In an (unpublished) Order last week in Griggs v. Bittersweet Farms, LLC, Judge McGuire ruled that Plaintiffs’ counsel’s instruction to his client not to answer certain deposition questions was improper. He granted a Motion to Compel responses to the unanswered questions, denied a Motion for Protective Order to excuse the Plaintiffs from having to
A Valuable Point From The NC Business Court On Subpoenas Without Depositions
Can you send a subpoena duces tecum — which translated from Latin is "a writ commanding a person to produce in court certain designated documents or evidence " — without coupling it with a deposition?
Maybe that question has never puzzled you, but in an Order of the Business Court on February 12, 2015 in…
The Interrogatory That Does Not Warrant An Objection Based On Privilege
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…
Don’t Throw The Kitchen Sink Of Defenses Into Your Answer
Say you are filing an Answer to a Complaint. NC Rule of Civil Procedure 8(c) lists a host of affirmative defenses you might raise. They are:
accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment,
One Superior Court Judge Overruling Another?
You are all familiar with the old adage that "one Superior Court Judge cannot overrule another Superior Court Judge." But apparently there is at least a little bend in that rule, as illustrated by Judge Bledsoe’s opinion this past Thursday, in Taidoc Technology Corp. v. OK Biotech Co., 2014 NCBC 48.
Business Court Resolves A Trio Of Discovery Issues
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…
NC Business Court Puts Teeth In Protective Order
I’ve never thought much about the consequences of the violation of a Protective Order. In fact, before last week’s Business Court ruling in Out of the Box Developers, LLC v. Logicbit Corp., 2014 NCBC 7, no North Carolina case had "squarely addressed whether Rule 37 permits sanctions for violations of Rule 26(c) protective orders."…
You Can’t Appeal That! Or Can You?
You may remember the case of Out of the Box Developers, LLC v. Logicbit Corp. It has spawned a couple of interesting discovery decisions. One was on subpoenas to third parties, another involved nearly $40,000 in sanctions for attorneys’ fees against two of the Defendants for failing to comply with a discovery order…
Who Doesn’t Like Reading About A Ruling On A Motion To Compel?
I probably enjoy reading a ruling on a motion to compel a whole lot more than the judge does in writing it. So of course I enjoyed reading Judge Murphy’s Order on a Motion to Compel yesterday in County of Catawba v. Frye Regional Medical Center. It’s actually pretty interesting. It’s got discovery issues…
Business Court Awards $38,000 In Fees For Opposing Party’s Failure To Comply With Discovery Order
Have you ever billed a client nearly $65,000 for pursuing a motion to compel? Maybe you routinely handle mega-cases and you aren’t goggled by the size of that kind of fee But that was the amount of the fee sought last month, in Out of the Box Developers, LLC v. Logicbit Corp. following Plaintiff’s win on a motion for sanctions growing out of a discovery dispute. It was sizeable enough to catch my attention.
The case is about the Defendants’ alleged theft of Plaintiff’s customizations to its case management software. The Defendants’ product, aimed at use by bankruptcy attorneys, is marketed under the name HoudiniEsq. During discovery, Plaintiff requested production of the version of HoudiniEsq used by one of the Defendants in May 2010, which would have allowed Plaintiff to isolate the customization to the software as of that time.
Despite an April 12, 2013 Order from the Court directing the production of that version of the software, the two Defendants at which the Order was directed — The Doan Law Firm and Doan Law, LLP — failed to comply. Judge Gale ruled in 2013 NCBC 32 that there was no justifiable reason for the noncompliance. Op. ¶41. He found it egregious enough to warrant the "severe sanctions" allowed by Rule 37(b)(2) of the North Carolina Rules of Civil Procedure. Op. ¶44.
Instead of imposing those severe sanctions — like striking pleadings or barring the Defendants from defending against a claim as allowed by Rule 37(b)(2) — Judge Gale ruled that the Plaintiff should be reimbursed its "reasonable costs and expenses" associated with the several motions to compel made necessary by the Doan Defendants’ failure to produce the software.
The issue of the reasonableness of the costs and expenses was decided by the Business Court in 2013 NCBC 34. Plaintiff’s lead counsel had filed an Affidavit requesting an award of $63,714.57. That was based on fees the fim had billed for three motions to compel and the hearing for sanctions which led to the Court’s final discovery ruling.
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