Civil Practice — Discovery – Subpoena – Nonresponsive Documents – Privilege – Relevance

In order to obtain documents responsive to a discovery request, plaintiff ultimately had to issue a subpoena to her ex-husband. Along with the subpoenaed documents, the ex-husband included many irrelevant documents as well as privileged communications between plaintiff and counsel and attorney work-product. Although N.C. R. Civ. P. 45(d1) requires the party responsible for the issuance and service of a subpoena to “provide all other parties a reasonable opportunity to copy and inspect” the material produced, Rule 45(d1) must be read in harmony with N.C. R. Civ. P. 26. Defendants are not entitled to copy and inspect material subject to plaintiff’s attorney-client privilege, counsel’s work product, or irrelevant documents like recipes and homework.

We vacate the trial court’s production order and remand for an order requiring plaintiff to provide only non-privileged and relevant documents for defendants’ review, which are responsive to defendants’ discovery request.

Our review of the legislative history of Rules 26 and 45 shows that the General Assembly intended to protect a party who has received privileged or non-responsive documents as a result of a subpoena, through no fault of their own. Moreover, with regard to electronically stored information—the ex-husband made the production via thumb drive—our courts have consistently held that Rule 45 is expressly subject to the limitations of Rule 26(b)(1a).

Defendants’ interpretation would make a Rule 45(d1) demand inconsistent with the otherwise harmonious rules governing discovery. If the trial court’s hyper-technical reading of Rule 45(d1) is upheld, a Rule 45(d1) request would become the only discovery device not subject to assertions of privilege and limitations. A party would never be able to use a subpoena to recover her own confidential and privileged documents, and a subpoena recipient would be free to harass the requesting party by producing sensitive, embarrassing, irrelevant and privileged documents that are not responsive to the discovery request.

Our General Assembly could not have reasonably intended that result. Rule 45 is meant to be limited by adequate compliance with Rule 26. Plaintiff fully complied with Rule 26(5)(a) and thus garners the protections inherent in Rule 26.

Vacated and remanded.

Wing v. Goldman Sachs Trust Co., N.A. (Lawyers Weekly No. 011-248-21, 15 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Edwin Wilson, J.) Johnny Loper, Elizabeth Arias and Jesse Schaefer for plaintiff; Alan Duncan, Allison Mullins, Hillary Kies, Leslie Packer, Alex Hagan and Michelle Liguori for defendants. 2021-NCCOA-662