work product doctrine in North Carolina

2020App. at 413 , 628 S.E.2d at 463 (“And, it goes without saying that any otherwise business emails, copied to an attorney, are not protected by the work product doctrine solely due to the fact that they were sent during a time when the business is anticipating litigation.”).

2019App. at 413 , 628 S.E.2d at 463 (“[A]ny otherwise business emails, copied to an attorney, are not protected by the work product doctrine solely due to the fact they were sent during a time when the business is anticipating litigation.”).

2020The work-product doctrine only protects communications when they are “prepared in anticipation of litigation” by a person acting as a company’s “consultant . . . or agent.” N.C.G.S. § 1A-1, Rule 26(b)(3) (2019); see also Willis v. Duke Power Co., 291 N.C. 19 , 35–36, 229 S.E.2d 191, 201 (1976).

2020The work-product doctrine only protects communications when they are “prepared in anticipation of litigation” by a person acting as a company’s “consultant . . . or agent.” N.C.G.S. § 1A-1, Rule 26(b)(3) (2019); see also Willis v. Duke Power Co., 291 N.C. 19 , 35–36, 229 S.E.2d 191, 201 (1976).

2013Work-product doctrine is “designed to protect the mental processes of the attorney,” specifically his “impressions, opinions, and conclusions or his legal theories and strategies.” State v. Hardy, 293 N.C. 105, 126 , 235 S.E.2d 828, 841 (1977).

2013Work-product doctrine is “designed to protect the mental processes of the attorney,” specifically his “impressions, opinions, and conclusions or his legal theories and strategies.” State v. Hardy, 293 N.C. 105, 126 , 235 S.E.2d 828, 841 (1977).

2021App. 93, 102 (2008) (concluding that a report created pursuant to a safety manual was prepared in the ordinary course of business negating “the possibility of the protection of the report under the doctrine of work product”); Evans, 142 N.C.

2016Auto Ass'n, 142 N.C.App. 18 , 541 S.E.2d 782 (2011), Defendants contend the work product doctrine does not require "direct involvement of an attorney" to apply.

2020App. 370 , 383, 789 S.E.2d 844, 855 (2016).

2019App. at 383, 789 S.E.2d at 855 , is also subject to a particularized test that asks: Whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.

2013Work Product Doctrine Defendants also contend that the work product doctrine — set out in Rule 26(b)(3) of the North Carolina Rules of Civil Procedure — protects from disclosure notes made by Maynard regarding his discussions with Bax, Untch, and various other individuals possessing knowledge of the operating room fire as well as information about the content of these discussions. 5 The work product doctrine prohibits an adverse party from compelling “the discovery of documents and other tangible things that are ‘prepared in anticipation of litigation’ unless the party has a substantial need f

2008The work product doctrine prohibits an adverse party from compelling “the discovery of documents and other tangible things that are ‘prepared in anticipation of litigation’ unless the party has a substantial need for those materials and cannot ‘without undue hardship . . . obtain the substantial equivalent of the materials by other means.’ ” Long v. Joyner, 155 N.C.

2021Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) (“[I]n resolving the question of whether matters are immune from discovery because of the work product rule, attention must be turned first to whether the documents or tangible things were prepared in anticipation of litigation or for trial . . . .”); United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981), cert. denied, 454 U.S. 862 (1981) (“[T]he primary motivating purpose behind the creation of the document was to aid in possible future litigation.”). 21.

2020Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992).

2020See generally State v. Taylor, 327 N.C. 147, 152 , 393 S.E.2d 801, 805 (1990) (“By alleging in his amended motion for appropriate relief that his court-appointed attorney, the Public Defender, rendered ineffective assistance of counsel during the trial and direct appeal of these cases, the defendant waived the benefits of both the attorney-client privilege and the work product privilege, but only with respect to matters relevant to his allegations of ineffective assistance of counsel.”).

2020See generally State v. Taylor, 327 N.C. 147, 152 , 393 S.E.2d 801, 805 (1990) (“By alleging in his amended motion for appropriate relief that his court-appointed attorney, the Public Defender, rendered ineffective assistance of counsel during the trial and direct appeal of these cases, the defendant waived the benefits of both the attorney-client privilege and the work product privilege, but only with respect to matters relevant to his allegations of ineffective assistance of counsel.”).

2016See K2 Asia Ventures v. Trota, 215 N.C.App. 443 , 446, 717 S.E.2d 1 , 4 (2011) ; Cf. Nationwide Mut.

2016See K2 Asia Ventures v. Trota, 215 N.C.App. 443 , 446, 717 S.E.2d 1 , 4 (2011) ; Cf. Nationwide Mut.

2021App. at 30 (affirming the trial court’s denial of work product immunity over the defendant-insurers’ “claims diary” because “the investigation stage of the claims process is one carried out in the ordinary course of an insurer’s business”); Cook, 125 N.C.

