N.C. Bus. Ct. R. 10

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) the sources and location of potentially discoverable ESI;

(c) the duty to preserve potentially discoverable materials; and

(d) 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

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 be searched on 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;

(3) a method for designating documents as confidential;

(4) plans and schedules for any rolling production;

(5) deduplication of data;

(6) whether any device(s) need to be forensically examined

and, if so, a protocol for the examination(s);

(7) the production format of documents;

(8) the fields of metadata to be produced; and

(9) 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

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 to the presumptive limits stated above.

The presumptive limits will be increased only upon a showing of

good cause.

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 privileged communications or 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.

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) Counsel should cooperate to schedule depositions.

(2) 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.

(3) Objections should be succinct and state only the basis for

the objection. The Court does not tolerate speaking

objections.

(4) 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.

(5) 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) 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.

(2) 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.

(3) If the parties cannot agree, then the dispute will be

resolved under the procedures described in BCR 10.9.

(4) The parties should also discuss and attempt to agree on

whether a deponent under Rule 30(b)(6) of the Rules of

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) 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.

(3) 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.

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.

(c) 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.