Berens v. Berens , 247 N.C. App. 12 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-230
Filed: 19 April 2016
Mecklenburg County, No. 13 CVD 11484
MICHAEL M. BERENS, Plaintiff,
v.
MELISSA C. BERENS, Defendant.
Appeal by Defendant from order entered 18 November 2014 by Judge David H.
Strickland in Mecklenburg County District Court. Heard in the Court of Appeals 23
September 2015.
Horack Talley Pharr & Lowndes, P.A., by Christopher T. Hood and Gena G.
Morris, for Plaintiff-Appellee.
Wyrick Robbins Yates & Ponton LLP, by Michelle D. Connell, and Tom Bush
Law Group, by Tom J. Bush, for Defendant-Appellant.
Thurman, Wilson, Boutwell & Galvin, P.A., by John D. Boutwell, for Brook
Adams
INMAN, Judge.
This appeal presents the question of whether a party to litigation who engages
her friend as an agent to participate in meetings with her attorney waives the
protections of attorney-client communications and attorney work product for
information arising from the meeting with her attorney and any work product created
with the assistance of or shared with the agent as a result of those meetings. Based
on our caselaw and the record here, the answer in this case is no.
BERENS V. BERENS
Opinion of the Court
Defendant-Appellant Melissa Berens (“Defendant”) appeals the interlocutory
order denying her request for a protective order and her motion to quash Plaintiff-
Appellee Michael Berens’s (“Plaintiff’s”) subpoena duces tecum to Brooke Adams
Healy (“Ms. Adams”) compelling production of all documents relating to Ms. Adams’s
communications with Defendant; her communications with the Tom Bush Law Group
(“the law firm”), the firm representing Defendant in her divorce; and her
communications with any third party regarding “one or more members of the Berens
family” and the legal proceedings that are the subject of the underlying divorce case.
On appeal, Defendant argues that Plaintiff’s subpoena to Ms. Adams seeks
information protected by the attorney-client privilege and by the work product
doctrine because Ms. Adams was Defendant’s agent. Consequently, according to
Defendant, Ms. Adams’s presence during Defendant’s meetings with her attorney did
not waive the privileges nor did her involvement in the preparation of materials for
litigation defeat the privileges. Defendant also contends that the subpoena exceeds
the scope of Rule 45 of the North Carolina Rules of Civil Procedure.
After careful review, we reverse the trial court’s order and remand for
proceedings consistent with this opinion.
Factual and Procedural Background
Plaintiff and Defendant were married on 23 September 1989 and separated on
20 July 2012. Six children were born of the marriage. On 4 June 2014, the trial court
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Opinion of the Court
entered a temporary parenting arrangement order in an effort to best address each
child’s needs. In it, the court noted that there were several allegations that Plaintiff
had engaged in physical confrontations with his children, including one incident in
which Plaintiff grabbed one child and pushed him up against the wall. The court
found that all the children have complained about “Plaintiff/Father acting weird or
creepy,” citing several instances of Plaintiff’s inappropriate attempts at jokes or
inappropriate behavior when he does not “get his way.” The court also stated that
when “[Plaintiff] does not get his way, he acts inappropriately, gets up and has ‘mini
explosions.’”
The trial court held that it was in the children’s best interest that Plaintiff
have temporary supervised parenting only with the two youngest children and no
contact with the four oldest children. The court calendared the permanent child
custody trial to begin on 1 December 2014.
Prior to the trial, on 9 September 2014, Plaintiff’s counsel issued a subpoena
duces tecum to Ms. Adams. Ms. Adams, an attorney who is now on inactive status
with the North Carolina State Bar, is a friend of Defendant’s and asserted in an
affidavit that she had been “acting as a consultant/agent on behalf of [Defendant] and
the Tom Bush Law Group, and acting in a supporting role for [Plaintiff].” Ms. Adams
stated that her friendship with Defendant began prior to the current proceedings. As
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Opinion of the Court
part of her role as a consultant and agent of Defendant, Ms. Adams stated that she
had
attended meetings with [Defendant] and her attorneys and
[has] had access to various documents and tangible things,
including. . . emails and documents from and to
[Defendant], her attorneys and/or other
consultants/experts; correspondence and documents form
and to [Defendant], her attorneys and/or other
consultants/experts; notes of meetings between
[Defendant] and her attorneys; drafts of Court pleadings;
potential Court exhibits and documents; case law; statutes;
settlements offers during mediation; and, [sic] strategy
planning documents.
