Wright Constr. Servs.

• Court: Court of Appeals of North Carolina
• Decided: December 29, 2022
• Docket: 21-583
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-914

No. COA21-583

Filed 29 December 2022

Mecklenburg County, No. 20 CVS 009628

WRIGHT CONSTRUCTION SERVICES, INC., et al., Plaintiffs,

v.

LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants.

Appeal by Defendants from order entered 30 July 2021 by Judge Donnie

Hoover in Mecklenburg County Superior Court. Heard in the Court of Appeals 22

March 2022.

Bell, Davis & Pitt, P.A., by Joshua B. Durham, Jason B. James, and Alan M. Ruley, for plaintiff-appellee.

Sigmon Law, PLLC, by Mark R. Sigmon, and Shumaker, Loop & Kendrick, LLP, by Steven A. Meckler and Daniel R. Hansen, for defendants-appellants.

MURPHY, Judge.

¶1 Ordinarily, where a subpoena is issued in North Carolina in connection with a

case tried in a different state pursuant to the North Carolina Uniform Interstate

Depositions and Discovery Act (“NCUIDDA”), N.C.G.S. § 1F-1, et seq., North Carolina

courts have subject matter jurisdiction over the discovery objections of a nonparty to

the underlying foreign action. However, since the attorney-client privilege always

belongs to the client, discovery objections based on the attorney-client privilege must

fall under the jurisdiction of the court where the underlying foreign suit is pending. WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

Opinion of the Court

Here, where Defendant’s counsel objected to discovery after being issued a subpoena

pursuant to the NCUIDDA in connection with an ongoing Missouri suit, the Missouri

court, not the trial court in North Carolina, had subject matter jurisdiction over the

objection, notwithstanding the fact that Defendant’s counsel objected only in its own

name.

BACKGROUND

¶2 This appeal arises out of a discovery request by Plaintiff Wright Construction

Services, Inc., associated with an interstate subpoena pursuant to the NCUIDDA.

The foreign action for which Plaintiff sought a subpoena in North Carolina was a

Missouri insurance dispute concerning whether Defendant Liberty Mutual, which

had issued performance and payment bonds to Plaintiff for a failed construction

project, had a right to indemnify Plaintiff for legal fees incurred resolving its claims.

¶3 During the Missouri action, Plaintiff sought discovery from Defendant,

including “all [Defendant’s] correspondence and communications with Shumaker,

Loop, & Kendrick[,] [LPP] [(“SLK”),]” the law firm representing Defendant in all

matters relevant to this case. In response, Defendant produced a ten-page privilege

log asserting the attorney-client privilege and work product doctrine. Plaintiff moved

to compel, arguing, inter alia, that (1) “[r]outine[] investigative documents,” of which

many of the requested documents allegedly are, “cannot be protected under the work

product doctrine” because SLK was operating in the capacity of a claims adjuster; (2) WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

the documents at issue were “created well before litigation was reasonably

foreseeable”; (3) Plaintiff alleged that it acted in good faith in part based on its

reliance on counsel, which waives the attorney-client privilege; and (4) “[c]ommon

sense requires that, in order to defend against the indemnity claim, [Plaintiff] should

obtain discovery into whether [Defendant] acted reasonably in incurring the charges

in the first place.” After an in camera review of five of the items, the Missouri trial

court denied the motion, ruling in an order entered 25 February 2021 that all of the

documents were protected under both the work product doctrine and the attorney-

client privilege.

