. All actions for wrongful death, except for those caused bymedical negligence, must be commenced within three (3) years after the death ofthe person alleged to have been wrongfully killed. ARK. CODE ANN. § 16-62102(c).Venue RulesA)Real property. Actions for the recovery of real property, the partition of realproperty, the sale of real property under a mortgage, lien, or other encumbrance orcharge, and an injury to real property must be brought in the county in which thesubject of the action, or some part thereof, is situated. ARK. CODE ANN. § 16-60101 (2008).B)County in which cause arose. Under ARK. CODE ANN. § 16-60-102 (2008),actions for the following causes must be brought in the county where the cause, orsome part of it, arose:C)1)An action for the recovery of a fine, penalty, or forfeiture imposed by astatute, except that where the offense for which the claim is made wascommitted on a watercourse or road which is the boundary of two (2)counties, the action may be brought in either of them;2)An action against a public officer for an act done by him or her in virtue orunder color of his or her office, or for a neglect of official duty; and3)An action upon the official bond of a public officer, except as provided in§§ 16-106-101 and 16-106-104.Pulaski County. Under ARK. CODE ANN. § 16-60-103 (2008), the followingactions must be brought in Pulaski County:1)Civil action on state’s behalf. All civil actions in behalf of the state, orwhich may be brought in the name of the state, or in which the state has orclaims an interest, except as provided in § 16-106-101;2)State officials on state’s behalf. All actions brought by state boards, statecommissioners, or state officers in their official capacity, or on behalf ofthe state, except as provided in § 16-106-101;7

3)Against the state. All actions against the state and all actions againststate boards, state commissioners, or state officers on account of theirofficial acts, except that if an action could otherwise be brought in anothercounty or counties under the venue laws of this state, as provided in § 1660-101 et seq., then the action may be brought either in Pulaski County orthe other county or counties; and4)Other actions. All other actions required by law to be brought in PulaskiCounty.D)Against turnpike road company. An action against a turnpike road companymay be brought in any county in which any part of the road of the defendant lies.ARK. CODE ANN. § 16-60-107 (2008).E)Against non-resident contractor. Contract actions by a resident subcontractor,supplier, or materialman against a prime contractor or subcontractor who is anonresident of this state or who is a foreign corporation may be brought in thecounty in which the plaintiff resided at the time the cause of action arose. ARK.CODE ANN. § 16-60-114 (2008).F)Against surety. An action brought in this state by or on behalf of an insured orbeneficiary against a domestic or foreign surety on a contractor's payment orperformance bond may be brought in the county in which the loss occurred, of theinsured's residence at the time of loss, or of the beneficiary's residence at the timeof loss. ARK. CODE ANN. § 16-60-115 (2008).G)Medical injury against medical provider. Any action for medical injurybrought under ARK. CODE ANN. § 16-114-201, et seq., against a medical careprovider shall be filed in the county in which the alleged act or omission occurred.ARK. CODE ANN. § 16-55-213(e) (2008).H)Other actions. All remaining civil actions must be brought in the county inwhich a substantial part of the events or omissions giving rise to the claimoccurred, the county in which an individual defendant resided, or the county inwhich the plaintiff resided. If the plaintiff or defendant is an entity other than anindividual, then the action may be brought in the county where the entity had itsprincipal office in this state at the time of the accrual of the cause of action. ARK.CODE ANN. § 16-55-213(a) (2008).DISCOVERYElectronic Discovery RulesElectronic discovery relates to the discovery of electronically-stored information. TheArkansas Rules of Civil Procedure that govern discovery do not distinguish between8

electronic discovery and paper discovery. Although issues regarding electronic discoveryhave been addressed slowly through the rulemaking process in Arkansas, the ArkansasSupreme Court seems aware of the problem and recently approved amendments to Rule26(b) of the Arkansas Rules of Civil Procedure that both addresses and creates aprocedure to combat the risk associated with inadvertent disclosures in electronicdiscovery.If an inadvertent disclosure of privileged information takes place, the producing partymust notify the receiving party. The receiving party must then return the privilegedinformation. Courts can determine what is and what is not privileged. ARK. R. CIV. P.26(b)(5) (2008).Expert WitnessesDiscovery of facts known and opinions held by expert witnesses is governed by ArkansasRules of Civil Procedure 26(b)(4) and 35(b) (2008). The rules limit discovery to only“facts known and opinions held by experts” that are “acquired or developed inanticipation of litigation or for trial.” Rule 26(b)(4) distinguishes between two types ofexperts: testifying and non-testifying experts.A)Information from experts. Rule 26(b)(4)(A) provides that a party seekingdiscovery may obtain information from experts expected to testify at trial intwo ways: interrogatories and depositions.1) Interrogatories. The party seeking discovery may through interrogatoriesrequire the opposing party to:(a)(b)(c)Identify each expert the party intends to call as a witness attrial;State the subject matter on which the expert is expected totestify; andState the substance of the facts and opinions to which theexpert is expected to testify and a summary of the groundsfor each opinion. ARK. R. CIV. P. 26(b)(4)(A)(i).2) Depositions. The party seeking discovery may depose any personidentified as an expert expected to testify at trial.(a)B)Rule 26(b)(4)(C)(i) requires that, unless manifest injusticewould result, the party seeking to depose a person identifiedas an expert expected to testify at trial shall pay the expert areasonable fee for time spent in responding to the discovery.Expert opinions. Rule 26(b)(4)(B) and 35(b) governs discovery of factsknown and opinions held by experts that are retained or specially employed by9

