Aggressive Attorneys and the Rules of Discovery

by de Ondarza Simmons, PLLC on September 26, 2011

Aggressive does not mean Obnoxious

Knowing and applying the rules and the law to pressure the other side and persuade the judge and jury

Do you need a truly aggressive lawyer for your business or real estate dispute?

Everyone wants an aggressive attorney. But a lot of folks who are not lawyers think that means having a lawyer who is rude to the other side or the other lawyer. They think aggressive means obnoxious. This is nonsense.

An aggressive attorney is one who advances her clients interests by knowing and applying the law and the rules. One set of rules that sounds boring as dirt is the set of rules that governs discovery, the process of requesting and properly objecting to the exchange of information in a lawsuit. It may sound boring, but doing it right can mean the difference between winning or losing your case.

Recent Krispy Kreme Doughnut case, Attorney-Client Privilege, and Work Product Immunity

A recent business litigation case involving Krispy Kreme Doughnuts, illustrates the importance of correctly objecting to discovery requests. In that case, the Plaintiffs propounded discovery to two Krispy Kreme entities and the other 17 defendants.  Some of the defendants claimed that they did not have to produce documents in response to some requests because the documents were protected by the attorney-client privilege and work product immunity. The Plaintiffs then moved to

“strike or limit any objections and “compel[] full responses” to Plaintiffs’ discovery requests.”

The Trial Court granted Plaintiffs motion and ordered Defendants to produce certain documents, and the Defendants appealed.

Appeals from Orders to Compel Discovery Responses

The North Carolina Court of Appeals noted that the North Carolina Supreme Court had previously held that

“[a]n order compelling discovery is generally not immediately appealable because it is interlocutory and does not affect a substantial right that would be lost if the ruling were not reviewed before final judgment.” … However, where “a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right under [N.C. Gen. Stat. ‘] 1-277(a) and [N.C. Gen. Stat. ‘] 7A-27(d)(1).” … This Court [the North Carolina Court of Appeals] has applied the reasoning of Sharpe to the common law attorney client privilege.

Discovery Rules Require Specific Objections to each Request

So, an order compelling discovery responses over a proper objection asserting attorney-client privilege or work product immunity is immediately appealable.  But as the Court of Appeals pointed out, the party claiming the privilege or immunity must state its objection properly:

Civil Procedure Rule 34, concerning production of documents, provides in pertinent part:

The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. . . . There shall be sufficient space following each request in which the respondent may state the response. The respondent shall: (1) state the response in the space provided, using additional pages if necessary; or (2) restate the request to be followed by the response. An objection to a request shall be made by stating the objection and the reason therefor either in the space following the request or following the restated request.

N.C. Gen. Stat. § 1A-1, Rule 34(b) (2009) (emphasis added). We conclude that the blanket general objection provided by [this set of Defendants] based on “the attorney/client privilege, the work product doctrine, or any other applicable privilege or doctrine” does not comply with Rule 34 by “stating the objection and the reason therefor either in the space following the request or following the restated request.” Nor does [this set of Defendants’] blanket general objection comply with the holding of [the North Carolina Supreme Court]… that appellants must make an “‘assertion of such privilege [that] is not otherwise frivolous or insubstantial.’”…  We hold that blanket general objections purporting to assert attorney-client privilege or work product immunity to all of the opposing parties’ discovery requests are inadequate to effect their intended purpose and do not establish a substantial right to an immediate appeal.

Lessons from this case

This case goes on to address other discovery rules and lays out a road map for properly asserting objections to discovery based on attorney-client privilege and work product immunity.    If you would like a copy of the case, just send us an email and we will forward you the link to the North Carolina Court of Appeals’ official opinion.  To do that now, you should click here.

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You may have a business or real estate dispute.  If that dispute grows into a lawsuit, it will likely involve discovery, and you will need the guidance of an aggressive attorney to help you propound the right discovery requests for your case, to compel the other side to respond, and to properly object to discovery propounded to you.  If you have a business or real estate dispute and would like to set up an initial consultation with us, you should click here.

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