There is no attorney client privilege or work product privilege between lawyers and their experts regarding information exchanged between them, even if the expert is also the client.
The Court held:"Plaintiff’s assertion of the attorney client privilege to shield discovery of any communications with counsel involving his expert opinions is misplaced. Expert witnesses are subject
When you have an additional three days to respond to a filing served by mail, and the response period ends on a weekend or holiday, this is how you calculate the response period:
"The correct formula for the computation of a time period during which a filing is required is as follows: number of days
Does North Carolina recognize a claim for aiding and abetting breach of fiduciary duty? The North Carolina Court of Appeals shed a little bit of light on the question this week., but it wasn’t very illuminating.
The linchpin for this frequently made claim has been the twenty year old case of Blow v. Shaughnessy, 88 N.C. App. 484, 364 S.E.2d 444 (1988), in which the Court of Appeals recognized the tort. It held simply that "a cause of action on this theory has been recognized by federal courts in securities fraud cases based on violations of section 10(b) of the Securities Exchange Act of 1934."
But six years after Blow was decided, in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), the United States Supreme Court held that there was no liability for aiding and abetting under the securities laws, thus eviscerating the underpinning of the Blow case.
Since then, the North Carolina Business Court has expressed doubt about the continuing vitality of claims for aiding and abetting breach of fiduciary duty. Judge Diaz noted the issue most recently in Regions Bank v. Regional Property Development Corp., 2008 NCBC 8 and in Battleground Veterinary Hospital, P.C. v. McGeough, 2007 NCBC 33; and Judge Tennille wrote on the subject in Sompo Japan Insurance Inc. v. Deloitte & Touche, LLP, 2005 NCBC 2. In none of these cases, however, did the Business Court dismiss the claim on the basis that it is not recognized in North Carolina.
This week, the Court of Appeals decided the case of Hinson v. Jarvis, in which it made a passing reference to Blow which might be interpreted as giving some life to that case. In a footnote, the Court stated:
In addition to the cases discussed in this section, plaintiffs also rely on Blow v. Shaughnessy, 88 N.C. App. 484, 364 S.E.2d 444 (1988). That case, however, involved the imposition of liability on a defendant that encouraged a third party to breach his fiduciary responsibility — a securities law violation — owed to the plaintiff. Id. at 489, 364 S.E.2d at 447. This case, however, does not involve any fiduciary relationship between Mr. Jarvis and plaintiffs. We therefore find Blow distinguishable from the instant case.
Continue Reading Aiding And Abetting Breach Of Fiduciary Duty: Alive Or Dead?
I’m glad to report that this blog was selected today as the "Blawg of the Day" by inter alia.
If you haven’t looked at inter alia, it is a great resource about legal research on the internet, as well as for its daily "Blawg of the Day." Tom Mighell, a Texas lawyer who publishes inter alia, also
The Court of Appeals affirmed yesterday a 12(b)(6) dismissal of a claim under the North Carolina Trade Secrets Protection Act, in Washburn v. Yadkin Valley Bank and Trust Co.
In Washburn, the Defendant had made a counterclaim charging that the Plaintiffs, former employees, had misappropriated its trade secrets. The trade secrets the Defendant referenced
This short Order has a valuable nugget on the discoverability of communications between lawyers and their expert witnesses.
One of the Defendants moved to compel discovery from the Plaintiff to obtain documents exchanged between the Plaintiff’s lawyers and their expert.
The expert, however, was also the President of the client and the central fact witness. Plaintiff resisted production on the
Gateway Management Services, Inc. v. Advanced Lubrication Technology, Inc., 2008 NCBC 11 (N.C. Super. Ct. May 5, 2008)(Tennille)
When you have an additional three days to respond to a filing served by mail, and the response period ended on a weekend or holiday, do you start counting the three days on the holiday or weekend day, or do you start from the first business day after the expiration of the response period?
The North Carolina Business Court answered this counting question, and another important time calculation question, today in the Gateway Management case. (You can click on the case name at the top to see the opinion).
The issue was the timeliness of Plaintiff’s Reply to Defendant’s Counterclaim. The Plaintiff said that the right method of counting was to count first the thirty day response time allowed by Rule 12(a), and that if the thirtieth day fell on a weekend or holiday, to count the three days from the first following business day. (Note: this is exactly the right way to count under the comment to the 2005 amendments to Federal Rule of Civil Procedure 6(d), which is worded differently than the North Carolina Rule).
The Court disagreed with the Defendant on when to start counting the three days for service by mail. Here’s what it held:
"The correct formula for the computation of a time period during which a filing is required is as follows: number of days allowed under applicable statute + three days under Rule 6(e) + any weekend or holiday under Rule 6(a). The Court notes that the three days under Rule 6(e) is added to the end of the time period allowed by statute regardless of whether that time period ends on a Saturday, Sunday, or legal holiday. It is at the end of the additional three days that Rule 6(a) applies."
The Court also dealt with another time calculation issue: when to start counting the time for a response when the document to which the response is due is e-filed, but the party who has to respond has not yet registered to e-file and no Order requiring e-filing has yet been entered. Even though this might be a rare situation, there’s potential danger here, so you might want to keep reading.Continue Reading Business Court Rules On How To Count Days For Filing A Response
Service of process can be made by leaving the Summons and Complaint at the Defendant’s residence, even though not in literal compliance with Rule 4, if the Defendant has evaded service.
The Defendant will waive an objection to service (and to jurisdiction) by filing a Notice of Designation to the North Carolina Business Court, because "the