The out of state defendant, who had received payments from the plaintiff on a promissory note, was subject to personal jurisdiction in North Carolina. Money was a "thing of value" within the meaning of the North Carolina long arm statute. The Court further found that it had specific jurisdiction over the defendant with regard to the matters at issue, which involved the same development project on which he had received payment pursuant to the promissory note.

The Court granted defendant’s motion to dismiss, however, finding that plaintiff had failed to state a claim under the North Carolina Uniform Fraudulent Transfer Act because its claims were barred by the one year statute of limitation of N.C.G.S. §39-23.9, and also because the plaintiff had failed to plead the debtor’s intent to defraud its creditors. The Court also rejected plaintiff’s claims that it was entitled to a constructive trust.

Full Opinion

This was a Writ of Certiorari to the Business Court asking for the reversal of a zoning decision by a City. The City had issued a conditional use permit authorizing a proposed development. To the extent that there were claims of errors of law, the Court reviewed the matter de novo. To the extent that there were claims that the issuance of the permit was not supported by the evidence or that it was arbitrary and capricious, the Court applied the "whole record" test, which required it to examine all of the competent evidence before the CIty to determine whether its decision was supported by substantial evidence. After consideration, the Court affirmed the zoning decisions made.

Full Opinion

This case presents the logical corollary to Analog: how should the issue of retrieval of electronically stored information, and the inevitable cost, be allocated when a non-party holds the information?

The target of the subpoena had produced approximately 50,000 documents in response to a subpoena, but balked at retrieving and producing deleted emails contained on backup tapes. The defendant estimated its costs of retrieval at over $1 million.

The Court denied the Motion to Compel, given the significant burden that the non-party would have to shoulder, and also because the moving party was unable to show that it had not already received the information that it needed and its motion was therefore premature. As the Court put it, the information sought appeared to have a "low level of marginal utility" given the early stage of the proceedings.

It held that "what the courts of this state are most likely to reject is an early and all-encompassing request to review inaccessible data stored solely for a catastrophic situation on the premise that there might be something useful and relevant in the data. Rule 45 affords greater protection to nonparties than Rule 26 provides to parties. The courts have an obligation to protect nonparties from burden and expense imposed without sufficient justification."

The Court’s opinion attaches the Conference of Chief Justices’ Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information.

Full Opinion

The issue here concerned the now familiar problem of the duty of a party to retrieve electronic data from back-up media, and how the cost of that effort should be allocated. The Court engaged in a thorough review of the various approaches to the issue, ranging from the now-famous Zubulake opinion to the Sedona Principles, and settled on what it called a "rules-based approach," relying heavily on the North Carolina Rules of Civil Procedure.

The Court declined to articulate a "rigid test" to be considered in these types of determinations, recognizing that each situation should be resolved on its own facts, but the Court referenced with approval the Guidelines of the Conference of Chief Justices Regarding Discovery of Electronically Stored Information as well as other factors relied upon by the other approaches to the issue. (In a companion case, SR International, the Court characterized its approach as "a straightforward application of Rule 26 of the North Carolina Rules of Civil Procedure, supplemented by Guidelines adopted by the Conference of Chief Justices.")

The Court held that the "overriding concern" in ruling on ESI issues should be whether or not they are "outcome determinative." It stated that "[i]f the party seeking production would be denied access to information which could have a material effect on a substantive issue in the case and where the cost of obtaining the information would be an insurmountable barrier to the requesting party, the denial of discovery or the allocation of costs to the requesting party could affect the final outcome. Discovery containment should not force such a result. If, on the other hand, the costs to the responding party of producing the information would be unreasonably related to the matter at issue or the amount in controversy, the responding party might be forced to settle without regard to the merits of its claims or defenses."

In the matter before it, where defendants sought the restoration of 400 backup tapes to obtain emails from persons involved in the development of the trade secret information at issue, the Court said it would consider "(1) the burden and expense of production; (2) the needs of the case; (3) the amount in controversy; (4) any limitations on the parties’ resources; and (5) the importance of the issues at stake." On the facts before it, the Court ordered the parties to share the restoration costs equally, and that the plaintiff should search the retrieved information, at its own expense, based on search terms provided by the defendant.

The Court stated that it preferred such issues to be resolved by a Motion for a Protective Order filed by the party claiming excessive cost or burden, as opposed to a Motion to Compel filed by the party seeking the information.

