There was enough worth talking about in Judge Bledsoe’s opinion in National Financial Partners Corp. v. Ray, 2014 NCBC 49, which I posted about yesterday, to warrant a second post.
What I didn’t discuss yesterday was the question answered in the National Financial opinion: whether a lawyer can object, on the basis of privilege, to an interrogatory asking him or her to identify all the documents relied upon in responding to the entire set of interrogatories.
I used to routinely object to that type of interrogatory because I felt that it intruded on the work product privilege. I don’t remember ever facing a Motion to Compel on that objection, but I would probably adjust that response now because it has been deemed unsustainable by Judge Bledsoe.
He said in the National Financial decision that:
in merely seeking identification of documents, [that type of interrogatory] requests only factual information that is not confidential or privileged and, therefore, offends neither the work product doctrine nor the attorney-client privilege.
Op. ¶43 (relying on Berlinger v. Wells Fargo, N.A., 2012 U.S. Dist. LEXIS 26650, at *5-6 (M.D. Fla. March 1, 2012).
At least I can still object legitimately to interrogatories asking me to identify my trial witnesses. Judge Bledsoe held a few weeks ago 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.’
Gay v. Peoples Bank. 2014 NCBC 45 at ¶24 (quoting King v. Koucouliotes, 108 N.C. App. 751, 755, 425 S.E.2d 462, 464 (1993)).