another party in anticipation of litigation or preparation of trial but who is notexpected to be called as a witness at trial.1)Applicability. The facts known and opinions held by these expertsmay not be discovered unless:(a)(b)2)C)Under Rule 26(b)(4)(B), there are exceptional circumstancesunder which it is impractical for the party seeking discoveryto obtain facts or opinions on the same subject by anothermeans; orUnder Rule 35(b), the facts known and opinions held by suchexperts deal with a physical or psychological examination ofa party whose physical or mental condition is in controversy.Fees. Rule 26(b)(4)(C)(ii) requires that, unless manifest injusticewould result, the party seeking discovery from a non-testifying expertshall pay the other party a fair portion of the fees and expensesreasonably incurred by the latter party obtaining facts and opinionsfrom the expert.Rebuttal witnesses. Although Rule 26(b)(4) applies to discovery of factsknown and opinions held by rebuttal expert witnesses, rebuttal expertwitnesses do not always have to be disclosed as experts. When rebuttal expertwitnesses are not disclosed, it is within the discretion of the trial court to allowrebuttal expert witnesses to testify because ARK. R. CIV. P. 26(e) governs aparty’s duty to supplement previously-answered discovery requests. A partyis under a duty to seasonably amend prior responses to discovery, includingthe subject matter and substance of any expert witness’s testimony, when heknows that the response, though correct when made, is no longer true and thecircumstances are such that a failure to amend the response is in substance aknowing concealment. Phillips v. McAuley, 297 Ark. 563, 564-66, 764S.W.2d 424, 424-26 (1989).Non-Party Discovery/SubpoenasA)The issuance of subpoenas is governed by ARK. R. CIV. P. 45 (2008).Subpoenas may be issued by the clerk of the court or an attorney of recordwho is admitted to practice in Arkansas. Rule 45(a). The issuance of asubpoena commands the non-party to appear and, if ordered, to producedocuments or other tangible items within the scope of the matter at a specifiedtime and place. Rule 45(b). When a subpoena is issued, notice must be sentto all parties to the action. A subpoena is not required for parties to an actionbut may be desired because of the contempt sanction for noncompliance.Rule 45(g).10

B)Distance limitations. Pursuant to Rule 45(e), a non-party witness may not berequired to attend a deposition that is more than one hundred miles away fromwhere he or she resides, is employed, or transacts business in person, unlessthe court otherwise orders another convenient place.C)Service. Service of subpoenas is governed by Rule 45(c) and may beaccomplished in two fashions. First, the subpoena may be served personallyon the non-party witness by the sheriff of the county where is service is made,the sheriff’s deputy, or any person not a party and at least eighteen years ofage. Second, the attorney of record may serve the subpoena on the non-partywitness by mail if a return receipt is requested and delivery is restricted to theaddressee or agent of the addressee.D)Witness fee. Subpoenas must be served at least five business days prior to thedate of deposition and must be accompanied by the tender of a witness fee tothe non-party witness. Rule 45(e). Rule 45(e) provides that the witness fee isto be calculated at the rate of 30 for attendance and .25 per mile for travelfrom the non-party witness’s residence to the place where the deposition is tobe taken. No witness fee is necessary if a party to the litigation is served witha subpoena.E)Official subpoena form. The Arkansas Supreme Court has issued an officialsubpoena form for civil actions, including probate and juvenile matters.Although the official subpoena form is not mandatory, the subpoena mustcontain all the information called for by the form. In re Arkansas Rules ofCivil Procedure, 340 Ark. Appx. 731, 733 (2000).F)Subpoenas duces tecum. Rule 45(b) governs subpoenas to producedocuments or other tangible items, which are commonly called subpoenasduces tecum. Subpoenas duces tecum must be issued in connection with adeposition; they are the only method of obtaining documents or other tangibleitems from a non-party witness. The non-party witness may object within tendays after service of the subpoena or, if service is made less than ten daysbefore the date specified for the deposition, at any time on or before that date.If an objection is made, the non-party witness is not required to provide therequested documents unless ordered by the court. The party serving thesubpoena may by motion request such an order, with notice to the non-partywitness, at any time before or during the deposition. If this occurs, the nonparty witness may forego further objections and seek a protective order.G)Contempt. Rule 45(g) provides that, when a party or non-party witness failsto attend or produce documents in obedience to any subpoena or intentionallyevades the service of a subpoena by concealment or otherwise, the court mayissue a warrant for arresting and bringing the witness before the court to givetestimony and answer for the contempt.11