Attached to her affidavit was a copy of the “Confidentiality Agreements and
Acknowledgement of Receipt of Privileged Information” (the “confidentiality
agreement”) that Ms. Adams entered into with Defendant, identifying Ms. Adams as
Defendant’s agent, emphasizing that the privileged information she received would
be used “solely for the purpose[] of settling or litigating” the divorce proceedings, and
affirming the expectation that Ms. Adams’s presence and involvement were
“necessary for the protection of [Defendant’s] interest” and the expectation that all
communications would be “protected by the attorney-client privilege.” The
confidentiality agreement further provided:
Client’s Agent will limit her communications concerning the Client’s
litigation and dispute with her husband to Client and Client’s attorneys
and they [sic] will have no communication with anyone, including, but
not limited to Wife’s experts, accountants, consultants or attorneys, or
other advisors and consultants unless Client’s attorneys are present.
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Opinion of the Court
Based on her assertion that she was Defendant’s agent, Ms. Adams’s counsel
argued before the trial court that all documents and tangible things sought by
Plaintiff’s subpoena were protected by the attorney-client privilege and by work
product immunity because Ms. Adams’s presence in a “support role, to be a
consultant, a representative” did not destroy the privilege or immunity. Plaintiff’s
counsel disagreed, arguing that Ms. Adams was engaged in the “unauthorized
practice of law” and that the law firm had “assisted” her in that role.
The trial court denied Defendant’s and Ms. Adams’s motions on 16 November
2014, finding, in pertinent part, that:
19. Defendant/Mother's Motions and Ms. Adams’[s]
Motions collectively assert that Ms. Adams has been
functioning as a consultant and agent of Defendant/Mother
and of the Tom Bush Law Group in this litigation. Ms.
Adams states that she has attended meetings with
Defendant/Mother and her attorneys, reviewed pleadings,
emails, documents, case law, statutes etc.
...
21. Ms. Adams is not an employee of the Tom Bush Law
Group, nor has she been retained by the Tom Bush Law
Group in this litigation.
22. In truth, Ms. Adams is a good friend of
Defendant/Mother and Ms. Adams is helping
Defendant/Mother out in this litigation.
23. The Agreement executed by Ms. Adams and
Defendant/Mother holds no weight in this litigation.
24. This Court cannot find that any attorney-client
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Opinion of the Court
privilege or work product immunity exists with respect to
the relationship between Ms. Adams and
Defendant/Mother and the Tom Bush Law Group.
25. There is no “good friend” exception to the attorney-
client privilege or work product immunity warranting
entry of an order quashing the Subpoena or protective
order relieving Ms. Adams of her obligation to the comply
with the Subpoena.
26. One could, argue that Ms. Adams is practicing law if
she wishes to utilize either the attorney-client privilege or
work product immunity. The Court will not focus on this
argument or consider it since Ms. Adams is simply viewed
as a good friend of Defendant/Mother.
The trial court concluded in pertinent part that:
2. The Agreement executed by Ms. Adams and
Defendant/Mother holds no weight in this litigation.
...
4. No exception to the attorney-client privilege or work
product immunity exists warranting entry of an order
quashing the Subpoena or a protective order relieving Ms.
Adams of her obligation to the comply with the Subpoena.1
5. Defendant/Mother's Motions and Ms. Adams' Motions
should be denied and Ms. Adams should fully comply with
Plaintiff/Father's Subpoena.
Defendant and Ms. Adams timely appealed.
Ms. Adams’s Appeal
1 The trial court’s conclusion that “[n]o exception to the attorney-client privilege or work
product immunity exists” in this case appears to be a non-sequitur because the court ultimately held
that neither the privilege nor the immunity applied.
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Opinion of the Court
Ms. Adams argues that she constitutes an “aggrieved party” and has a
statutory right to appeal the trial court’s order pursuant to N.C. Gen. Stat. § 1-271(2013) and Rule 3 of the North Carolina Rules of Appellate Procedure. In an
abundance of caution, however, Ms. Adams filed a petition for writ of certiorari
seeking appellate review of the order.
Rule 3 provides that “[a]ny party entitled by law to appeal from a judgment or
order of a superior or district court rendered in a civil action or special proceeding
may take appeal. . . .” N.C. R. App. P. 3(a)(2014). Our Supreme Court has interpreted
Rule 3 to mean that it “afford[s] no avenue of appeal to either entities or persons who
are nonparties to a civil action.” Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313,
322 (2000). Although Ms. Adams filed various pleadings in response to Plaintiff’s
subpoenas in the trial court and was represented by counsel during the hearing, it
does not appear from the record that she took any action to intervene or otherwise
become a party in the underlying action. See id. While Ms. Adams is correct that she
will be affected by the trial court’s order compelling documents and other tangible
things, she is not an “aggrieved party” entitled to appeal the order.
