Referees

16.1. Appointment and removal. At the Case Management Meeting, the parties must discuss the potential benefit of a referee and summarize their views in the Case Management Report. In addition to that discussion and report, any party may file a motion for the appointment of a referee pursuant to these rules and to Rule 53 of the Rules of Civil Procedure. The motion should comply with Rule 53 of the Rules of Civil Procedure and also contain the following: (a) (b) (c) the proposed scope of the referee’s authority and tasks; the grounds for reference under Rule 53(a) of the Rules of Civil Procedure, including, if any party has not joined in or consented to the motion, a statement of the circumstances that warrant compulsory reference pursuant to Rule 53(a)(2) of the Rules of Civil Procedure; the names and qualifications of any candidates that the Court should consider as a referee, as well as a statement as to whether the parties consent to each candidate; 37 TOC Rule 16 (d) (e) (f) the referee’s proposed compensation and the source of the compensation; any requests for special powers to be provided under Rule 53(e) of the Rules of Civil Procedure; and if any party has not joined in or consented to the motion, then a certification that counsel for the moving party has consulted with counsel for all non-moving parties and a statement of the position of any non-moving parties. The Court may appoint a referee on its own motion as provided in Rule 53(a)(2) In appropriate cases when reference is not of the Rules of Civil Procedure. compulsory, the Court may recommend to the parties the use of a referee if the referee would aid judicial economy. 16.2. Discovery referees. Counsel are encouraged to give special consideration to the appointment of discovery referees, particularly in cases expected to involve large amounts of ESI or when there may be differing views regarding the use of keyword searches, utilization of predictive coding, or the shifting or sharing of costs associated with large-scale or costly discovery. The parties are encouraged to be creative and flexible in utilizing discovery referees to avoid unnecessary cost and motion practice before the Court. 16.3. Scope of referee’s duties. When appointing a referee, the Court will enter an order that outlines the referee’s duties, powers, compensation, and any other issues relevant to the proposed work of the referee. Appendix 4 to these rules contains a non-exclusive list of terms that might be appropriate for an order that appoints a referee. 16.4. Agreement to submit to referee’s final decision. When a referee issues a final report, the parties may agree to forgo judicial review of that report. This type of agreement must be embodied in a stipulation filed with the Court that (i) specifies the case, proceeding, claim, or issue to be submitted to the referee for final decision; (ii) states that the parties to the stipulation waive the right to seek further judicial review of the referee’s decision; and (iii) recites that each party has consulted with counsel and agreed to the submission of the case, proceeding, claim, or issue to the referee for a final decision that will not be reviewable. For the stipulation to take effect, the Court must approve the stipulation. History Note. 372 N.C. 911; 372 N.C. 844. 38 TOC Appendixes Appendix 1. Notice of Designation Template STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE COUNTY OF ___________ JOHN DOE, Plaintiff, v. ABC CORPORATION, Defendant. SUPERIOR COURT DIVISION CIVIL ACTION NO.: NOTICE OF DESIGNATION Pursuant to N.C.G.S. § 7A-45.4, [INSERT PARTY] seeks to designate the above-captioned action as a mandatory complex business case. In good faith and based on information reasonably available, [INSERT PARTY], through counsel, hereby certifies that this action meets the criteria for: _____ Designation as a mandatory complex business case pursuant to N.C.G.S. § 7A-45.4(a), in that it involves a material issue related to: _____ (1) Disputes involving the law governing corporations, except charitable and religious organizations qualified under N.C.G.S. § 55A-1-40(4) on the grounds of religious purpose, partnerships, and limited liability companies, including disputes arising under Chapters 55, 55A, 55B, 57D, and 59 of the General Statutes. _____ (2) Disputes involving securities, including disputes arising under Chapter 78A of the General Statutes. _____ (3) Disputes involving antitrust law, including disputes arising under Chapter 75 of the General Statutes that do not arise solely under N.C.G.S. § 75-1.1 or Article 2 of Chapter 75 of the General Statutes. _____ (4) Disputes involving trademark law, including disputes arising under Chapter 80 of the General Statutes. 