Civil Practice – Order Compelling Discovery – Document Production

The trial court did not abuse its discretion in compelling the production of documents as directed in the amended order to compel.

We affirmed the trial court’s amended order to compel.

Plaintiff Father and defendant Mother are the parents of minor children Alex and Alice. Following their separation and divorce, Mother and Father reached an agreement concerning child custody and child support. Two years later, in December 2020, Father moved to modify the child custody agreement. Mother subsequently also moved to modify child custody. On June 8, 2022, after a hearing on the matter, the trial court entered an order ruling on both Father’s and Mother’s motions for temporary custody modification. During this litigation, Father served Mother requests for production of documents. Mother failed to fully comply with those requests. On November 28, 2022, the trial court entered an order compelling the production of documents. Mother appealed.

First, Mother argued that the protocols outlined in the amended order to compel protect her statutory privileges only “in theory” and in actuality prevent her from conducting a privilege review, thus denying her “meaningful protection of her privileged information.” She requested that we vacate that order and remand to the trial court with instructions to narrow the search terms and communication recipients to prevent the overinclusion of irrelevant documents and allow meaningful and affordable review by the parties. Mother’s argument about her inability to conduct a meaningful privilege review is without merit.

Second, Mother argued that the trial court abused its discretion when it ordered document production that is “not reasonably calculated to lead to discoverable material” and is “so overbroad that it implicates [her] privacy[.]” The production of communications between Mother and various parties that contain the specified search terms is reasonably calculated to lead to the discovery of admissible evidence proving or disproving Father’s allegation that Mother alienates and disparages Father’s character.

Further, the trial court was able to see and hear the parties at the hearings and use its discretion to determine the credibility of the witnesses, including Mother. In its amended order, the trial court found that Mother’s responses to Father’s requests were deficient, and that Mother testified to deleting communications that fell under the scope of Father’s discovery requests, even though she was on notice not to delete those communications. Those findings were supported by competent evidence in the record.

Mother also contended that the ordered document production implicates her privacy due to its breadth. Because of the difficulty in proving whether Mother made disparaging comments about Father without looking at Mother’s communications, the discovery in this case necessarily invades Mother’s privacy to a degree; however, that is often the reality of child custody disputes, where private information about the parents is needed to determine the best outcome for the children. In this case, the amended order contains safeguards that protect Mother’s privacy, such as requiring the independent forensic expert’s agency to secure Mother’s information so it cannot be accessed by anyone other than the parties’ counsel and requiring all parties to keep the document production strictly confidential. Thus, we could not say the trial court abused its discretion in compelling the production of documents as directed in the amended order to compel.

Affirmed.

Heijmen v. Heijmen (Lawyers’ Weekly No. 012-110-24, 8 pp.) (Chris Dillon, J.) Appealed from Durham County District Court (Dorothy H. Mitchell, J.) Patrick Law, PLLC, by Kirsten A. Grieser and Cheri C. Patrick, for defendant-appellant; Gailor Hunt Davis Taylor & Gibbs, PLLC, by S. Nicole Taylor and Jonathan S. Melton, for plaintiff-appellee. North Carolina Court of Appeals Unpublished