The Bailey court addressed a similar request by a nonparty and concluded that
because the party had no right to appeal as a nonparty, “no such right could be lost
by a failure to take timely action.” Id. at 157, 540 S.E.2d at 322. While Rule 21
provides that a writ of certiorari may be issued to permit review of a trial court’s order
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Opinion of the Court
if, among other reasons, there is no right of appeal from an interlocutory order, N.C.R.
App. P. 21(a)(1) (2014), Bailey compels a conclusion that this avenue of appeal is not
available for those who did not fall within the parameters of Rule 3 allowing the party
to appeal in the first place. Accordingly, we deny Ms. Adams’s petition.
Defendant-Appellant’s Appeal
Orders compelling discovery generally are not immediately appealable.
Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999). However, orders
compelling discovery “where a party asserts a privilege or immunity that directly
relates to the matter to be disclosed pursuant to the interlocutory discovery order and
the assertion of the privilege or immunity is not frivolous or insubstantial, the
challenged order affects a substantial right and is thus immediately appealable.”
Hammond v. Saini, 229 N.C. App. 359, 362, 748 S.E.2d 585, 588 (2013) aff’d, 367 N.C.
607, 766 S.E.2d 590 (2014)(citation omitted).
Standard of Review
A trial court’s order compelling the production of documents that a party
claims are protected by the attorney-client privilege or the work product doctrine is
generally subject to review for an abuse of discretion. Isom v. Bank of Am., N.A., 177
N.C. App. 406, 410, 628 S.E.2d 458, 461 (2006). “To demonstrate such abuse, the trial
court’s ruling must be shown to be manifestly unsupported by reason or not the
product of a ‘reasoned decision.’” Id. at 410, 628 S.E.2d at 461 (citation omitted)
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Opinion of the Court
(internal quotation marks omitted). However, a trial court’s “discretionary ruling
made under a misapprehension of the law . . . may constitute an abuse of discretion.”
Hines v. Wal-Mart Stores E., L.P., 191 N.C. App 390, 393, 663 S.E.2d 337, 339 (2008)
(order for new trial reversed because “the order reveals that the trial court
misapprehended the law and improperly shifted plaintiff’s burden of proof to
defendant”). See also State v. Tuck, 191 N.C. App. 768, 773, 664 S.E.2d 27, 30 (2008)
(trial court abused its discretion in evidentiary ruling because it misapprehended the
applicable discovery statute and failed to consider criteria necessary to its analysis).
Analysis
Plaintiff argues that Ms. Adams was not functioning in the capacity of an agent
but was “merely Defendant-Appellant’s friend” and that the presence of a friend
during attorney-client communications and giving her access to work product defeats
the claim of privilege under our state’s established caselaw.
Defendant argues that Ms. Adams’s presence during and access to attorney-
client communications and work product as a “friend, agent, and trusted confidant”
did not destroy the attorney-client privilege or work product doctrine because Ms.
Adams was acting as Defendant’s agent.2 In support of this argument, Defendant
2 Defendant also urges this Court to adopt an approach used in other jurisdictions which
considers, on a case-by-case basis, the intention and understanding of the client as to whether the
communications would remain confidential. Defendant specifically cites the analysis adopted by the
Rhode Island Supreme Court in Rosati v. Kuzman, 660 A.2d 263, 266 (R.I. 1995) (holding that “the
mere presence of a third party per se does not constitute a waiver thereof. Given the nature of the
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Opinion of the Court
cites the written confidentiality agreement providing that Ms. Adams was acting as
her “agent and personal advisor to specifically assist her in this litigation” and that
Ms. Adams’s presence and involvement in attorney-client communications “is
necessary for the protection of [Defendant’s] interest.”
Defendant does not contend, and did not contend before the trial court, that
she and Ms. Adams had an attorney-client relationship. Rather, she contends that
because Ms. Adams was her agent for purposes of this litigation, the privileges and
protections arising from her attorney-client relationship with the law firm within the
context of the confidentiality agreement remained intact despite the sharing of
attorney communications and work product with Ms. Adams.