39 TOC Appendix 1 _____ (5) Disputes involving the rights to or performance of including computer software, intellectual property, software applications, technology and systems, data and data security, pharmaceuticals, biotechnology products, and bioscience technologies. information _____ (8) Disputes involving trade secrets, including disputes the arising under Article 24 of Chapter 66 of General Statutes. _____ (9) Contract disputes in which all of the following conditions are met: (a) (b) (c) (d) At least one plaintiff and at least one defendant is a corporation, partnership, or limited liability including any entity authorized to company, in North Carolina under transact business Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes. The complaint asserts a claim for breach of contract or seeks a declaration of rights, status, or other legal relations under a contract. The amount in controversy computed in accordance with N.C.G.S. § 7A-243 is at least one million dollars ($1,000,000). All parties consent to the designation. [If all parties have not consented, indicate that the Notice of Designation is conditional pursuant to BCR 2.5.] _____ Designation as a mandatory complex business case pursuant to N.C.G.S. § 7A-45.4(b), in that it is: _____ (1) An action involving a material issue related to tax law that has been the subject of a contested tax case for which judicial review is requested under N.C.G.S. § 105-241.16, or a civil action under N.C.G.S. § 105-241.17 containing a constitutional challenge to a tax statute. _____ (2) An action described in subsection (1), (2), (3), (4), (5), or (8) of N.C.G.S. § 7A-45.4(a) in which the amount in controversy computed in accordance with N.C.G.S. § 7A-243 is at least five million dollars ($5,000,000). _____ (4) An action in which a general receiver is sought to be appointed pursuant to N.C.G.S. § 1-507.24 for a debtor that is not an individual business debtor as defined in 40 TOC Appendix 1 N.C.G.S. § 1-507.20 and has assets having a fair market value of not less than five million dollars ($5,000,000), if the party making the designation is either (i) the debtor or (ii) one or more creditors or creditors’ duly authorized representatives that assert a claim or claims against the debtor exceeding, in the aggregate, twenty-five thousand dollars ($25,000) that in each case is not contingent as to liability and is not the subject of a bona fide dispute as to liability or amount. Any creditor or creditor’s duly authorized representative that is not a party to the action may join in the notice of designation with the same effect as if such joining creditor or creditor’s representative were a party. _____ (5) An appeal of a decision of the North Carolina Oil and Gas Commission concerning trade secret or confidential information as provided in N.C.G.S. § 113-391.1. Briefly explain why the action falls within the specific categories checked above and provide information adequate to determine that the case has been timely designated (e.g., dates of filing or service of the complaint or other relevant pleading). If necessary, include additional information that may be helpful to the Court in determining whether this case is properly designated a mandatory complex business case. Attach a copy of all significant pleadings filed to date in this action (e.g., the complaint and relevant pending motions). [INSERT DATE AND SIGNATURE BLOCKS] History Note. 372 N.C. 911; 372 N.C. 844; 374 N.C. 945; Order Dated 20 August 2025. Editor’s Note. The subsections in this Notice of Designation Template correspond to the subsections of N.C.G.S. § 7A-45.4. Accordingly, subsections (a)(6) and (a)(7) are omitted in the template because those subsections have been repealed in the statute. 41 TOC Appendix 2 Appendix 2. Case Management Report Template STATE OF NORTH CAROLINA COUNTY OF ___________ JOHN DOE, Plaintiff, v. ABC CORPORATION, Defendant. IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION CIVIL ACTION NO.: CASE MANAGEMENT REPORT The undersigned counsel of record began the Case Management Meeting on [INSERT DATE] and submit this report on [INSERT DATE] as required by BCR 9. 1. Summary of the case. Each party (or group of parties represented by common counsel) should summarize the dispute from its (or their) perspective. No summary by any party or group of parties may exceed 250 words. The parties may also agree on a joint summary not to exceed 500 words. 