Buckley, LLP v. Series 1 of Oxford Ins. Co., NC, LLC

• Court: Supreme Court of North Carolina
• Decided: August 19, 2022
• Docket: 219A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-94

No. 219A21

Filed 19 August 2022

BUCKLEY, LLP

v.

SERIES 1 OF OXFORD INSURANCE COMPANY, NC, LLC

Appeal pursuant to N.C.G.S. § 7A-27(a)(3) from an order and opinion granting

in part and denying in part plaintiff’s and defendant’s motions to compel entered on

9 November 2020 by Judge Louis A. Bledsoe III, Chief Business Court Judge, in

Superior Court, Mecklenburg County, after the case was designated a mandatory

complex business case by the Chief Justice pursuant to N.C.G.S. § 7A-45.4(b). Heard

in the Supreme Court on 9 May 2022.

McGuire Woods LLP, by Mark W. Kinghorn for plaintiff-appellant.

Womble Bond Dickinson (US) LLP, by James P. Cooney III and G. Michael Barnhill, for defendant-appellee.

Patterson Harkavy LLP, by Paul E. Smith and Narendra K. Ghosh, and Winslow Wetsch, PLLC, by Laura J. Wetsch, for NC Advocates for Justice, amicus curiae.

Alston & Bird LLP, by Brian D. Boone for Chamber of Commerce of the United States of America and Association of Corporate Counsel, amicus curiae.

PER CURIAM. BUCKLEY LLP V. SERIES 1 OF OXFORD INS. CO., NC, LLC

Opinion of the Court

¶1 The order and opinion entered on 9 November 2020, from which this

interlocutory appeal is taken, is affirmed per curiam.

¶2 Under North Carolina law, to avail itself of attorney-client privilege, a party

seeking to shield a portion of a communication from disclosure must show, inter alia,

“the communication was made in the course of giving or seeking legal advice for a

proper purpose although litigation need not be contemplated.” In re Miller, 357 N.C.

316, 335 (2003) (quoting State v. McIntosh, 336 N.C. 517, 524 (1994)). “If [this]

element[] is not present in any portion of an attorney-client communication, that

portion of the communication is not privileged.” Id.

¶3 This Court recently affirmed a Business Court opinion stating that “[b]usiness

advice, such as financial advice or discussion concerning business negotiations, is not

privileged.” Window World of Baton Rouge, LLC v. Window World, Inc., 2019 NCBC

53, 2019 WL 3995941, at *25 (N.C. Super. Aug. 16, 2019), aff’d per curiam, 377 N.C.

551, 2021-NCSC-70, ¶ 1 (quoting N.C. Elec. Membership Corp. v. Carolina Power &

Light Co., 110 F.R.D. 511, 517 (M.D.N.C. 1986)). In Window World, the trial court

further stated that “North Carolina courts apply the protection of the attorney-client

privilege to in-house counsel in the same way that it is applied to other attorneys.”

2019 WL 3995941, at *25. In today’s business world, investigations of alleged

violations of company policy, including policies prohibiting sexual harassment or

discrimination, are ordinary business activities and, accordingly, the communications BUCKLEY LLP V. SERIES 1 OF OXFORD INS. CO., NC, LLC

made in such investigations are not necessarily “made in the course of giving or

seeking legal advice for a proper purpose.” In re Miller, 357 N.C. at 335 (quoting

McIntosh, 336 N.C. at 24). “When communications contain intertwined business and

legal advice, courts consider whether the ‘primary purpose’ of the communication was

to seek or provide legal advice.” Window World, 2019 WL 3995941, at *25.

¶4 Here the business court properly interpreted North Carolina law, including In

re Miller and Window World, by recognizing that the investigation by outside counsel

presented in this case had both business and legal purposes, conducting a detailed in

camera review of each disputed document, and mandating disclosure of all

communications that “were unrelated to the rendition of legal services,” while

protecting communications that “reflect a primary purpose of giving or receiving legal

advice.” Accordingly, the business court order is affirmed.

AFFIRMED.1

1 The order and opinion of the North Carolina Business Court, 2020 NCBC 81, is available at https://www.nccourts.gov/documents/business-court-opinions/buckley-llp-v- series-1-of-oxford-ins-co-nc-llc-2020-ncbc-81.