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  • 24 Mar 2021 2:00 PM | Lynette Pitt (Administrator)

    By Mark A. Stafford and Candace S. Friel, Nelson Mullins Riley & Scarborough, LLP

    We sometimes think that the drafters of N.C. R. Civ. P. Rule 26(b)(5) sought only to test the pain thresholds of lawyers: Privilege logs are the bane of existence for most attorneys—expensive, time consuming and generally a nuisance. In practice, few of us focus on privilege logs early in the process of obtaining and reviewing client documents, but failing to do so can be dangerous.

    Without using the term “privilege log,” N.C. Rule 26(b)(5) (as well as the cognate federal rule) requires that claims of attorney-client privilege, work product, and joint defense or peer review privileges must be invoked at the time of service of the discovery responses or “when the party withholds the information.” This is often made express in case management orders that require a party to serve a privilege log “contemporaneously with its objection.” E.g., Window World of Baton Rouge, LLC v. Window World, Inc., 2019 NCBC LEXIS 54, *89 (N.C. Sup. Ct. Aug. 16, 2019). Not doing so can be deemed a waiver of the privilege.

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  • 18 Mar 2021 4:43 PM | Lynette Pitt (Administrator)

    By J. Matthew Little, Esq., Teague Campbell Dennis Gorham, LLP

    In recent years, the Defense Bar has seen historic numbers of pro se prisoner filings. Along with this increase is a new litigation trend that involves coupling traditional medical malpractice claims under Chapter 90 of the North Carolina General Statutes with Federal civil rights claims under 42 USC Section 1983. Given the cap on non-economic damages in Chapter 90 and North Carolina’s broad denial of attorneys’ fees recovery for prevailing parties, plaintiffs have weaponized Section 1983. Unlike Chapter 90, this section does not impose a damages cap and, when paired with a claim under 42 USC § 1988, allows for the recovery of attorneys’ fees–thus resulting in potentially much greater damages awards for aggrieved plaintiffs who have been able to retain counsel.

    Although litigants have recently relied upon Section 1983 in cases of alleged excessive use of force by law enforcement, defense attorneys are increasingly seeing it used in cases filed against jail medical staff. Specifically, inmates have used Section 1983 as a cudgel against medical providers within the prison system, claiming violations under the Eighth Amendment’s prohibition against cruel and unusual punishment.

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  • 25 Feb 2021 9:30 AM | Lynette Pitt (Administrator)

    The Argument for Applying North Carolina Rule of Evidence 414 in Federal Court with help from Sigmon v. State Farm Mut. Auto. Ins. Co.

    by Austin Walsh, Hedrick Gardner Kincheloe & Garofalo, LLP

    North Carolina Rule of Evidence Rule 414 is the law of the land – at least in North Carolina state court. The Rule has survived a constitutional challenge and, with only a minor setback in Sykes v. Vixamar, remains a powerful trial and discovery tool for the defense bar. But a question often posed is whether Rule 414 applies in federal court or in binding arbitration, such as for underinsured motorist (UIM) claims. The easy answer is “no,” but perhaps the 2019 case of Sigmon v. State Farm Mutual Auto Insurance Company from the United States District Court for the Western District of North Carolina provides a path to “maybe” (or even “probably”).

    Rule 414

    On June 16, 2011, House Bill 542 passed by a vote of 80-32 and became Session Law 2011-283, which Governor Bev Purdue signed into law eight days later on June 24, 2011. From S.L. 2011-283, evidence Rule 414 took effect on October 1, 2011, and limited the admissibility of medical expenses to “the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”i  Rule 414 has faced little scrutiny in the courts with disputes primarily arising from what constitutes relevant evidence of “the amounts actually necessary to satisfy” unpaid medical bills.ii  No state court has decided whether Rule 414 is substantive or procedural law and whether Rule 414 applies in federal court remains an open question.

    Remember the Erie Doctrine?

    The law school throwback Erie Doctrine mandates that a federal court sitting in diversity applies the substantive law of the state in which it sits but federal procedural law.iii  The Erie Doctrine “is rooted in part in a realization that it would be unfair for the character of result of a litigation materially to differ because the suit had been brought in a federal court.” iv  The Fourth Circuit has held that “although the Federal Rules of Evidence typically govern in diversity cases, ‘there are circumstances in which a question of admissibility of evidence is so intertwined with a state substantive rule that the state rule … will be followed in order to give full effect to the state’s substantive policy.’”v

    As an example of procedural rules affecting substance, the U.S. Supreme Court has held that state tolling statutes, despite being squarely set within rules of procedure, are substantive law.vi  Federal Rules of Civil Procedure Rule 41 does not have the one-year saving provision that is found within N.C.’s Rule 41. The Western District held in Haislip v. Riggs that N.C.’s legislatively adopted Rule 41(a) was controlling in diversity cases as a matter of N.C. substantive law.vii  The Court in Haislip also reiterated the Fourth Circuit’s test for resolving the substantive vs. procedural problem:

    1. If the state provision, whether legislatively adopted or judicially declared, is the substantive right or obligation at issue, it is constitutionally controlling.