¶4 However, on 1 November 2019, long before the Missouri court’s ruling on

Plaintiff’s motion to compel, the Missouri court entered a Commission to Serve

Subpoena for Testimony and the Production of Documents pertaining to SLK,

pursuant to which Plaintiff served a subpoena directly on SLK in Mecklenburg

County Superior Court in compliance with N.C.G.S. § 1F-3. See N.C.G.S. § 1F-3(a)-

(b) (2021) (“To request issuance of a subpoena under this section, a party must submit

a foreign subpoena to a clerk of court in the county in which discovery is sought to be

conducted in this State. A request for the issuance of a subpoena under this act does

not constitute an appearance in the courts of this State. . . . When a party submits a

foreign subpoena to a clerk of court in this State, the clerk, in accordance with that

court’s procedure, shall promptly open an appropriate court file, assign a file number, WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

collect the applicable filing fee pursuant to [N.C.G.S. §] 7A-305(a)(2), and issue a

subpoena for service upon the person to which the foreign subpoena is directed.”). In

doing so, Plaintiff sought “all documents” in SLK’s possession pertaining to the

construction bonds and the resulting litigation. SLK objected, and Plaintiff moved to

compel, with Plaintiff making substantially the same arguments as it made before

the Missouri court. However, unlike the Missouri court, which denied the motion

entirely, the North Carolina trial court granted the motion in part and denied it in

part, producing an itemized list of documents by privileged status. The resulting

order, entered 12 April 2021, provided that, “[t]o the extent [it] may conflict with the

Missouri [o]rder . . . the Missouri [o]rder shall control.”

¶5 The following day, on 22 April 2021, Defendant filed a Motion to Amend or

Clarify Order under Rule 52(b) arguing that, with respect to the conflict provision in

the trial court’s April order, all documents the trial court ruled were unprotected

conflicted with the Missouri order because the underlying theories Plaintiff used to

contest the privileged status of the documents in its North Carolina motion to compel

were substantially the same as those rejected by the Missouri trial court in its

Missouri motion to compel. On 11 May 2021, while that motion was pending,

Defendant appealed; and, in a separate order entered 30 July 2021, the trial court

clarified that this conflict provision referred only to direct conflicts between specific

documents. WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

¶6 Defendant timely appealed from the 30 July 2021 order.

ANALYSIS

¶7 On appeal, Defendant argues that (1) based on N.C.G.S. § 1F-1 et seq., the trial

court lacked subject matter jurisdiction over SLK’s discovery objection; (2) the trial

court erred by failing to make adequate findings of fact and conclusions of law with

respect to whether the documents at issue were privileged; and (3) the trial court

erred in holding that some of the documents were not protected by the work product

doctrine or the attorney-client privilege. For the reasons discussed below, we hold

the trial court lacked jurisdiction over SLK’s discovery objection, rendering the other

issues moot.

¶8 Defendant argues the trial court lacked subject matter jurisdiction to hear

SLK’s discovery objection because, under the terms of the NCUIDDA, only the

Missouri court may exercise subject matter jurisdiction over discovery objections.

Under N.C.G.S. § 1F-6,

[a]n application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under [N.C.G.S. §] 1F-3 must comply with the rules or statutes of this State and be submitted to the court in the county in which discovery is to be conducted. Where a dispute exists between the parties to the action, the party opposing the discovery shall apply for appropriate relief to the court in which the action is pending and not to the court in the state in which the discovery is sought.

N.C.G.S. § 1F-6 (2021). Defendant admits that “the North Carolina [trial] court has WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

jurisdiction to rule on objections from the non-party target of [a] subpoena[,]” but

contends that, in this case, because “[b]oth SLK and [Defendant] have objected to the

subpoena on privilege and work-product grounds[,]” the “trial court lacked

jurisdiction to rule on the objection, and the only court that can resolve Liberty’s

objections is the Missouri court.” In the alternative, Defendant argues that the

official comments to N.C.G.S. § 1F-6 indicate its terms should apply in cases such as

these where, in asserting a privilege, a party’s protection is contingent on the

privileged status of a non-party’s document. Plaintiff, meanwhile, argues that only

SLK, not Defendant, objected to the production of documents in North Carolina,

rendering N.C.G.S. § 1F-6 inapplicable.

