Three interesting discovery issues were resolved last week by Judge Bledsoe’s Order in Gay v. Peoples Bank. First, can you obtain in discovery in a class action the fee arrangement between the plaintiff and his lawyers? Second, can you obtain (in any kind of case) a protective order against the deposition of your client’s top executives? And third, can you refuse to respond to an interrogatory asking you to identify the witnesses you intend to call at trial?
The answers to those very questions are contained in the Order.
Discoverability Of Engagement Letters In Class Actions
Gay is a purported class action against Peoples Bank regarding overdraft charges. Peoples asked Gay to produce "letters or other forms of agreement concerning the terms of [Plaintiff’s] representation by [his] lawyers in the case." Order ¶2.
Gay responded that the engagement letter was privileged and not relevant to the subject matter of the litigation.
Judge Bledsoe observed that this was a case of first impression in North Carolina, stating that "[t]he North Carolina appellate courts do not appear to have addressed the production of an attorney fee agreement in a purported class action." Order ¶13.
But multiple federal courts have ruled on this issue and have generally held that fee agreements are not relevant to the issue of class certification. See, e.g., Stanich v. Travelers Indem. Co., 259 F.R.D. 294, 322 (N.D. Ohio 2009)("Most courts . . . find [discovery of fee agreements] irrelevant to the issue of class certification, except perhaps to determine whether the named plaintiffs and class counsel have the resources to pursue the class action.").
Fee agreements can become relevant later in a case, however, if the class obtains a judgment or a settlement in its favor. See, e.g., Porter v. NationsCredit Consumer Disc. Co., 2004 U.S. Dist. LEXIS 13641, *7 (E.D. Pa. 2004)(‘[f]ee agreements may be relevant . . . to the question of awarding attorney’s fees upon settlement or judgment.").
Judge Bledsoe said that he found the federal cases persuasive, and ruled that the fee arrangement between Gay and his counsel was not relevant to the subject matter of the case and therefore not subject to discovery. He denied the Bank’s Motion to Compel without prejudice to its renewal at a later stage in the case.
But the Bank was successful at this point on a couple of separate issues: to prevent two of its top executives (its CFO and its Chief Administrative Officer) from being deposed, and to avoid having to respond to an interrogatory asking it to identify its witnesses for trial.
Protective Order Against Discovery Of Top Executives
The Bank said that five of its Officers had already been deposed and that further depositions of its C-level officers would be unduly burdensome, unnecessary and repetitive.
The Court gave a passing nod to something known as the "apex doctrine." Judge Bledsoe wrote that:
[u]nder the apex doctrine, ‘before a plaintiff may depose a corporate defendant’s high ranking officer, the plaintiff must show how "(1) the executive has unique or special knowledge of the facts at issue and (2) other less burdensome avenues for obtaining the information sought have been exhausted."’
Order ¶18 & n.4 (quoting Smithfield Business Park, LLC v. SLR Int’l Corp., 2014 U.S. Dist. LEXIS 16338, *6 (E.D.N.C. 2014)).
But the Judge didn’t go down the road of accepting the apex doctrine. He accepted the Bank’s argument that the additional depositions of the chief officers were unnecessary and that they would disrupt the Defendant’s operations. He ordered that the depositions not be taken.
You Don’t Have To Identify Your Trial Witnesses Before Trial
The Court also dealt with the issue whether the Bank was obligated to identify the witnesses it would be calling at trial so that the Plaintiff could decide whether to depose them before the end of discovery. Apparently the Plaintiff’s counsel raised this issue at a hearing, and had not served an interrogatory asking for this information.
Judge Bledsoe observed that "[i]t is axiomatic that Defendant is not obligated to provide answers to interrogatories that Plaintiff has not yet served." Order ¶23.
But even if an interrogatory requesting that information had been served, it would have been denied. Judge Bledsoe stated that:
North Carolina law is clear that ‘a party is not entitled to find out, by discovery, which witnesses his opponent intends to call at the trial.’
Order ¶24 (quoting King v. Koucouliotes, 108 N.C. App. 751, 755, 425 S.E.2d 462, 464 (1993)).