    2. If the state provision is a procedure intimately bound up with the state right or obligation, it is likewise constitutionally controlling.

    3. If the state procedural provision is not intimately bound up with the right being enforced by its application would substantially affect the outcome of the litigation, the federal diversity court must still apply it unless there are affirmative countervailing federal considerations. This is not deemed a constitutional requirement but one dictated by comity.viii

    Sigmon v. State Farm

    Enter Sigmon v. State Farm. The Sigmon case is not about Rule 414. It is a personal injury, breach of contract, and insurance bad faith case brought by a third-party plaintiff against a tortfeasor’s insurer.ix  The plaintiff alleged injuries from a motor vehicle accident on 5/20/2016 from which she filed a claim with tortfeasor’s insurer, State Farm.x  In a subsequent lawsuit, Plaintiff’s theory against State Farm arose from the insurer at first accepting liability and paying the property claim before denying liability on the bodily injury claim.xi In denying cross motions for summary judgment, Judge Kenneth D. Bell allowed plaintiff’s claims against State Farm to proceed to trial.xii

    In preparation for trial, State Farm filed a motion in limine pursuant to N.C. Rule 414 to exclude evidence of medical expenses other than amounts paid or actually necessary to satisfy the bill.xiii  Perhaps owing to Plaintiff’s admission that Rule 414 applied, Judge Bell granted State Farm’s motion with regard to past medical expenses and relegated to a footnote discussion on whether Rule 414 is substantive or procedural law.xiv  Judge Bell did not mince words and stated that “[t]he application of Rule 414 may affect the outcome of litigation and is substantive North Carolina law.” xv  Judge Bell cited two N.C. cases, first Hairston v. Harward for the N.C. Supreme Court’s treatment of the collateral source rule as substantive law and second, a footnote from Nicholson v. Thom, which recognized that Rule 414 abrogated the N.C. collateral source rule with regard to evidence of past medical expense.xvi

    Will Sigmon Hold Up?

    Although limited to a footnote within an order granting a motion in limine, Judge Bell’s statement that Rule 414 is substantive law is certainly strong enough to include in your next federal pre-trial motions. However, expect to see renewed constitutional challenges to Rule 414, perhaps again under Article IV, § 13(2), which gives the General Assembly the power to make rules for the trial courts, but sets limits to that power: “No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury.” To the extent arguments against the initial constitutional challenges were that Rule 414 was primarily procedural, Judge Bell’s ruling flips the script and may result in the defense bar winning the federal court battle but losing the war.

    ________________

    N.C. Gen. Stat. § 8C-1, Rule 414 (2019).
    ii See Nicholson v. Thom, 236 N.C. App. 308, 337, 763 S.E.2d 772, 791 (2014) (noting in dicta that Rule 414 abrogated the collateral source rule with regard to past medical expenses).
    iii Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
    iv Hanna v. Plumer, 380 U.S. 460, 467 (1965).
    Hottle v. Beech Aircraft Corp., 47 F.3d 106, 110 (4th Cir. 1995) (quoting DiAntonio v. Northampton-Accomack Memorial Hosp., 628 F.2d 287, 291 (4th Cir. 1980)).
    vi Jinks v.Richland County, S.C., 538 U.S. 456, 463-65 (2003).
    vii Haislip v. Riggs, 534 F.Supp. 95, 98 (1981).
    viii Id.
    ix. Sigmon v. State Farm Mut. Aut. Mobile Ins. Co., 5:17-CV-225-RJC-DCK, 2018 WL 3910836 *at 1 (W.D.N.C. July 24, 2018).
    x Sigmon v. State Farm Mut. Aut. Mobile Co., et al., 5:17-CV-00225-KDB-DCK, 2019 WL 3928641.
    xi Id.
    xii Id. *at 4. (The Order is an interesting read for the effect of insurers changing liability positions mid-stream.)
    xiii Sigmon v. State Farm Mut. Aut. Ins. Co., 5:17-CV-00225-KDB-DCK, 2019 WL 7940194, *at 1 (W.D.N.C. Nov. 14, 2019).
    xiv Id. *at 2.
    xv Id. *at n 1.
    xvi Id. *at n 1.

  • 24 Feb 2021 2:21 PM | Jennifer Edwards (Administrator)

    How the Pandemic Has Changed the Practice of Law

    In January, a few members met via Zoom to share experiences and reflect on the past year. Prior to the meeting we asked folks to consider a few questions. Firstly, what are your successes, words of wisdom, and best advice—given or received. Overwhelmingly, the committee members responded that simply picking up the phone and calling someone has been invaluable. A year ago, right before in person meetings abruptly ceased, it was easiest to walk down the hall or meet someone for coffee when we needed to ensure clarity. But with email now the norm for communicating, clarity can be sometimes difficult to obtain because email lacks tone. All agreed that in order to avoid confusion or misunderstandings, give the person a quick call.