¶9 At the threshold, we clarify that, as a factual matter on the Record, SLK’s

objection to document production appears to have been on its own behalf and not, in

any part, on Defendant’s. The only objection to the subpoena—tellingly entitled

Objection of Shumaker, Loop & Kendrick, LLP to Subpoena and Deposition Notice—

neither states nor implies that the objection is being made on behalf of Defendant in

a representative capacity. (Emphasis added.) Similarly, the response to Plaintiff’s

North Carolina motion to compel—entitled Shumaker Loop & Kendrick’s Brief in

Opposition to Plaintiff’s Motion to Compel—also makes no mention of speaking for

Defendant in a representative capacity. (Emphasis added.) On the other hand, both

documents explicitly identify the affected interests as those of SLK itself. WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

Accordingly, we must evaluate, in light of the fact that SLK objected to discovery only

on its own behalf, where jurisdiction over SLK’s objection exists under the NCUIDDA.

¶ 10 “Statutory interpretation properly begins with an examination of the plain

words of the statute.” Correll v. Div. of Soc. Servs., 332 N.C. 141, 144 (1992). Here,

N.C.G.S. § 1F-6’s language indicates that recourse to the court where the original

action is pending is required “[w]here a dispute exists between the parties to the

action[.]” N.C.G.S. § 1F-6 (2021) (emphasis added). Furthermore, it is well-

established in our canons of statutory interpretation that, “[u]nder the doctrine of

expressio unius est exclusion alterius, when a statute lists the situations to which it

applies, it implies the exclusion of situations not contained in the list.” Cooper v.

Berger, 371 N.C. 799, 810 (2018). Thus, we can infer that, by specifying that a

discovery dispute between parties to the underlying foreign case must be resolved in

the court where the original action is pending, the General Assembly intended that

disputes involving a nonparty to the underlying case be resolved domestically.

¶ 11 The official comments to N.C.G.S. § 1F-6 support this view. Very explicitly,

the example laid out in Comment 1 specifies where jurisdiction exists with respect to

both parties and nonparties to the underlying foreign case:

Example 1: A dispute is pending in Tennessee. Plaintiff, by issuance of a North Carolina subpoena in accordance with [N.C.G.S. §] 1F-3, notices the deposition of defendant’s ex-wife, who resides in North Carolina. During the deposition held in North Carolina, plaintiff asks a question WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

about information to which the joint spousal privilege applies. The attorneys for the ex-wife and defendant object on grounds of the spousal privilege. If plaintiff believes the privilege has been invoked inappropriately by the ex-wife, plaintiff must resort to the North Carolina court issuing the North Carolina subpoena, which would apply its laws on privilege and its conflicts of laws principles. However, to overcome defendant’s objection on grounds of the spousal privilege or to have that information admitted at trial, plaintiff must resort to the trial court in Tennessee, which would apply its own laws, including its conflicts of laws principles.

N.C.G.S. § 1F-6, N.C. cmt. 1 (2021). Comments, while not binding authority, are

highly persuasive. See Crowder Const. Co. v. Kiser, 134 N.C. App. 190, 206 (1999)

(“Consistent with the practice of our Supreme Court, we have given the Commentary

‘substantial weight[.]’”); Porter v. Beaverdam Run Condo. Ass’n, 259 N.C. App. 326,

332 (2018) (“In interpreting this statutory provision, we are guided by the Official

Comment to the statute[] . . . .”). Especially in cases where, as here, the North

Carolina Comments corroborate a plain reading of the statute, we see no reason to

deviate from the General Assembly’s guidance. Accordingly, we hold that a nonparty,

when objecting on its own behalf to a subpoena issued in North Carolina pertaining

to an underlying foreign case, is ordinarily subject to the jurisdiction of the trial court

in North Carolina.

