The Court granted a Motion for Protective Order yesterday in Delhaize America, Inc. v. Hinton. There’s nothing particularly remarkable about the entry of a Protective Order, which usually happens by consent, but this Protective Order may set some precedent in future Business Court cases.
The case involves the type of tax refund litigation which is within the Business Court’s mandatory jurisdiction under N.C. Gen. Stat. § 7A-45.4(a)(7). The Order was entered against the North Carolina Department of Revenue over its objection.
The Department of Revenue had sought extensive information regarding Delhaize’s business activities which Delhaize offered to produce subject to a Protective Order.
The Department, in its Brief, raised a series of objections to the information being kept confidential. It said that:
Delhaize was "attempt[ing] to cloak its tax refund litigation in a veil of secrecy;"
A Protective Order would "violate the public’s right of access [to the courts] under state and federal law," including the First Amendment;
The North Carolina Public Records Act compelled public disclosure of the information requested; and
Delhaize’s request for a refund operated as a waiver of its rights under the North Carolina "Taxpayer Bill of Rights."
All of these objections were effectively rejected by the Court’s entry of the Order. The Order itself contains no discussion of the basis for the ruling and is a fairly standard Protective Order.
Delhaize’s Brief, setting out the reasons why a Protective Order was appropriate, is here. (My partners Reid Phillips, Bill McNairy, and Andy Haile represent Delhaize in this case).