    Gone (for now) are the days of cocktail parties and post-work gatherings—the places we used to network and meet new people. But networking is an integral part of being an attorney. How have you managed networking and mentorship in this virtual world? One member noted that prior to the pandemic their firm held periodic lunch meetings to ensure newer staff members and attorneys were getting to know each other. With the pandemic, they’ve transitioned to a virtual platform so newer employees still get the same experience and don’t feel lost or out of the loop.

    Another person noted that virtual meet ups actually give you more time to spend with more people--when you’re not having to factor in travel time, it’s a lot easier to squeeze in two or three calls in a day, whereas previously you might have only been able to do a lunch meeting or a morning coffee. All agreed with the importance of reaching out to people and making sure they feel connected.

    And it’s not just networking that has changed in the practice of law. As one member noted, you’re constitutionally entitled to a speedy criminal trial—the same does not apply to a civil trial. In some areas, civil cases are being pushed out several months. Many North Carolina counties are allowing virtual hearings; however, a few are still holding in person trials—forcing attorneys to travel to those counties. A perfect example is the member who had just returned from a deposition in New Hanover county that had to be in person. She commented that while it was a long drive—nearly from one end of the state to the other—the time in the car gave her time to think and be out of the house/office that we don’t often get these days.

    But that doesn’t change the fact that trials may still be difficult to manage. One county may be open for trials because they have a larger courthouse that is able to ensure social distancing and accommodate jury trials, whereas smaller counties do not have the space at all for a jury trial. And once you get the go ahead to have the jury trial, the next hurdle is finding 10 people who are willing and able to be on a jury panel. These are situations we will continue to face for months to come.  

    Turning these changes caused by the pandemic into an asset and seeing the silver linings has been on a lot of people’s minds lately. We may be in this for awhile longer, so how to make the best of it? And the conversation really circled back to the one of the original points—picking up the phone and making an effort to personally reach out has been a game changer in the new normal. The irony of the pandemic is that in some ways we’ve become better communicators. And communication will be key when everything does eventually open up because at that point everything that has been pushed to the back burner will suddenly need to be scheduled.

    That’s where everyone learning Zoom may come in handy—client meetings that used to be in person can be transitioned to virtual meetings, allowing for multiple meetings in a day, freeing up time for in person cases, and saving your client money as well. Of course, online meetings have their drawbacks—not everyone has access to reliable internet. Someone noted one of his clients struggled to find a good wi-fi signal, making it nearly impossible to take her statement. Additionally, online only meetings remove some of the humanity we were used to with in person meetings. You can’t know what the judge is feeling because you can’t read their body language. Mingling in the hallways of court houses with other attorneys when there are face to face trials is verboten—all but eliminating the chance to form relationships that might be beneficial in the future.

    The practice of law may never return to “normal.” But the pandemic has offered the unique opportunity to step back and assess the profession. For good and for bad. As one member said, “It’s difficult to predict the potential assets from this experience as we remain in the midst of it, I’m sure everyone will come out of it with different lessons.”


  • 29 Oct 2020 11:52 AM | Jennifer Edwards (Administrator)

    By Bobbie Kullman, Nelson Mullins Riley & Scarborough, LLP

    There have been changes to rules regarding service and issues arising out of service due to the global pandemic and outbreak of COVID-19.  Namely, USPS’s COVID-19 modifications for certified mail/return receipt and not obtaining recipients’ actual signatures. Postal workers have been writing “COVID-19” in the recipient’s signature block on the return receipt. That clearly is not compliant with Rule 4 service. During this time, it is recommended you use another avenue of service if you need a true signature from your recipient. Prompted by the pandemic, Rule 5 regarding service and filing of pleadings has been revised to allow service of orders, subsequent pleadings, discovery, motions, notices, etc. to be served via email on opposing counsel without their consent to that avenue of service. There are some exceptions and a review of the rule might be in order.

    Initial service of lawsuit and basic deadlines.

    Once a summons and complaint has been served on your client, you have 30 days to file an answer in state court and 21 days for federal court. Along with getting a copy of the complaint and summons that was served on your client, always ask the client if discovery requests were served as well. This should be indicated on the civil summons, but some attorneys neglect to indicate such on the summons. If discovery is served with the complaint, that will add additional deadlines. Responses to interrogatories and requests for production will have a 45-day deadline while requests for admission will have a 60-day deadline for state court matters.

    If the newly received lawsuit is a state court matter, review defendants and allegations in complaint to determine possibility for removal to federal court. Diversity in citizenship (i.e. plaintiff from NC and defendant is a Texas corporation) is one of the most common requirements for removal I run across in my work. Federal question is another requirement that could allow for federal court to maintain jurisdiction over the lawsuit. If the allegations raise any complaints as to civil rights, discrimination, or other violations under federal law, the matter will be removable. Review the applicable U.S. Codes for additional details for removal.

    Is service proper? 