2. Initial motions. This section of the report should list whether any party plans to file a motion for emergency relief, a motion to dismiss, or any other early-stage motion. The party that plans to file the motion may provide a short explanation of the basis for the motion. That party should also list the projected date on which the motion will be filed. The report should reference any proposed modification of the time requirements or word limits for briefing. This section should also discuss whether the parties have agreed on any deadlines for amending the pleadings or adding parties and what the impact of those deadlines would be. 42 TOC Appendix 2 3. Discovery. This section should summarize the parties’ agreement and/or competing proposals for discovery. The section should cover at least the following topics: • • • • • • a proposed discovery schedule; an ESI protocol; limits on written discovery and depositions; any agreements related to privilege logs; any agreement about the effects of the inadvertent waiver of attorney-client privilege or attorney work-product; and expert discovery. One or more parties may also ask the Court in the report to postpone creating a discovery schedule until after the Court decides any initial motions, including but not limited to motions to dismiss. This section should also state whether the parties have completed their full discussion of discovery management or whether they have scheduled a second discovery-management meeting. If the parties have scheduled a second meeting, then the report must indicate which topics remain for discussion at the second meeting and identify the time by which a further report must be filed with the Court. 4. Confidentiality. The report should indicate which parties, if any, anticipate the need for a protective order. If the parties agree that a protective order should be entered but do not agree on the terms of that order, the report should explain the nature of the disagreement and any specific language in dispute. 43 TOC Appendix 2 5. Mediation. The report must explain whether the parties agree to early mediation and any agreements reached to facilitate an early mediation. If the parties do not agree to early mediation, then the report must confirm that counsel have discussed with their client(s) the cost of litigation and the potential cost savings that may be realized by an early mediation. In any event, the report must include a deadline for mediation (or competing proposals) and the name of the agreed-upon mediator. If the parties do not agree on a mediator, then the report should list each party’s choice of mediator. 6. Special circumstances. (a) Class allegations. If the complaint includes class action allegations, then the report should summarize the parties’ agreement and/or competing proposals for the timing, nature, and extent of class certification discovery, how and/or whether class and merits discovery should be bifurcated or sequenced, and a proposed deadline for the plaintiff(s) to move for class certification. In the event that multiple related class actions are pending, the parties must report their views on special efforts that should be undertaken and the time for doing so, such as the appointment of lead counsel, consolidation, or coordination with proceedings in other jurisdictions. (b) Derivative claims. If the complaint includes derivative claims, then the report should summarize the parties’ positions on 44 TOC Appendix 2 whether proper demand was made. The report should also describe any agreement and/or competing proposals on any special committee investigation, any stay of proceedings, or other issues regarding the derivative claims. (c) Related proceedings. If there are multiple related proceedings, then the parties should state their views on what efforts, including but not limited to consolidation or shared discovery, should be undertaken. 7. Referees. The report should identify any matter(s) that might be appropriate for reference to a referee. The parties are specifically encouraged to think creatively about how the use of a referee might expedite the resolution of the case. 8. Potential cost and time requirements of litigation. Counsel should certify that they have conferred with their respective clients and have given their clients a good-faith estimate of the potential cost and time requirements of the litigation. 9. Other matters. The report should identify and discuss any other matters significant to case management. [INSERT DATE AND SIGNATURE BLOCKS] History Note. 372 N.C. 911; 372 N.C. 844. 45 TOC Appendix 3 Appendix 3. [Reserved] History Note. 372 N.C. 911; 372 N.C. 844; 381 N.C. 886. 46 TOC Appendix 4 Appendix 4. Potential Terms of Order Appointing Referee This appendix contains potential terms for an order under BCR 16.3. 1. Transcription. The Court may order that, when a referee receives witness testimony: • • • • the testimony be transcribed by a court reporter and filed in the action pursuant to Rule 53(f)(3) of the Rules of Civil Procedure; any request to transcribe a proceeding be made at least fourteen days before the proceeding; if the referee or the Court requires transcription, then all parties to the proceedings share equally in the transcription costs; and if a request for transcription is not joined in by all of the parties to a case, then only those parties that request transcription will be responsible for transcription costs. 