Full Opinion

Plaintiff’s counsel had verbal discussions with the defendant, before litigation began, about the possibility of representation against his former employer. In the course of those discussions, the defendant sent counsel an email containing confidential information about the potential litigation. Plaintiff’s counsel had never looked at the contents, and thereafter represented the employer.

Defendant moved to disqualify plaintiff’s counsel. The Court granted the motion, notwithstanding its finding that there had been no unethical conduct and no violation of the Rules of Professional Conduct. It held that the attorney had an obligation of determining that he had no conflict at the outset of the representation, that he was responsible for having read what was sent to him, and that "the goal of maintaining public confidence in our system of justice demands that courts prevent even the appearance of impropriety and thus resolve any and all doubts in favor of disqualification."

The Court also considered Rule 1.18 of the North Carolina Rules of Professional Conduct, which deals with duties of attorneys to prospective clients. It held that "[t]he aim of Rule 1.18 is to prevent a lawyer who acquires strategic information from a prospective client from using that information against the client. On the battlefield, stumbling upon an opponent’s secret plans may determine the outcome of an engagement; but in the courtroom, Rule 1.18 protects litigants from this fate by prohibiting an attorney from using confidential information to the detriment of a prospective client. The type of information prohibited by Rule 1.18 is exactly the type of information to which [the lawyer] has had access since receiving [the] email—a client’s personal thoughts and impressions regarding the facts of his case and possible strategies for a lawsuit. The Court cannot allow Plaintiffs to be represented by counsel who has had access to such potentially damaging information."

Full Opinion

Following a thorough discussion of the elements of a valid contract, the Court found a question of material fact whether the parties had agreed on all the material terms of the contract which plaintiff claimed entitled him to a significant bonus. Plaintiff was not required to show that the bonus had actually been paid in prior years in order to recover. The Court dismissed, however, plaintiff’s claim for an additional bonus because it found that the parties had never agreed, during their negotiations over additional compensation, how it would be determined.

The Court further ruled that the individual defendants could be liable to plaintiff under his North Carolina Wage and Hour Act claim, and denied their motion for summary judgment based on the argument that plaintiff had been employed by the corporate defendant. It relied on cases interpreting the Federal Fair Labor Standards Act, which hold that individuals can be jointly and severally liable with a corporate employer for unpaid wages where they serve as part owners, officers, or directors of the corporation, or where they are involved in the management of the corporation.

The Court also held that plaintiff could proceed on his claims for unjust enrichment and fraud.

Full Opinion

The Court denied a motion for a preliminary injuction and for appointment of a receiver, where the plaintiff claimed that transfers would be in violation of the Uniform Fraudulent Transfers Act. The Court determined that plaintiff was not a creditor and therefore could not obtain an injunction under the UFTA.  Plaintiff’s alleged equity interest did not entitle him to the rights of a creditor.  The Court furthermore found no evidence of a fraudulent transfer. 

Full Opinion

Plaintiff sought damages, as the representative of a class, for violation of the Federal Telephone Consumer Protection Act. The Court found that individualized issues would predominate, and that class certification therefore was not appropriate. The individual issues were whether any class member had given the defendant "express permission" to send the advertisement, and whether any class member had an "established relationship" with the defendant. Even though the record before the Court was devoid on such matters, it held that it would still be required to conduct an individualized inquiry and the Court refused certification.

Full Opinion

As the Court framed the issues, this case concerned: (a) whether refiners may be held liable for underground storage tank leaks or spills at sites they do not own (it held they could not), (b) what causes of action and statutes of limitation and repose apply to leaks or spills that contaminate drinking water under adjacent property (a cause of action does not arise until the contamination exceeds maximum concentration under state regulations, and a three year statute of limitations and a six year statute of repose applies, and regardless of the date of injury, all claims are barred by a ten year statute of repose) , and (c) what state regulations determine when drinking water is contaminated (it is not a question of taste and odor, it is when the concentration levels exceed state standards). The statutes of repose began to run at the time of the release.

Taste and odor is not the threshhold for giving rise to a cause of action. The doctrine of res ipsa loquitor was not applicable, as plaintiff could not establish that the defendant was the only possible tort feasor.

Plaintiff’s fraud claim was barred by the Noerr-Pennington doctrine, as the allegedly fraudulent statements were made by the defendants while petitioning while lobbying the federal government for the approval of an additive to gasoline.

Full Opinion