Discovery

10.1. General principles. The parties should cooperate to ensure that discovery is conducted efficiently. Courtesy and cooperation among counsel advances, rather than hinders, zealous representation. 10.2. Document preservation. As soon as practicable, but no later than seven days before the Case Management Meeting described in BCR 9.1, counsel must discuss with their clients: (a) which custodians might have discoverable electronically stored information (ESI); (b) (c) (d) the sources and location of potentially discoverable ESI; the duty to preserve potentially discoverable materials; and the logistics, burden, and expense of preserving and collecting those materials. These requirements do not supplant any substantive preservation obligations that might be established by other sources of law. 10.3. Discovery management. Counsel are required, if possible, to fully discuss discovery management at the Case Management Meeting. As stated in BCR 9.1(d), the parties may conduct a second meeting, no later than thirty days after the Case Management Meeting, to complete their discussion of discovery 23 TOC Rule 10 management. The topics to be discussed include those found in BCR 10.3 through 10.8. Overall, BCR 10.3 through 10.8 are designed for the parties to set expectations, with reasonable specificity, about what information each party seeks and about how that information will be retrieved and produced. The parties should discuss at least the following topics: (a) Proportionality. Counsel should discuss the scope of discovery, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, the burden and expense of the expected discovery compared with its likely benefit, the importance of the issues at stake in the litigation, and the importance of the discovery for the adjudication of the merits of the case. (b) Phased discovery. Counsel should consider whether phased discovery is appropriate and, if so, discuss proposals for specific phases. (c) ESI. Counsel should prepare an ESI protocol—an agreement between the parties for the identification, preservation, collection, and production of ESI. The ESI protocol will vary on a case-by-case basis, but the discussion about ESI should include at least the following subjects: (1) the specific sources, location, and estimated volume of ESI; (2) whether ESI should a custodian-by-custodian basis and, if so, (i) the identity and number of the custodians whose ESI will be searched, and (ii) search parameters; searched on be (3) (4) (5) a method for designating documents as confidential; plans and schedules for any rolling production; deduplication of data; (6) whether any device(s) need to be forensically examined and, if so, a protocol for the examination(s); (7) (8) (9) the production format of documents; the fields of metadata to be produced; and how data produced will be transmitted to other parties (e.g., in read-only media; segregated by source; encrypted or password protected). Counsel should jointly prepare a written discovery protocol promptly after they complete their discovery-management 24 TOC Rule 10 discussions. The discovery protocol should not be filed with the Court unless otherwise ordered. 10.4. Presumptive limits. (a) Discovery period. These rules do not discourage the parties from beginning discovery before entry of the Case Management Order, but the presumptive discovery period, including both fact and expert discovery, is seven months from the date of the Case Management Order. That period may be lengthened or shortened in consideration of the claims and defenses of any particular case, but any significantly longer discovery period will require good cause. Each party is responsible for ensuring that it can complete discovery within the time period in the Case Management Order. In particular, interrogatories, requests for production, and requests for admission should be served early enough that answers and responses will be due before the discovery deadline ends. Absent extraordinary cause, a motion that seeks to extend the discovery period or to take discovery beyond the limits in the Case Management Order must be made before the discovery deadline. The motion must explain the good cause that justifies the relief sought. The motion must also demonstrate that the parties have pursued discovery diligently. (b) Written discovery. Unless otherwise permitted by the Court, a party may serve no more than twenty-five interrogatories on each party. Each subpart of an interrogatory counts as a separate interrogatory for purposes of this limit. The same limit applies to requests for admission. (c) Depositions. A party may take no more than twelve fact depositions in the absence of an order by the Court. For purposes of counting depositions taken by any party, for depositions conducted pursuant to Rule 30(b)(6) of the Rules of Civil Procedure, each period of seven hours of testimony will count as a single deposition, regardless of the number of designees presented during that seven-hour period. (d) Agreement, reduction, and modification of limits. The Court encourages the parties to agree, where appropriate, on reductions above. The presumptive limits will be increased only upon a showing of good cause. the presumptive stated limits to 25 TOC Rule 10 If the parties agree to conduct discovery after the discovery deadline, but the parties do not seek an order that allows the discovery, then the Court will not entertain a motion to compel or a motion for sanctions in connection with that discovery. 