2. Reports and exceptions. (a) Final written report. The Court may order the referee to issue a final written report as described in Rule 53 of the Rules of Civil Procedure. (b) Draft report. The Court may require the referee to provide the parties with a report in draft form. The Court may allow parties to submit exceptions to the draft report to the referee within a particular deadline and to allow responses to the exceptions within a deadline. (c) Exceptions to final report. The Court may require that exceptions to a final report be heard exclusively by the Court. The Court may set a deadline for exceptions to final reports. 3. Compensation. The Court may specify the terms of a referee’s compensation. The Court may require that applications for advancements made pursuant to Rule 53(d) of the Rules of Civil Procedure be made by the referee in writing and served on all parties. The Court may also set a deadline for any objections to the requested advancement. History Note. 372 N.C. 911; 372 N.C. 844. 47 TOC Appendix 5 Appendix 5. Proposed Pretrial Order Template STATE OF NORTH CAROLINA COUNTY OF ___________ JOHN DOE, Plaintiff, v. ABC CORPORATION, Defendant. IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION CIVIL ACTION NO.: PROPOSED PRETRIAL ORDER Pursuant to Rule 16 of the North Carolina Rules of Civil Procedure and BCR 12.4, the parties participated in a pretrial conference on [INSERT DATE] and now submit this pretrial order. 1. Stipulations. The parties should list stipulations on subject-matter jurisdiction, personal jurisdiction, joinder of parties, and any other salient legal and/or procedural issues on which they agree. 2. Exhibits. The parties should attach their exhibit lists to the pretrial order. The parties should also cover at least the following topics related to exhibits: • • • whether any party objects to the admission of any exhibit(s); whether any party objects to the authenticity of any exhibit(s); and the timing and manner of the exchange of demonstrative exhibits including whether demonstrative exhibits will be used in opening statements. 48 TOC Appendix 5 3. Witnesses and deposition designations. The order should contain each party’s list of potential trial witnesses. The lists should identify witnesses whose testimony will be presented by deposition. The parties should also attach deposition designations, counter-designations, and related objections. 4. Motions. The parties should list any outstanding motions and any motions that might be filed before or during trial. The list should include pending or anticipated motions in limine. 5. Issues. The parties should list the issues to be tried, noting which issues the jury will decide and which issues the Court will decide. The parties should also describe any disagreement related to these matters. 6. Courtroom technology and other accommodations. The parties should describe the technology that they intend to use during trial. For each technology, the parties should clarify who (the parties or the Court) will provide the technology and, if applicable, how the parties will apportion the cost of the technology. The parties should also list any case-specific accommodations needed for trial, as described in BCR 12.5(i). 7. Length and readiness. The parties should estimate how long the trial will last. If the parties disagree on the estimate, then each party should give its own estimate. The parties should also state that all potential trial witnesses are available and that the case is trial-ready. 8. Settlement. The parties should certify that they engaged in a meaningful settlement discussion—including the exchange of potential settlement 49 TOC Appendix 5 terms—during the pretrial conference. The parties should immediately notify the Court in the event of a material change in settlement prospects. [INSERT SIGNATURES OF ALL PARTICIPATING COUNSEL] History Note. 372 N.C. 911; 372 N.C. 844. 50 A Publication Record of the Business Court Rules TOC Reporter Volume Page(s) Rules Affected Key Dates* 372 N.C. 911–63 Complete Rule Set 372 N.C. 844–95 Complete Rule Set 374 N.C. 945–48 Rule 11; Appendix 1 375 N.C. 1029–33 Rule 3 Ordered 20 December 2016 Effective 1 January 2017 Ordered 11 June 2019 Effective 1 July 2019 Ordered 26 February 2020 Effective 1 March 2020 Ordered 13 October 2020 Effective 13 October 2020 381 N.C. 886–911 Rules 3, 5, 6, 7, 12, 15; Appendix 3 Ordered 15 June 2022 Effective 1 July 2022 * The type of date provided for each published entry (e.g., “Adopted,” “Effective,” “Ordered”) reflects the information that was preserved in the North Carolina Reports. Current Slip Orders Rules Affected Key Dates Order Dated 20 August 2025 Rules 4, 7; Appendix 1 Ordered 20 August 2025 Effective 2 September 2025 Document ID North Carolina Business Court Rules – Codified 2 September 2025 51 [email protected] www.NCcourts.gov/courts/supreme-court