In concluding that “[t]he [confidentiality agreement] executed by Ms. Adams
and Defendant/Mother holds no weight in this litigation,”3 the trial court
attorney-client privilege, the relevant inquiry focuses on whether the client reasonably understood the
conference to be confidential notwithstanding the presence of third parties.” (emphasis removed)
(citation removed) (internal quotation marks removed)), and by courts in Maryland. See Newman v.
State, 384 Md. 285, 307, 863 A.2d 321, 334–35 (2004) (concluding that the attorney-client privilege
was not defeated by the presence of a third party confidant because: (1) the record indicated the client’s
“clear understanding that the communications made in the presence of [the third party] would remain
confidential”; (2) the attorney “exerted his control over [the third party’s] presence”; and (3) in all times
during the “extremely contentious” divorce and custody proceedings, the third party “acted as a source
of support for [the client]” by attending court proceedings with the client, participating in
investigations, and communicating directly with the attorney).
3 The trial court included this statement in both its findings of fact and conclusions of law.
Because it involves the application of legal principles, it is a conclusion of law. In re Helms, 127 N.C.
App. 505, 510, 491 S.E.2d 672, 675–76 (1997) (although trial court made identical findings of fact and
conclusions of law that juvenile was neglected, that a government agency had made reasonable efforts
to prevent her removal from her parent’s home, and that it was in the juvenile’s best interest to remain
in county custody, “[t]hese determinations…are more properly designated conclusions of law and we
treat them as such for purposes of this appeal”). Plaintiff did not dispute the authenticity of the
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Opinion of the Court
misapprehended the law of agency. In failing to address the confidentiality
agreement and other evidence of the agency relationship between Defendant and Ms.
Adams, the trial court misapprehended the law regarding the extension of the
attorney-client privilege and the attorney work product doctrine to communications
with a client’s agent within the context of the litigation and confidentiality
agreement.
I. Attorney-Client Privilege
“It is a well-established rule in this jurisdiction that when the relationship of
attorney and client exists, all confidential communications made by the latter to his
attorney on the faith of such relationship are privileged and may not be disclosed.”
State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981). Our Supreme Court
has outlined a five-factor test, i.e., the Murvin test, to determine whether the
attorney-client privilege attaches to a particular communication:
A privilege exists if (1) the relation of attorney and client
existed at the time the communication was made, (2) the
communication was made in confidence, (3) the
communication relates to a matter about which the
attorney is being professionally consulted, (4) the
communication was made in the course of giving or seeking
legal advice for a proper purpose although litigation need
not be contemplated and (5) the client has not waived the
privilege. . . . Communications between attorney and client
generally are not privileged when made in the presence of
a third person who is not an agent of either party.
confidentiality agreement or present any evidence to dispute Defendant’s or Ms. Adams’s stated
understanding and intention in executing the confidentiality agreement.
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Opinion of the Court
Id. at 531, 284 S.E.2d at 294 (citation omitted).
The burden is always on the party asserting the privilege
to demonstrate each of its essential elements. This burden
may not be met by mere conclusory or ipse dixit assertions,
or by a blanket refusal to testify. Rather, sufficient
evidence must be adduced, usually by means of an affidavit
or affidavits, to establish the privilege with respect to each
disputed item.
In re Miller, 357 N.C. 316, 336, 584 S.E.2d 772, 787 (2003) (citations omitted)
(internal quotation marks omitted).
The parties do not dispute that an attorney-client relationship existed between
the law firm and Defendant. Rather, they dispute whether Ms. Adams’s presence
during meetings of the law firm and Defendant destroyed the privileged nature of
those meetings and related documents.
Defendant contends that all the communications Ms. Adams witnessed
between the law firm and Defendant met all five factors of the Murvin test because
Ms. Adams was an agent of Defendant. As explained below, we agree.
Defendant points to Ms. Adams’s affidavit attesting her role as an agent and
the confidentiality agreement she and Defendant signed memorializing their mutual
understanding and expectation that Ms. Adams was acting as Defendant’s agent and
that Ms. Adams’s access to Defendant’s privileged information was protected by the
attorney-client privilege.
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Opinion of the Court
Generally, communications between an attorney and client are not privileged
if made in the presence of a third party because those communications are not
confidential and because that person’s presence constitutes a waiver. Brown v. Am.