2020App. 618, 625 , 482 S.E.2d 546 , 551–52 (1997) (finding an investigatory report not protectable work product where the “report would have been compiled, pursuant to [its] policy, regardless of whether . . . litigation was ever 7“Decisions under the federal rules are . . . pertinent for guidance and enlightenment in developing the philosophy of the North Carolina rules[,]” including Rule 26(b)(3) of the North Carolina Rules of Civil Procedure, which defines the work product doctrine.

2020“Materials prepared in the ordinary course of business are not protected by the work-product doctrine.” In re Ernst & Young, LLP, 191 N.C.

2020App. 668, 678 , 663 S.E.2d 921, 928 (2008), aff’d as modified in part, 363 N.C. 612 , 684 S.E.2d 151 (2009).

2000Ed. 2d at 141 , the United States Supreme Court extended the work-product doctrine from the pre-trial context to trial, reasoning that “the concerns reflected in the work-product doctrine do not disappear once trial has begun.” Nobles, 422 U.S. at 239 , 45 L.

2000Ed. 2d at 141 , the United States Supreme Court extended the work-product doctrine from the pre-trial context to trial, reasoning that “the concerns reflected in the work-product doctrine do not disappear once trial has begun.” Nobles, 422 U.S. at 239 , 45 L.

2024App. at 380, and physician- patient privilege, Midkiff v. Compton, 204 N.C.

2022Co., 198 F.R.D. 81, 86 (W.D.N.C. 2000)); accord FTC v. Grolier, Inc., 462 U.S. 19, 25 (1983) (holding that the work-product doctrine protects “materials prepared for any litigation or trial so long as they were prepared by or for a party to the subsequent litigation[ ]”).

2022Co., 198 F.R.D. 81, 86 (W.D.N.C. 2000)); accord FTC v. Grolier, Inc., 462 U.S. 19, 25 (1983) (holding that the work-product doctrine protects “materials prepared for any litigation or trial so long as they were prepared by or for a party to the subsequent litigation[ ]”).

2021Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) (“[I]n resolving the question of whether matters are immune from discovery because of the work product rule, attention must be turned first to whether the documents or tangible things were prepared in anticipation of litigation or for trial . . . .”); United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981), cert. denied, 454 U.S. 862 (1981) (“[T]he primary motivating purpose behind the creation of the document was to aid in possible future litigation.”). 21.

2021Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) (“[I]n resolving the question of whether matters are immune from discovery because of the work product rule, attention must be turned first to whether the documents or tangible things were prepared in anticipation of litigation or for trial . . . .”); United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981), cert. denied, 454 U.S. 862 (1981) (“[T]he primary motivating purpose behind the creation of the document was to aid in possible future litigation.”). 21.

2020Turner v. Duke Univ., 325 N.C. 152, 164 , 381 S.E.2d 706, 713 (1989). anticipated”); RLI Ins.

2020Turner v. Duke Univ., 325 N.C. 152, 164 , 381 S.E.2d 706, 713 (1989). anticipated”); RLI Ins.

2020Litig., 693 F.2d 1235, 1240 (5th Cir. 1982) (observing that “the work product immunity protects only the documents themselves and not the underlying facts”).

2020Indeed, the work product doctrine does not apply to materials that “would have been created in essentially similar form irrespective of the litigation.” United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998); see also, e.g., Cook v. Wake Cty.

2020“When the relationship of attorney and client exists, all confidential communications made by the client to his attorney on the faith of such relationship are privileged and may not be disclosed.” Dickson v. Rucho, 366 N.C. 332, 340 , 737 S.E.2d 362, 369 (2013) (alteration, citation, and quotation marks omitted).

2020“When the relationship of attorney and client exists, all confidential communications made by the client to his attorney on the faith of such relationship are privileged and may not be disclosed.” Dickson v. Rucho, 366 N.C. 332, 340 , 737 S.E.2d 362, 369 (2013) (alteration, citation, and quotation marks omitted).

2016See Sharpe, 351 N.C. at 166 , 522 S.E.2d at 581 (holding that the challenged order affects a substantial right when a party asserts a statutory privilege that is not frivolous or insubstantial); *226 Dogwood Dev. & Mgmt.

2016See Sharpe, 351 N.C. at 166 , 522 S.E.2d at 581 (holding that the challenged order affects a substantial right when a party asserts a statutory privilege that is not frivolous or insubstantial); *226 Dogwood Dev. & Mgmt.

2014State v. McIntosh, 336 N.C. 517, 523-24 , 444 S.E.2d 438, 442 (1994)). {43} The Court concludes that in merely seeking identification of documents, Interrogatory No. 5 requests only factual information that is not confidential or privileged and, therefore, offends neither the work product doctrine nor the attorney-client privilege.

2014State v. McIntosh, 336 N.C. 517, 523-24 , 444 S.E.2d 438, 442 (1994)). {43} The Court concludes that in merely seeking identification of documents, Interrogatory No. 5 requests only factual information that is not confidential or privileged and, therefore, offends neither the work product doctrine nor the attorney-client privilege.