    As stated above, there have been some issues with the USPS and proper service. Additionally, there are certain avenues of service you must try first prior to using other avenues of service. Under Rule 4 governing service, it states “Upon the filing of the complaint, summons shall be issued forthwith, and in any event within five days. The complaint and summons shall be delivered to some proper person for service. In this State, such proper person shall be the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons.” Many attorneys like to utilize a process server right out of the gate. Technically, that’s not proper service in N.C. but many don’t raise a fuss. The use of private processors is very limited and require you first try service through the Sheriff’s Department. Three points of reference regarding this issue are:

    • (1)  Article: https://civil.sog.unc.edu/youve-been-served-private-process-servers-in-north-carolina/    
    • (2)  Locklear v. Cummings, 822 S.E.2d 587, 593 (N.C. Ct. App. 2018); N. Carolina State Bar v. Hunter, 217 N.C. App. 216, 224 (2011)
    • (3)  Court of Appeals: Stewart v. Shipley
    •  

    In order to use a process server for a summons, Rule 4(h) or Rule 4(h1) have to apply and that includes:

    • (1)  Officer not available/refuses/neglects to serve; or
    • (2)  Office returns process unexecuted.

    If a person that is not named in the lawsuit accepts service for the lawsuit, ensure that person has the authority to do so. The person accepting must be over 18 y.o. and must live at the address where service is attempted. One recent problem experienced involved a husband and wife getting served at the family address. The husband accepted service for him and his wife; however, the wife no longer lived there and there was a restraining order in place that prevented them to be near each other. In this situation, the wife was not properly served.

    One tidbit to remember is that we on defense have no responsibility to share the whereabouts, if known, of the Defendant to plaintiff’s counsel for service (i.e. defendant is in out-of-state drug treatment).

    Another item to be noted regarding proper service is determining if a Summons/Alias & Pluries (A&P) Summonses are up-to-date and accurate. To keep a summons alive until properly served you will need to get an A&P issued no later than 90 days from the previous issuance. If your client is served with an A&P Summons, calculate the time between all dates issued to ensure timeliness of all issuances.

    Statute of Limitation and Statute of Repose are always to be evaluated initially and correlate to proper service. Briefly, below are the typical years for the different statutes:

    • §  Statute of Limitation:
    • (1)  Legal Malpractice: 3 years
    • (2)  Libel: 1 year
    • (3)  Medical Malpractice: 3 years
    • (4)  Personal Injury: 3 years
    • (5)  Property Damage: 3 Years
    • (6)  Wrongful Death: 2 years
    • (7)  Product Liability PI: 2 years (w/in date of injury)
    • §  Statue of Repose:
    • (1)  Real Property: 6 years (after improvement/substantial completion or last specific act or omission of defendant, whichever is later)
    • (2)  Product Liability: 12 years (vehicles are from the first title. If a 2009 vehicle was actually titled in October 2008, you can run into an issue Usually goes by first purchase.

    Service of Subpoenas

    State subpoenas are easy to serve. You can use about any means available, including Sheriff, process server, certified mail/return receipt, and any person over 18 years of age and not a party to the lawsuit. Federal subpoenas require personal service. If you require the person’s attendance, you will need to include a check for 1-day appearance ($40) and round-trip mileage with the subpoena. One item to note when serving an out-of-state person with a federal subpoena, you need to find a location for their appearance or document production within 100-miles from where the witness resides to stay in compliance of federal rules. Tips: Any time I serve an out-of-state person with a federal subpoena for production of documents, I find a court reporter’s office near their residence to use as the location for production to comply with the 100-mile rule. Court reporting agencies are also a good resource for local process serves.

     

    Expert disclosures?

    Typically, all expert deadlines are set out very specific in your scheduling order. However, occasionally the scheduling order may not specifically set out the deadline to serve your expert disclosers. In those instances, Rule 26 sets it at 90-days prior to trial. Remember, expert disclosures are considered part of discovery and are not filed.

    Domesticating Subpoenas

    In domesticating any subpoena, whether your assisting an out-of-state attorney in domesticating a foreign subpoena in N.C. or having a N.C. subpoena domesticated in another state, you must first determine if the foreign state is part of The Uniform Interstate Deposition and Discover Act (UIDDA). N.C. has adopted the UIDDA and makes the process much easier to conduct discovery across state lines and obtaining depositions of out-of-state witnesses. Most states have adopted the act leaving only a few (~8) that have not adopted the act. For those states, you have to do your research and figure out what that state requires (motions, hearing before a judge, hire local counsel, etc.). If the state has adopted the act, it’s a pretty simple procedure. First, look at that state’s rules on domesticating as they may have additional requirements.  Then, call the county in the state where you need the subpoena domesticated and find out their filing fee. Everywhere is different.  Explain what you are doing and most courts are pretty helpful in assisting you or confirming procedures.

    In domesticating a N.C. subpoena in another state, first prepare a N.C. subpoena with all the information and issued by an attorney.  Second, prepare a subpoena for the state you need to domesticate in and perform any additional requirements of that state/county. Third, send it all to the out-of-state county for issuance along with a check for their fee.