Partners Fed. Credit Union, 183 N.C. App. 529, 536, 645 S.E.2d 117, 122 (2007);
Harris v. Harris, 50 N.C. App. 305, 316, 274 S.E.2d 489, 495 (1981). However, the
privilege still applies if the third party is an agent “of either party.” Murvin, 304 N.C.
at 531, 284 S.E.2d at 294. As explained by our Supreme Court,
[i]n limiting the application of the privilege by holding that
attorney-client communications which relate solely to a
third party are not privileged, we note that this rationale
would not apply in a situation where the person
communicating with the attorney was acting as an agent of
some third-party principal when the communication was
made. In that instance, the information would remain
privileged because the third-party principal would actually
be the client who is communicating with the attorney
through the agent. Because the communication would
relate to the third-party principal’s interests, it would
therefore be within the scope of matter about which the
attorney was professionally consulted and thus would be
privileged.
Miller, 357 N.C. at 340–41, 584 S.E.2d at 789–90 (internal citation omitted).
If Ms. Adams was Defendant’s agent when she witnessed the communications
between Defendant and the law firm, the communications would remain privileged
should they satisfy the other Murvin factors.
Agency is defined as “the relationship that arises from the manifestation of
consent by one person to another that the other shall act on his behalf and subject to
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his control, and consent by the other so to act.” Green v. Freeman, 233 N.C. App. 109,
112, 756 S.E.2d 368, 372 (2014). “There are two essential ingredients in the principal-
agent relationship: (1) Authority, either express or implied, of the agent to act for the
principal, and (2) the principal's control over the agent.” Phelps-Dickson Builders,
L.L.C. v. Amerimann Partners, 172 N.C. App. 427, 435, 617 S.E.2d 664, 669 (2005)
(citation omitted) (internal quotation marks omitted).
The trial court dismissed without explanation Defendant’s and Ms. Adams’s
claims that Ms. Adams was, at all times, acting as an agent of and consultant for
Defendant. The trial court simply characterized Ms. Adams as “a good friend of
Defendant/Mother” and concluded that the Agreement executed by Ms. Adams held
“no weight in this litigation.” In addition, based upon Finding of Fact 21, that “Ms.
Adams is not an employee of the Tom Bush Law Group, nor has she been retained by
the Tom Bush Law Group in this litigation,” the trial court apparently considered
that only a paid consultant or employee of the law firm could assist in the litigation
without destroying the privilege. This misapprehension may have been why the trial
court summarily disregarded Ms. Adams’s affidavit and other evidence supporting
Defendant’s and Ms. Adams’s contentions that, in addition to being Defendant’s “good
friend,” Ms. Adams was also Defendant’s agent and consultant in the contentious
divorce and child custody proceedings, especially in light of the serious allegations
noted in the temporary parenting order. Ms. Adams and Defendant memorialized
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Opinion of the Court
their relationship in the confidentiality agreement, referring to Ms. Adams as
“Client’s Agent,” i.e., Defendant’s agent, and noting that Ms. Adams’s role was to
“serve as [Defendant’s] agent and personal advisor[] to assist [Defendant] in her
dispute and/or litigation.” In addition, the information protected by this agreement
is limited to direct communications between Defendant and the law firm and the law
firm’s work product, which may be developed with Ms. Adams’s assistance under the
confidentiality agreement. The trial court did not address whether or why this
evidence did not manifest consent by Defendant and Ms. Adams regarding Ms.
Adams’s role.
We hold that an agency relationship existed between Ms. Adams and
Defendant for the purposes agreed upon between them. This holding is based not
merely on Defendant’s allegations and assertions, see generally In re Miller, 357 N.C.
at 336, 584 S.E.2d at 787, but on additional evidence derived from a source other than
Defendant. The additional evidence includes the affidavit by Ms. Adams establishing
that her role during the communications was as Defendant’s agent and consultant—
the type of evidence specifically noted by the In re Miller court as probative of an
agency relationship—as well as the written agreement memorializing the agency
relationship between Ms. Adams and Defendant. The agreement provided express
authority by Defendant for Ms. Adams to act as her agent and evidences Defendant’s
control over Ms. Adams, both necessary showings to establish an agency relationship.
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See Phelps-Dickson Builders, 172 N.C. App. at 435, 617 S.E.2d at 669. The trial court
failed to conduct the essential analysis as to whether the affidavit, confidentiality
agreement, and other evidence established an agency relationship. We are aware of
no caselaw, nor has Plaintiff cited any authority, that being a client’s “good friend”
and being a client’s agent are mutually exclusive. Nor does our caselaw prohibit a
non-practicing attorney from acting as an agent for purposes of assisting another
person in communications with legal counsel. Our holding would be the same if Ms.
