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Defendant can’t depose opponent’s lawyer

A contentious North Carolina Business Court case between a group of pediatricians and a now-bankrupt office developer has produced new law on when a party can depose the opposing side’s attorney – and it isn’t even out of the discovery phase yet.

Blue Ridge Pediatric, based in Boone, wanted to buy a plot of land for its new location. The one it found was a little bigger than needed, so it contracted with First Colony Healthcare to develop the property into a medical office park. Under the agreement, First Colony would develop the land into a new medical office park and Blue Ridge would lease office space for at least 10 years and share in the profits from the park.

The doctors moved into their new offices in March 2008. They allege that since that time, they’ve paid their rents, but failed to receive any portion of the park’s profits. In June 2011, they filed suit against First Colony, which filed for bankruptcy protection in 2009, and three of its directors.

The doctors presented a set of interrogatories and a request for documents to First Colony, which tipped their intention to dig in for a fight by objecting to the discovery and moving for a protective order. The same day, First Colony issued a subpoena to Thomas M. Ward, one of the attorneys representing the doctors, to appear for a deposition. It also issued a subpoena duces tecum — a subpoena requesting documents — to Ward’s firm, Harris, Creech, Ward and Blackerby.

Ward asked Business Court Judge Calvin Murphy to quash the subpoena against him, arguing that it was improper because it violated attorney-client privilege and was issued only to harass the plaintiffs and unnecessarily increase the cost of litigation.

Finding no North Carolina case law addressing the rules for when a party can depose the opposing party’s litigation counsel, Murphy opted to apply the Shelton test, adopted by federal courts in North Carolina.

Under that test, the deposition of opposing counsel is limited to circumstances where the party making the request can show that no other means to obtain the information exist and that the information sought is relevant, not privileged and crucial to the preparation of the case.

In the case at hand, Murphy ruled that First Colony had failed to clear that high bar.

“Defendants have failed to demonstrate the propriety and need for deposing Ward. Specifically, defendants suggest they wish to depose Ward about ‘advice, communications, and receipt of documents [that are] the basis’ of Plaintiffs’ suit,” Murphy wrote. “Such knowledge is precisely the type of information Shelton attempts to protect from disclosure by litigation counsel in a deposition.”

Ward declined to comment on the decision, saying that the matter is ongoing.

Harris, Creech, Ward and Blackerby also moved to quash the subpoena against it, which was directed to the firm itself and not to any specific person. Again, finding no applicable state case law and relying on the federal rules, Murphy found that for the purposes of the Rules of Civil Procedure, corporations are people. He declined to quash that subpoena, finding that it was not overly broad and did not seek privileged material.

The motion to compel discovery from First Colony was granted.

Ward, W. Gregory Merritt, Jay Salsman, and Luke Dalton represented the plaintiffs for Harris, Creech, Ward and Blackerby. Gregory W. Brown and Justin M. Osborn of Brown Law represented the defendants.

The 20-page opinion is Blue Ridge Pediatric & Adolescent Medicine, Inc. v. First Colony Healthcare, LLC (Lawyers Weekly No. 12-15-0852).


You can follow David Donovan
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