Civil Practice – Discovery – Appeals – Interlocutory – Spoliation of Evidence Claim – Paralegal Deposition

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Britt v. Cusick (Lawyers Weekly No. 14-07-0002, 10 pp.) (Martha A. Geer, J.) Appealed from Mecklenburg County Superior Court (James W. Morgan, J.) N.C. App.

Holding: When plaintiffs’ counsel’s paralegal could not get defendants to produce documents, plaintiffs claimed spoliation of evidence; nevertheless, defendants may not immediately appeal the trial court’s order that quashed defendants’ notice of deposition of the paralegal.

Appeal dismissed.

In its order, the trial court ordered plaintiff to produce the paralegal’s testimony in written form to defendants. After receiving the paralegal’s written testimony, defendants may ask follow-up questions in writing, and plaintiffs are required to respond promptly. The paralegal may testify live at trial, but her testimony shall be limited to information produced in her written testimony and responses to defendants’ follow-up written questions. Finally, the order provided, “This Order may be modified by future Court Order if required in the interest of justice.”

Defendants have not pursued the discovery authorized by the trial court; as a result, they have not shown what relevant and material information they would obtain in an oral deposition that they cannot obtain using the procedure adopted by the trial court. Defendants have not shown that the trial court’s order affects a substantial right.