Adams had been a friend trained as an accountant, a psychologist, or an appraiser
who agreed to assist with the litigation without charge. Consequently, we must
reverse the trial court’s order concluding that the attorney-client privilege does not
apply in this case.4
II. Work Product Doctrine
In order to successfully assert protection based on the work
product doctrine, the party asserting the protection . . .
bears the burden of showing (1) that the material consists
of documents or tangible things, (2) which were prepared
in anticipation of litigation or for trial, and (3) by or for
another party or its representatives which may include an
attorney, consultant or agent.
4 Although Defendant’s appellate counsel urges this Court to adopt a new rule requiring the
trial court to consider the client’s expectations regarding confidentiality, it is not necessary given the
evidence establishing an agency relationship.
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Isom, 177 N.C. App. at 412–13, 628 S.E.2d at 463 (emphasis added) (citation omitted)
(internal quotation marks and editing marks omitted). The doctrine is not without
limits:
The work-product doctrine shields from discovery all
materials prepared in anticipation of litigation or for trial
by or for another party or by or for that other party's
consultant, surety, indemnitor, insurer, or agent. This
includes documents prepared after a party secures an
attorney and documents prepared under circumstances in
which a reasonable person might anticipate a possibility of
litigation. Materials prepared in the ordinary course of
business are not protected by the work-product doctrine.
The test is whether, in light of the nature of the document
and the factual situation in the particular case, the
document can fairly be said to have been prepared or
obtained because of the prospect of litigation.
In re Ernst & Young, LLP, 191 N.C. App. 668, 678, 663 S.E.2d 921, 928 (2008)
(citations omitted) (internal quotation marks omitted).
We are persuaded that, given the record evidence, many of the documents
requested by Plaintiff may constitute privileged work product not subject to
discovery. Accordingly, the trial court’s order concluding that the work product
protection necessarily does not apply to the documents is reversed.
III. Remand
Although we reverse the trial court’s conclusion that neither the attorney-client
privilege nor the work product doctrine has any application in this case, the ultimate
determination of which documents are shielded from discovery requires further
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inquiry regarding the nature of each document requested. This determination must
be made by the trial court from evidence including an in camera review of the
documents.
Plaintiff’s subpoenas requested all documents relating to all of Ms. Adams’s
communications with Defendant, all documents relating to her communications with
the law firm, and all documents relating to her communications with any third party
regarding the ongoing legal proceedings during a specified time period. While we
have held that the record evidence established an agency relationship between Ms.
Adams and Defendant, it is unclear whether all the requested materials fall within
the scope of the attorney-client privilege by satisfying the five-factor Murvin test. For
example, communications between Ms. Adams and third parties outside the law firm
may not fall within the protection of the attorney-client privilege. Therefore, we must
remand for the trial court to determine whether the attorney-client privilege applies
to the requested communications, using the five-factor Murvin test and considering
Ms. Adams as Defendant’s agent. Unless the trial court can make this determination
from other evidence such as a privilege log, it must conduct an in camera review of
the documents. See Raymond v. N.C. Police Benevolent Ass’n., Inc., 365 N.C. 94, 101,
721 S.E.2d 923, 928 (2011) (ordering the trial court to conduct an in camera review
on remand to determine whether the communications were protected by the attorney-
client privilege under Murvin).
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Opinion of the Court
We also are unable to determine based on the limited record whether the
documents requested, or any of them, are subject to the work product doctrine. This
determination is necessary only for documents which Defendant asserts are work
product and which the trial court concludes are not protected by the attorney-client
privilege. See Isom, 177 N.C. App. at 412–13, 628 S.E.2d at 463. We remand for the
trial court to review the documents in camera and determine whether the work
product protection applies, taking into account that Ms. Adams was acting as
Defendant’s agent. See Ernst & Young, LLP, 191 N.C. App. at 677–78, 663 S.E.2d at
928 (2008) (remanding for an in camera review to determine whether the documents
requested were created in anticipation of litigation and satisfy the work product
doctrine). A document created by Ms. Adams within the context of the confidentiality
agreement for the law firm and for the purposes of the litigation would be protected,
as would any documents created by the law firm which would normally be protected
even if they were shared with Ms. Adams.
Given our reversal of the trial court’s order, it is not necessary to address
Defendant’s alternative argument that Plaintiff’s subpoena to Ms. Adams exceeded
the scope of Rule 45 of the North Carolina Rules of Civil Procedure.
Conclusion
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Opinion of the Court
Based on the foregoing reasons, we reverse the trial court’s order denying
Defendant’s motion to quash and remand for proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Judges CALABRIA and STROUD concur.
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