Civil Practice – Discovery – Attorney-Client Privilege – Blanket Objection – First Impression – Appeals – Interlocutory

K2 Asia Ventures v. Trota (Lawyers Weekly No. 11-07-0921, 23 pp.) (Linda Stephens, J.) Appealed from Forsyth County Superior Court. (James M. Webb, J.) N.C. App. Click here for the full-text opinion.

Holding: When responding to a discovery request, a blanket objection based on attorney-client privilege or work product immunity to all of the opposing parties’ discovery requests is inadequate to accomplish its intended purpose and does not establish a substantial right to an immediate appeal.

The Philippine defendants’ appeal is dismissed. The trial court’s order compelling discovery from the Krispy Kreme Doughnut (KKD) defendants is affirmed.

Philippine Defendants’ Appeal

The Philippine defendants made a “general objection” as to all of plaintiff’s

“‘Definitions’ to the extent that they seek to require the disclosure of information or documents protected by the attorney/client privilege, the work product doctrine, or any other applicable privilege or doctrine.”  This general objection is one of 12 “Objections to ‘Definitions’” listed at the beginning of the Philippine defendants’ responses to plaintiffs’ first set of interrogatories and document requests.

The blanket general objection by the Philippine defendants based on “the attorney/client privilege, the work product doctrine, or any other applicable privilege or doctrine” does not comply with N.C. R. Civ. P. 34 by “stating the objection and the reason therefor either in the space following the request or following the restated request.”

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 accomplish their intended purpose and do not establish a substantial right to an immediate appeal.

While this is a matter of first impression in our state, our holding is in keeping with decisions of the federal courts and other states’ courts.

The Philippine defendants also contend that the privilege logs they submitted to plaintiffs’ counsel constituted a proper assertion of attorney-client privilege. However, the Philippine defendants did not assert or obtain a ruling on claims of attorney-client privilege or work-product immunity from the trial court; therefore, this matter is not properly before us on appeal.

KKD Defendants’ Appeal

The KKD defendants asserted attorney-client privilege and work-product immunity in their specific response to plaintiffs’ request 3. Thus, that portion of the trial court’s June 15, 2010 order compelling the KKD defendants to produce the documents covered by plaintiffs’ request 3 is immediately appealable.

Where the KKD defendants did not ask the trial court to make findings of fact and conclusions of law in support of its discovery order, the trial court was not required to do so.

The KKD defendants argue that, because plaintiffs did not specifically mention attorney-client privilege or work-product immunity, the KKD defendants did not present oral arguments on this issue, offer any evidence in support of their privilege and immunity claims, or submit any of the requested documents for in camera review.

The claimant bears the burdens of establishing both attorney-client privilege and the applicability of the work-product doctrine. The KKD defendants acknowledge that they presented no proof and made no argument on either matter to the trial court.

We believe that a trial court can hardly be said to have abused its discretion in ordering production of documents where the party bearing the burden to establish the validity of its objections failed to offer any evidence whatsoever in support of its claims.

Affirmed in part; dismissed in part.