    In assisting an out-of-state attorney in domesticating a foreign subpoena in N.C., you first need to obtain an issued out-of-state subpoena (some states allow an attorney to issue like N.C. or they may require a court official to issue). Second, prepare a N.C. subpoena with all required information. Third, prepare a List of Counsel and obtain a check for $200.00 for the issuance fee. Once you have all documents prepared, send to the Clerk of Court in the county you need it domesticated in and the Clerk will issue the N.C. subpoena.

    As it goes, situations aren’t always black and white and there will be times of uncertainty on what to do or what’s expected. We are paralegals because we are paired with attorneys. Never be afraid to go to your attorney with questions. They would always rather you ask what you might think is a “dumb” question than fix a mistake. 


  • 13 Oct 2020 1:23 PM | Jennifer Edwards (Administrator)

    by Patrick Brown  

    Happy Cybersecurity Awareness Month (well, almost)!  As we enter October, consider a goal of taking a little time each week to think about cybersecurity.  Maybe even revisit articles from past years such as: 10 Tips for Cybersecurity MonthThe Myth of Security by AnonymityWait I hired a hacker, and more!

    A great place to begin is with a free and easy security measure: Encryption!  Not only is it easy, but it is also one of the best steps you can take to keep things secure.  Use it anywhere you might have sensitive or confidential data: computers, laptops, tablets, mobile phones, removable media such as USB drives, etc.  That way if your device is lost or stolen, it will not be possible for someone to access the contents without your password.  Windows 10 has a built-in tool, BitLocker, and Mac OS has FileVault – you just have to turn it on!

    Taking this a step further would be to use encrypted email for sending confidential information.  If you use a file-sharing service, be sure your data is encrypted both at rest (stored on the system) and in transit (when sending, receiving, uploading, downloading, etc.).  Those two solutions are usually not free, but the cost is typically very low for the protection it affords.  Different providers you may encounter include: Citrix ShareFile, ZixCorp, Box, SharePoint, GSuite, and many more.

    If you want to read for extra credit, take a glance at the NC State Bar’s ethics opinion 2011 FEO 6, the ABA’s formal opinion 477R, and the Texas State Bar’s ethics opinion 648 (with a shout out to the NSA!).  These provide some guidance in selecting providers, using encryption, and factors to consider in implementing security measures.

    Next, consider your network.  Exclusive clubs and venues have “lists” you must be on to get in – why should your office be any less special?  But you do not need to go out and hire a bouncer!  Simply enable MAC address filtering on your network.  In essence, it means that only your office’s official devices can connect to the local area network when you plug into the wall in your office.  If an unknown device connects to your data lines, it will not be given an IP address by your system and will not be able to access your network.  This prevents someone from plugging an unknown device to your network and either infecting it with a virus or malware or accessing confidential information.

    Create similar exclusivity around your Wi-Fi as well.  Consider two networks: an office network and a guest network.  The office network should only be for your office’s official devices that require Wi-Fi access, the password should not be generally known, and the SSID (the name of the network) can even be hidden if you like so it is not generally able to be seen by the public.  The guest Wi-Fi can then have a password that is available to clients, visiting attorneys, guests, and employee’s personal devices.  Most importantly, these networks should be separated so someone on the guest network cannot access your office’s files and devices.

    Then consider the Principle of Lease Privilege.  What is this, you ask?  Why, thanks for your interest!  This is a concept that instead of giving access to everything and then restricting people from information they should not see, the access given should only be that which is needed to do this job.  So, what do your employees need to do their job?  Areas to consider include:

    • File access (physical and electronic). Consider what people are allowed to access – and keep in mind that a source of data breaches is employees accessing information out of curiosity, not a business need.  Removing the temptation may be the best option!
    • Removable Media Drives (CD, DVD, USB, SD card, memory sticks, etc.). Who really needs access to those?  Removable media is a very effective way to have your data walk out the door, or to have malware (including ransomware) and viruses walk in.  Think of those devices like a toothbrush you found – if you do not know where it has been and what it has touched, do not put it in your mouth (or computer)!
    • Administrative rights on computers. It is hard to install malicious software if most users do not have the access rights to install programs on their machines.  Controlling what is allowed will help you to better ensure the safety of your network and the information stored in your systems.

    Great job!  You have encrypted your computers and phones, you have set strong passwords/ passphrases, you have restricted access – but then you walk around the office and see computers logged on with no employees in sight.  All those protections are for naught if the electronic doors are left wide open.  The solution: automatic screen lock settings!  That way if someone forgets to log off, the computer will lock itself after a period of inactivity (maybe start with 10 minutes).

    I know.  This is a lot to take in all at once.  But you have the whole month of October to increase your cybersecurity awareness!  Do not try to do everything at once – instead, take it one step at a time and you will quickly be on a path to greater security!