PrivilegesAs ARK. R. CIV. P. 26 provides, privileged matters are not discoverable and are notsubject to disclosure. An attorney’s duty to protect client communications andinformation can be found in three bodies of law: the attorney-client privilege, theattorney work-product doctrine, and client confidentiality.A)Attorney-client privilege. The attorney-client privilege is governed by ARK.R. EVID. 502. The attorney-client privilege is an evidentiary privilege thatprovides protection to communications between a client and his or herattorney. The client is the one who is given the privilege of refusing todisclose confidential communications, and while the attorney may claim theprivilege, he can only do so on behalf of the client. Sikes v. Seger, 266 Ark.654, 665, 587 S.W.2d 554, 559 (1979). The purpose of the attorney-clientprivilege is to promote full and frank communication between attorneys andclients, and that, in turn, promotes the observance of law and administration ofjustice. Holt v. McCastlain, 357 Ark. 455, 465-66, 182 S.W.3d 112, 119(2004).1)B)Applicability. Rule 502 provides that a communication is confidentialand privileged if the communication is (1) made by the client orclient’s representative to the client’s attorney or attorney’srepresentative, (2) made by the attorney or the attorney’srepresentative to the client or the client’s representative, (3) notintended to be disclosed to third parties other than the client, attorney,or either’s representative, and (4) made in furtherance of the renditionof professional legal services to the client. The attorney-clientprivilege does not extend to communications between an attorney andthird parties in the course of the attorney’s representation of his or herclient. See Arkansas Nat. Bank v. Cleburne County Bank, 258 Ark.329, 331-32, 525 S.W.2d 82, 84-85 (1975). Cases holding certainstatements to be protected include: Courteau v. St. Paul Fire & MarineIns. Co., 307 Ark. 513, 515-18, 821 S.W.2d 45, 46-48 (1991) (hospitalemployees and physicians were client of hospital’s insurer’s attorney,so that statements made to attorney were covered by attorney-clientprivilege); McCrory v. Johnson, 296 Ark. 231, 246, 755 S.W.2d 566,572 (1988) (attorney’s advice to landlord’s agent not to take tenant’sproperty was protected under attorney-client privilege); Byrd v. State,326 Ark. 10, 14-15, 929 S.W.2d 151, 153-54 (1996) (letters andtelephone conversation between attorney and attorney’s secretary withclient were privileged).Attorney work product. ARK. R. CIV. P. 26(b)(3) governs the attorney workproduct doctrine and is a verbatim recount of its Federal counterpart.Although codified in Rule 26(b)(3), the doctrine was first recognized inHickman v. Taylor, 329 U.S. 495, 502 (1947). The doctrine protects two12

categories of attorney work product when it is prepared with an eye towardlitigation. These categories are commonly referred to as “ordinary” workproduct and “opinion” work product. Ordinary work product consists ofphotographs, witness statements, and other factual background and isdiscoverable if the party seeking discovery shows a substantial need for thediscovery and an undue hardship in gathering the equivalent informationthemselves. Opinion work product is not discoverable and consists of anattorney’s mental impressions, conclusions, opinions, or legal theoriesconcerning the litigation. See Parker v. Southern Farm Bureau Cas. Ins. Co.,326 Ark. 1073, 1082-83, 935 S.W.2d 556, 560-61 (1996); Holt v. McCastlain,357 Ark. 455, 468, 182 S.W.3d 112, 120-21 (2004).C)Client confidentiality. Under ARK. R. P. C. 1.6(a), an attorney is barred fromrevealing client confidences without the client’s informed consent, even afterthe termination of the attorney-client relationship. However, an attorney maybreak these confidences in certain circumstances governed by Rule 1.6(b).These circumstances include when an attorney reasonably believes revealingclient confidences: (1) may prevent the commission of a criminal act, (2) mayprevent, mitigate, or rectify the client’s commission of fraud that is reasonablycertain to result in injury (financial or property) of another and in furtheranceof which the client has used or is using the attorney’s services, (3) secureslegal advice about the attorney’s compliance with the Arkansas Rules ofProfessional Conduct, (4) establishes a claim or defense on behalf of theattorney in a controversy between the attorney and the client or establishes adefense to a criminal charge or civil claim against the attorney based uponconduct in which the client was involved, and (5) complies with other law or acourt order.D)Other Privileges. The Arkansas Rules of Evidence, ARK. CODE ANN. § 1641-101, and other scattered Arkansas code sections and administrator ordersgovern other forms of privileged communications. The relevant privilegesare:1) ARK. R. EVID. 503: Physician, psychotherapist, chiropractor-patientprivilege.2) ARK. R. EVID. 504: Husband-wife privilege.3) ARK. R.

4 Watkins, 2 Arkansas Practice Series: Civil Practice and Procedure § 17.2, 365 (4th ed. 2006) D) Fraud.The statute of limitations on actions for fraud is three (3) years. See ARK. CODE ANN. § 4-4-111 (2008). E) Sheriffs and coroners. All actions against sheriffs and coroners for any liability