10.5. Privilege logs. (a) Purpose. This rule supplements Rule 26(b)(5) of the Rules of Civil Procedure. (b) Form. Parties are encouraged to agree on the form of privilege logs and on the date on which privilege logs will be served. The parties should select a format that limits unnecessary expense and burden of producing a privilege log. Each privilege log should be organized in a manner that facilitates a discussion among counsel on whether documents contain privileged or work-product material. The parties should discuss specifically (i) whether particular categories of documents—such as any attorney-client attorney work-product material generated after the action began, or communications on a certain subject—should be omitted from privilege logs, and (ii) whether entries in the privilege log should be arranged by topic or category. communications privileged or 10.6. Agreements to prevent privilege and work-product waiver. The Court encourages the parties to agree to an order that provides for the non-waiver of the attorney-client privilege or work-product protection in the event that privileged or work-product material is inadvertently produced. 10.7. Depositions. (a) Time limits. Unless the parties agree otherwise, a deposition is limited to seven hours of on-the-record time. The Court may extend any seven-hour period for good cause. (b) Conduct. (1) (2) Counsel should cooperate to schedule depositions. Counsel must not direct a witness to refrain from answering a question unless one or more of the following three situations applies: (i) counsel objects to the question on the ground that the answer is protected by a privilege or another discovery immunity, (ii) counsel proceeds immediately to seek relief under Rules 26(c) or 37(d) of the Rules of Civil Procedure, or (iii) counsel objects to a question that seeks information in contravention of a court-ordered limitation on discovery. 26 TOC Rule 10 (3) Objections should be succinct and state only the basis for the objection. The Court does not tolerate speaking objections. (4) (5) Counsel and any witness may not engage in private, off-the-record conferences while a question is pending, except to decide whether to assert a privilege, discovery immunity, or court-ordered limitation on discovery. The Court may impose an appropriate sanction, including the reasonable attorney’s fees incurred by any party, based on conduct that impedes, delays, or frustrates the fair examination of a deponent. (c) Exhibits. (1) A copy of any document shown to a deponent must be provided to counsel for each party either before the deposition starts or at the same time that the document is given to the deponent. (2) Deposition exhibits should be numbered consecutively throughout discovery without restarting numbers by the deposition being taken or by the party that introduces the exhibit. When there is the potential for simultaneous depositions, the parties should allocate a range of potential exhibit numbers among the parties. To the extent practical, once assigned an exhibit number, a document utilized during a deposition should retain that deposition exhibit number in all subsequent discovery. (d) Depositions under Rule 30(b)(6) of the Rules of Civil Procedure. (1) (2) (3) (4) After a party serves a deposition notice under Rule 30(b)(6) of the Rules of Civil Procedure, the organization to which the notice is issued should present any objections to the noticing party within a reasonable time of service and sufficiently in advance of the deposition. Counsel for the noticing party and for the organization to which the notice was issued must then meet and confer in good faith to resolve any disputes over the topics for the deposition. If the parties cannot agree, then the dispute will be resolved under the procedures described in BCR 10.9. The parties should also discuss and attempt to agree on whether a deponent under Rule 30(b)(6) of the Rules of 27 TOC Rule 10 Civil Procedure may be asked questions about the deponent’s personal knowledge. Absent an agreement to the contrary, any deposition of a designee under Rule 30(b)(6) of the Rules of Civil Procedure in his or her individual capacity should be taken separately from the deposition under Rule 30(b)(6) of the Rules of Civil Procedure. (5) See BCR 10.4(c) for the manner of counting depositions taken under Rule 30(b)(6) of the Rules of Civil Procedure. 