  • 06 Oct 2020 12:48 PM | Jennifer Edwards (Administrator)

    By Kimberly Marston, Brooks Pierce, LLP

    If opposing counsel sends you discovery or a pleading by email, it is no longer just a courtesy copy. Beginning Thursday, Oct. 1, 2020, that email effects service under the North Carolina Rules of Civil Procedure.

    During the pandemic, the Chief Justice’s interim orders permitted service by email only upon written consent. That interim order expires Sept. 30, 2020. The amendments to Rule 5 of the N.C. Rules of Civil Procedure enacted by House Bill 679 this summer take effect on Thursday, Oct. 1, 2020.

    Under amended Rule 5, service by email (or eFiling where available) is permitted in most circumstances.

    House Bill 679 amends N.C. Gen. Stat. § 1A-1, Rule 5 in several important ways:

    • eFiling (where available) and email are permissible forms of service, with some exceptions.
      • Parties represented by an attorney may be served by email. Consent is not required. The email must be sent by 5:00 p.m. EST on a business day, otherwise it is considered served on the next business day. [N.C. R. Civ. P. 5(b)(1)(a)].
      • An unrepresented party may only be served by email if they have consented to such service, “and a copy of the consent is filed with the court by any party.” [N.C. R. Civ. P. 5(b)(2)(c)].
      • Where electronic filing is available, service is achieved by eFiling, unless a party is not registered in the system. [N.C. R. Civ. P. 5(b)].
    • Other methods of service, including hand-delivery, fax, and mail are still acceptable.
    • Certificates of Service
      • If you’re serving by email (or fax), the certificate of service must include the email address (or fax number) of every person served by that method. [N.C. R. Civ. P. 5(b1)].
      • The automated certificate of service generated by an eFiling system satisfies the requirements for a certificate of service as to every person registered for service through the system. [N.C. R. Civ. P. 5(b1)].
    • The “3-Day Rule” adds three days to the period of time prescribed for taking some action after service by mail. H.B. 679 did not amend Rule 6(e). Therefore, there is no additional time added to a prescribed period after service by email.
    • H.B. 679 does not alter or amend the North Carolina Business Court Rules. Business Court Rules are amended by orders of the North Carolina Supreme Court. Currently, when the Business Court Rules apply:
      • eFiling and email is treated the same as mail for purposes of the 3-Day Rule  [BCR 3.9(d)], and
      • Documents must be filed with a certificate of service stating the documents have been filed electronically and served under Rule 3.9(a).

    This amendment was spurred by the pandemic, but it also paves the way for expansion of the state’s eFiling and case-management system.

    The North Carolina Supreme Court also amended the General Rules of Practice for the Superior and District Courts by order effective Oct. 1, 2020. The amendment adds subsection (a), which lists the matters where eFiling is currently available. The Comment to the amended Rule 5 of Practice states, “the North Carolina Judicial Branch will implement a statewide electronic filing and case-management system beginning in 2021. The system will be made available across the state in phases over a five-year period.” The comment also notes that further changes to the General Rules of Practice, Business Court Rules and Supplemental Rules for the eFiling Pilot Project are expected. 

    If you litigate in state Superior and District courts, the North Carolina Business Court and federal district courts, keep your rule books close.

    The chart below is a summary of generally applicable rules as of Oct. 1, 2020. Major differences are shown in red. Always consult the most up-to-date version of applicable civil rules, local rules, and eFiling rules for any differences based on specific circumstances or future changes.

    You can subscribe to updates from the Judicial Branch, including Supreme Court rule announcements, at www.nccourts.gov.

    Filed Documents

    (after Summons and Complaint)

    Other Documents

    (e.g. discovery, certain notices)

    N.C. District and Superior Courts

    (Effective Oct. 1, 2020)

    • ·  eFiling (if available) serves any registered users
    • ·  Email by 5 p.m. (requires filed consent by unrepresented party)
    • ·  U.S. Mail (+3-Day Rule applies)
    • ·  Hand-delivery (delivery to office for represented parties only)
    • ·  Fax by 5 p.m. (represented parties only)
    • ·  Email by 5 p.m. (requires filed consent by unrepresented party)
    • ·  U.S. Mail (+3-Day Rule applies)
    • ·  Hand-delivery (delivery to office for represented parties only)
    • ·  Fax by 5 p.m. (represented parties only)

    N.C. Business Court

    (upon designation or assignment to a Business Court judge under Rule 2.1)

    • ·  eFiling by 5 p.m. is mandatory
      (+3-Day Rule applies) [BCR 3.9(c)]
    • ·  Unrepresented parties must request to forego use of eFiling
      [BCR 3.2, 3.9(a)]
    • ·   Email by 5 p.m. [BCR 3.9(c)]
      (+3-Day Rule applies) [BCR 3.9(c)]
    • ·   Email is exclusive method of service unless parties agree otherwise or CMO calls for a different method

    Federal District Court

    (Local Rules may vary)

    • ·  CM/ECF by 11:59 p.m. in court’s time zone [FRCP 6(a)(4)(A)] (unregistered users must be served by other methods)
    • ·   Mail  (+3-Day Rule applies)
      [FRCP 6(d)]
    • ·   Email (written consent required) [FRCP 5(b)(2)(E)]
    • ·   Hand-delivery
    • ·   Delivery to office or dwelling

    If you have questions on these changes, please contact Kim Marston or Will Walker.


