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Statements made in the course of settlement negotiations are inadmissible at trial, per Rule 408 of the NC Rules of Evidence. But does that dead end to admissibility protect against the production of such items during discovery?
No, said Judge Bledsoe, in his Opinion late last month in Duke Energy Carolinas, LLC v. AG
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I don’t think that there is anything worse than having a client get subpoenaed in a case to which it isn’t a party. It didn’t want to be drawn into someone else’s problem, to have to scour its records to respond to an unanticipated and intrusive request for documents, and to have to deal with the expense of an outside lawyer to handle the mess.
The good news is that Rule 45 provides greater protection to a non-party responding to a subpoena than it does to a party responding to discovery. Judge Conrad of the NC Business Court observed in a decision last week, Arris Group, Inc. v. CyberPower Systems (USA), Inc., 2017 NCBC 57, that “[t]he courts have an obligation to protect nonparties from burden and expense imposed without sufficient justification.”(quoting Bank of Am. Corp. v. SR Int’l Bus. Ins. Co., 2006 NCBC LEXIS 17, at *16. Op. ¶13.
He outlined some of those protections:
Judge Conrad also relied on some federal court decisions on the difference between party and non-party status when dealing with discovery matters. He said that:
federal courts have also stressed the “distinction between a party and nonparty” in applying the Federal Rules of Civil Procedure. Beinin v. Ctr. for the Study of Popular Culture, No. C 06-2298 JW (RS), 2007 U.S. Dist. LEXIS 22518, at *6 (N.D. Cal. Mar. 16, 2007). Although parties to litigation must accept the “travails [of discovery] as a natural concomitant of modern civil litigation,” “[n]on-parties have a different set of expectations.” Papst Licensing GmbH & Co. KG v. Apple, Inc., No. 6:15-cv-1095, 2017 U.S. Dist. LEXIS 51274, at *9 (N.D. Ill. Apr. 4, 2017). Accordingly, “the fact of nonparty status may be considered by the court in weighing the burdens imposed in the circumstances.” Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir. 1993); see also Intermec Techs. Corp. v. Palm, Inc., No. C09-80098 MISC WHA, 2009 U.S. Dist. LEXIS 132759, at *7 (N.D. Cal. May 15, 2009)(holding that protections apply “doubly when the respondent is a non-party”).
Op. ¶15 (emphasis added).
So how did Delta Products (the non-party recipient of the Defendant’s subpoena) fare against this backdrop of accommodation to non-parties? Delta came out pretty well, although not unscathed.
Why would any lawyer think that his Joint Defense Agreement, entered into with a co-defendant, was protected from production by the attorney-client privilege? Well, the lawyer for one of the Defendants in AP Atlantic, Inc., v. Crescent University City Venture, LLC, 2017 NCBC 48 did, but his position was rejected by NC Business Court
You probably don’t think much, when you are noticing a deposition, about where it should take place. Ideally, you probably want it to happen in your own office.
The NC Rule of Civil Procedure on depositions, Rule 30, says that the notice of deposition "shall state the time and place for taking the deposition."
Going pro se in the NC Business Court is a bad idea. At least it was for the Plaintiff in Gillespie v. Majestic Transport, Inc., 2017 NCBC 43 who saw his claims dismissed (without prejudice) for failing to comply with the Court’s discovery orders and was ordered to pay attorneys’ fees to the Defendant.
Thinking of filing a Motion to Compel in the NC Business Court? You might want to file it before the close of the discovery period, even though there is no Business Court Rule establishing a deadline for doing so.
That’s because there might be a "secret rule," based on Judge Robinson’s (unpublished) Order last week
There is probably nothing more routine in litigation today than a Plaintiff’s counsel sending a "preservation letter." A preservation letter, if you’ve never sent or received one, is a letter sent at the outset of litigation — or even before it begins — telling the opposing counsel or party (or even a non-party) to make
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There a probably few things in legal practice as annoying as getting a Notice of Deposition for your client’s in-house counsel.
Are you willing to pursue a Motion for a Protective Order to prevent the deposition? The Defendant in a case before the Business Court tried that, but its Motion was denied in an Order
You have probably been in this situation. Your client is a successful corporate entity, maybe publicly held. You are defending the entity in a lawsuit and you receive a Notice of Deposition for the CEO of your client. The CEO is annoyed, says that she knows nothing about the substance of the lawsuit, and that
This is Part 2 of an examination of the 100+ “Orders of Significance” dropped by the NC Business Court late last year. Part 1 of this series (on designating cases to the Court) is