10.8. Expert discovery. (a) Procedures. The parties must attempt to agree on procedures that will govern expert discovery including any limits on the number of experts and/or the number of expert depositions. In the absence of agreement, the Case Management Report should list the parties’ respective positions on expert discovery. The parties may elect to exchange disclosures only, or they may elect to exchange reports in addition to or instead of disclosures. The procedures may include, but are not limited to, the following: (1) Expert reports. If the parties elect to exchange expert reports as allowed by Rule 26(b)(4) of the Rules of Civil Procedure, then the parties are encouraged to agree that the name of each expert, the subject matter on which the expert is expected to testify, and the expert’s qualifications be exchanged thirty days prior to service of the report. (2) (3) Timing and manner of disclosure. If the parties elect not to exchange expert reports, then they are still encouraged to agree on a schedule for exchange of expert information in the form of expert disclosures. In the absence of an agreement, the Court will establish a sequence in the Case Management Order. Facts and data considered by the witness. The parties should attempt to agree on whether and when they will provide copies of previously unproduced materials that an expert witness considers in forming his or her opinion. (b) Expert depositions. Unless the parties agree otherwise, each expert witness may be deposed by a party adverse to the party designating the expert. The expert witness is only subject to a single deposition at which all adverse parties may appear. 10.9. Discovery motions. (a) Application. This rule applies to motions under Rules 26 through 37 and Rule 45 of the Rules of Civil Procedure. 28 TOC Rule 10 References to “party” or “parties” in this rule include non-parties subject to subpoena under Rule 45 of the Rules of Civil Procedure. (b) Pre-filing requirements. (1) Summary of dispute. Before filing a motion related to discovery, a party must engage in a thorough, good-faith attempt to resolve or narrow the dispute. If the dispute remains unresolved, then the party seeking relief must e-mail a summary of the dispute to the judicial assistant and law clerk for the presiding Business Court judge and to opposing counsel. The summary may not exceed 700 words; the certificate described in BCR 10.9(b)(2) does not count against this limit. Any other party may submit a response to the summary; the response may not exceed 700 words (excluding the response to the certificate) and must be e-mailed to the judicial assistant and law clerk for the presiding Business Court judge and to opposing counsel within seven calendar days of when the initial summary was e-mailed. Word limits are to be calculated in accordance with BCR 7.8. No replies are allowed. (2) Certification of good-faith effort to resolve the dispute. A dispute summary under BCR 10.9(b)(1) must include a certification that, after personal consultation and diligent attempts to resolve differences, the parties could not resolve the dispute. The certificate must state the date(s) of the conference, which attorneys participated, and the specific results achieved. The certificate must say, if applicable, whether the parties discussed cost-shifting, proportionality, or alternative discovery methods that might resolve the dispute. This certificate may not exceed 300 words. The response by any other party under BCR 10.9(b)(1) may include a response, not to exceed 200 words, to the substance of the certificate. (3) Telephone conference among counsel and the presiding Business Court judge. After the summary, certificate, and any response(s) are submitted, the Court may schedule a telephone conference with counsel to discuss the dispute, order the parties to file a motion and brief regarding the dispute or provide additional materials, or issue an order that decides the issues raised or that provides the parties with further instructions. If the Court elects to conduct a telephone conference, the Court may decide the parties’ dispute during the conference. 29 TOC (c) Rule 10 Briefs on discovery motions. If, after the Court conducts a telephone conference under BCR 10.9(b)(3), the parties still cannot resolve their dispute or if the Court declines to rule on the dispute, then a party may file a discovery motion. The requirements of BCR 7 apply to any such motion, except that (i) the Court may modify the briefing schedule and limits on briefs in its instructions after the BCR 10.9(b)(3) conference, (ii) the supporting brief and any responsive brief may each not exceed 3,750 words unless the Court orders otherwise, and (iii) reply briefs will only be permitted if the Court requests on its own initiative or grants a moving party leave to file a reply upon a showing of good cause. (d) Cost-shifting requests. If a party contends that cost shifting is warranted as to any discovery sought, then the party’s brief should address estimated costs of responding to the requests and the proportionality of the discovery sought. Counsel’s estimate must have a reasoned factual basis, and the Court may require that any such basis be demonstrated by affidavit. (e) Depositions. This rule does not preclude parties from seeking an immediate ruling by telephone from the Court on any dispute that arises during a deposition that justifies such a conference with the Court. History Note. 372 N.C. 911; 372 N.C. 844.