  • 26 Aug 2020 1:05 PM | Jennifer Edwards (Administrator)

    By Michelle Liguori, Ellis & Winters, LLP

    Like most of us, three small business owners from Winston-Salem, North Carolina are unhappy about the effects of the Coronavirus on the health and economic prospects of North Carolina’s citizens. 

    Taking matters into their own hands, in Patella v. People’s Republic of China, No. 1:20-cv-00433 (M.D.N.C. May 15, 2020), the three Winston-Salemites filed a putative class action against the People’s Republic of China and several other Chinese government parties, seeking redress for all North Carolina citizens who have suffered physical injury or economic harm as a result of the pandemic.  Based largely on cable news reports, the local business owners accuse the defendants of creating the Coronavirus in a research lab for infectious diseases, covering up a local outbreak, allowing the outbreak to spread and reach pandemic proportions, and then unlawfully hoarding the personal protective equipment that North Carolina citizens needed to keep themselves safe.  The complaint asserts claims of public nuisance, strict liability, negligence, intentional and negligent infliction of emotional distress, and assault and battery.

    While the claims, on their merits, may be destined for the chopping block, the North Carolina business owners’ attempts to seek redress for all affected North Carolinians provides a timely backdrop for highlighting some class-action basics.

    What’s a Class Action?

    In a class action, a group of individuals who have suffered the same injury by the same defendant may sue that defendant together in a single lawsuit.  Class actions are typically brought where the injury suffered by each individual plaintiff is relatively small, and not worth pursuing in an individual action due to the expense of individualized litigation.  The class-action form allows a large number of individual plaintiffs to pursue their claims at the same time, with the same counsel, in the same proceeding, and, often, with the same evidence.  A class action is typically brought by one named plaintiff, or a small group of named plaintiffs, who seek to represent the interests of the entire class.

    But not just anyone can bring a class action.  Under Rule 23 of the Federal Rules of Civil Procedure, to sue on behalf of a class, the named plaintiffs must first show the following four things (deemed “prerequisites” for a class action): 

    (1)     the class is so numerous that it would be impractical for each class member to sue individually;

    (2)     there are common questions of law or fact common to the class;

    (3)     the named plaintiffs’ claims are typical of the claims of all other class members; and

    (4)     the named plaintiffs will fairly and adequately represent the interests of the class. 

    Once these four prerequisites are satisfied, the proponents must also show that a class action is appropriate on one of three alternative bases:

    (1)     separate actions by class members could create inconsistent decisions that would be dispositive of individual class members’ claims, or could create incompatible standards of conduct for the defendant;

    (2)     injunctive relief is sought regarding the class as a whole; or

    (3)     questions common to the class predominate over questions that affect only individual class members, such that resolving the dispute as a class action is superior to individual adjudications.

    What does this all mean, in a nutshell?  To pursue a class action, the named plaintiffs must show that there is a large class of people, who are just like them, were injured by the defendant in the same way as they were, have the same legal claims as them, and will prove those claims in the same way.

    Defense Playbook

    What can a defendant do to stop the class?

    The defendant may be able to cut off the head of the snake with a motion to dismiss, by showing that the named plaintiffs’ claims care not viable on the merits, or that the named plaintiffs lack standing to bring them.  The grounds for dismissing claims on the merits depend on the particular claims at issue.  As for standing, a common argument—particularly in cases where plaintiffs seek penalties for statutory violations—is that the named plaintiffs suffered no real injury from the defendant’s conduct, and thus the plaintiffs do not meet the Constitution’s requirements for filing a lawsuit in the first place.

    If a motion to dismiss fails, the case moves on to class certification, where the name of the game is individualized differences.  While the proponents of a class action must show that the named plaintiffs and class members are the same, the opponent of the class action must show that the named plaintiffs and the class members—and the claims they seek to pursue—are meaningfully different, such that pursuit of the claims as a class does not make sense.  This includes showing that the class members suffered different injuries, that their claims are based on different facts, and that proving the claims will require different evidence. 

    Class-action defendants may also be able to show that some or all class members entered arbitration agreements, which require them to arbitrate their claims against the defendant, rather than pursue them in court.  Many arbitration agreements also contain class-action waivers, which prohibit claimants from proceeding as members of a class, either in court or in arbitration.

    Some Tips for China

    Given all this, what are the People’s Republic of China and other defendants to do with the looming class-action complaint?

