North Carolina Business Litigation Report

UPS Capital Business Credit (Inc.) v. Royal American Company, LLC, January 31, 2007 (Tennille)(unpublished)

This opinion dealt with subpoenas to a party's attorney and its accounting firm.  The Court quashed the subpoena to the law firm (Gray Layton), holding:

Service of a subpoena duces tecum on a law firm seeking documents from the firm’s client files clearly raises worrisome issues of attorney-client and work product privilege. The attorney-client privilege protects confidential communications between attorney and client “made on the faith of the relationship between them.” Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 129 (4th ed. 1993). The work product privilege prevents disclosure of the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the material is sought.” N.C. R. Civ. P. 26(b)(3). The Court may quash a subpoena if it “requires disclosure of privileged or other protected matter.” N.C. R. Civ. P. 45(c)(3)(b), (c)(5). Gray Layton’s files may well contain materials protected by one or both of these privileges.

 The Court enforced the subpoena to the accounting firm, however, holding:

In 2001, the Court of Appeals restated that “[a]n accountant-client privilege is not recognized in North Carolina.” Miles v. Martin, 147 N.C. App. 255, 261, 555 S.E.2d 361, 365 (2001) (citing State v. Agnew, 294 N.C. 382, 394, 241 S.E.2d 684, 692 (1978)). In the absence of such a privilege, the Court finds no reason to quash the subpoena served on McCannon Rogers.

Full Opinion

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Mack Sperling
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