¶ 12 However, having established the general rule under N.C.G.S. § 1F-6, our

inquiry is still incomplete as to the facts in this case. In the hypothetical posed by WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

North Carolina Comment 1, the subpoena issued to the non-party—the ex-wife—

seeks documents allegedly protected by the spousal privilege. N.C.G.S. § 1F-6, N.C.

cmt. 1 (2021). The ex-wife then objects on her own behalf, which results in North

Carolina having jurisdiction over the objection. Id. Critically, not only does the ex-

wife in this scenario in fact object to discovery on her own behalf, but she also raises

the spousal privilege—a privilege conceptually belonging, at least in part, to her. See

State v. Godbey, 250 N.C. App. 424, 430 (2016) (marks omitted) (emphasis added)

(“The marital communications privilege is premised upon the belief that the marital

union is sacred and that its intimacy and confidences deserve legal protection.

Whatever is known by reason of that intimacy should be regarded as knowledge

confidentially acquired, and neither spouse should be allowed to divulge it to the

danger or disgrace of the other.”) (quoting State v. Rollins, 363 N.C. 232, 236 (2009),

and Hicks v. Hicks, 271 N.C. 204, 205 (1967)).

¶ 13 Not so here. Although, like the ex-wife in North Carolina Comment 1, SLK

objected strictly in its own name, see supra ¶ 9, the privilege it invoked does not

conceptually belong to it or exist for its benefit. Rather, “[t]he law of privileged

communications between attorney and client is that the privilege is that of the client.

He alone is the one for whose protection the rule is enforced.” In re Miller, 357 N.C.

316, 339 (2003) (emphasis in original). In other words, SLK’s objection, though in its

own name, was not for its own benefit; instead, SLK’s objection to the production of WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

documents pertaining to Defendant’s representation must necessarily have been for

Defendant’s benefit, as the privilege belongs to Defendant alone. See Crosmun v.

Trustees of Fayetteville Tech. Cmty. Coll., 266 N.C. App. 424, 440 (2019) (“[The

attorney-client privilege] is the client’s alone[;] . . . ‘[i]t is not the privilege of the court

or any third party.’”) (quoting id. at 338) (emphasis in original).

¶ 14 This, we believe, renders the case at bar distinguishable from the scenario

posited in North Carolina Comment 1. While North Carolina courts will ordinarily

have jurisdiction over the discovery objections of a nonparty to the underlying foreign

action when a subpoena is issued pursuant to N.C.G.S. § 1F-1, et seq., see supra ¶¶

10-11, this general rule does not apply to an attorney objecting on the basis that

documents pertaining to her client’s representation are privileged. Instead, because

the attorney-client privilege always belongs to the client and the client alone,

discovery objections based on the client’s privilege—even where purportedly invoked

only in the name of the attorney—are necessarily “dispute[s] [] between the parties

to the action” and must therefore fall under the jurisdiction of the court where the

underlying foreign suit is pending. N.C.G.S. § 1F-6 (2021). Accordingly, pursuant to

N.C.G.S. § 1F-6, the Missouri court, not the trial court in North Carolina, had subject

matter jurisdiction over SLK’s objection, notwithstanding the fact that SLK objected

only in its own name.

¶ 15 Having determined the trial court lacked subject matter jurisdiction, the WRIGHT CONSTR. SERVS., INC. V. LIBERTY MUT. INS. CO

parties’ remaining arguments are moot. Furthermore, as “the court must [] have

subject matter jurisdiction[] . . . in order to decide a case[,]” we must vacate the order

of the trial court and dismiss the case. In re T.R.P., 360 N.C. 588, 590 (2006). SLK

must obtain a ruling on its objection by seeking a valid order on the privileged status

of the documents at issue from the Missouri court.

CONCLUSION

¶ 16 Under the NCUIDDA, the trial court lacked subject matter jurisdiction over

SLK’s objection and therefore lacked the authority to enter the challenged order.

Accordingly, we vacate the order and dismiss the case.

VACATED AND DISMISSED.

Judges INMAN and GRIFFIN concur.