    First, they might consider moving to dismiss for lack of standing.  Setting aside possible merits-based challenges to the complaint (such as sovereign immunity and failure to state a claim, to name a few) there is a conspicuous standing problem:  The complaint fails to identify any injuries that Mr. Patella and his two fellow Winston-Salemites actually suffered.  The complaint does not state, for example, whether any of these men contracted the Coronavirus, whether any of them were forced to close their businesses as a result of stay-at-home orders, or whether any of them suffered any other harm as a result of the virus.  (The complaint does not even allege the type of business each man owned.)  Instead, the men largely seek to redress injuries suffered by North Carolina citizens generally. 

    This is not enough.  While a class action allows a plaintiff who has himself been injured to sue on behalf of a class of those who have been similarly injured, it does not give any citizen the ability to sue on behalf the public interest.  That role is left to prosecutors and attorneys general.  Thus, the People’s Republic of China and other defendants might argue that the complaint should be dismissed because its allegations provide no basis for the named plaintiffs to sue on behalf all North Carolina citizens.

    If a motion to dismiss fails, the case will proceed to class certification, where the defendants might try to identify individualized differences between the named plaintiffs and other class members in the injuries they suffered, the basis for their claims, and the proof that would be needed for each to prevail.  The defendants might explore the following questions, for example:

    • Did any of the named plaintiffs or class members visit China within the past six months?
    • Did some class members, but not others contract the Coronavirus?
    • Can any of the class members trace their infections back to China?
    • Was personal protective equipment (PPE) available to some class members, but not others?
    • Was PPE available to some class members, and did they choose not to use it?
    • Similarly, are all class members business owners?
    • Have they all suffered economically as a result of the pandemic?
    • Have some profited?

    In short, while the Coronavirus has affected the lives of all North Carolinians, the People’s Republic of China and other defendants may be well served by showing how the virus has touched each of our lives in different ways—and that proving the specific harms each of us has suffered would require individualized evidence.

    Finally, the defendants should not overlook the possibility of arbitration.  They may want to consider whether the named plaintiffs, or any potential class members, entered arbitration agreements that would cover their claims that the Chinese government entities violated duties owed to them as North Carolina citizens. 

    *        *        *

    While Mr. Patella and his associates’ attempt to get redress for all North Carolina citizens may not make it past the chopping block, their complaint has, at least, provided an opportunity to highlight some class-action basics for those in North Carolina and beyond.


  • 21 Jul 2020 1:56 PM | Jennifer Edwards (Administrator)

    By Jon Berkelhammer,
    Ellis & Winters, LLP

    On June 16, I had the pleasure of being one of the first handful of attorneys to argue before the North Carolina Supreme Court via WebEx.  To say it was a little more nerve wracking than usual would be an understatement.  In addition to actually trying to master the subject matter, there were a number of items to address before the first word came flowing across my lips, and I thought I would pass them along. 

    Number one, and probably numbers two and three, get to know Amy Funderburk and Fred Wood.  Ms. Funderburk is the Clerk of the Supreme Court, and Mr. Wood handles the Court’s IT, and they are invaluable resources.  Ms. Funderburk and Mr. Wood scheduled one session with the parties to check out the equipment.  She offered to do as many more as you would like.  I accepted her offer and suggest that you do as well.   Like a trial lawyer who visits a new courtroom before the first day of trial to learn her surroundings, each time you have a session with Ms. Funderburk and Mr. Wood you should be in the same place you will use for the argument.  During these sessions, you should check your lighting and sound.  It is not a good day if you cannot be heard.  To ensure you can be, do not use a wireless connection.  No matter how strong you think your connection is, the day you argue there will be a severe thunderstorm or sunspots and you will start breaking up.  There is no “A” for effort at the Supreme Court. 

    Next, which I guess is number four, decide whether you want to sit or stand.  Whichever one you decide to do, do it with Ms. Funderburk and Mr. Wood.  Among the gameday decisions if you stand will be what to do when you are not arguing.  Do I sit and then have the camera capture my less than six-pack abs as I stumble to my makeshift podium or do I walk in and out of the frame.  The Court, I am told, does not care, so we elected to sit for a couple of reasons.  One, it avoided the “what to do when I am not arguing” issue.  Second, it allowed easier access to the record or other information that I had prepared, such as a reference to a list of facts and record citations for the main issues that came up.  By sitting, no one could tell if and when I reached for and relied on those little “cheat sheets.” 

    If you elect to sit, test the distance you are from the camera and its height so you present yourself as cleanly as possible in the frame.  No one wants to look up your nose while you are arguing, and you do not want to be peering down at anyone as you speak.  Adjusting the height can be as easy as placing one or more books under your laptop or moving the camera on your monitor.  Also, if you sit, sit still.  I was able to lock my chair to prevent it from rocking, but I could not find a way to make it so it would not spin, and other chairs were too low.  I tried hard to plant my feet firmly and not move below the waist.  I do not know how successful I was, but I am sure you can sit still longer than a seven-year-old.  Practice it.

    And, while we are testing how we look on screen, practice how you will speak to the screen as well.  Some people may want to stare directly into the camera as they talk to make the others feel like you are looking at them.  Others may want to look at the Justice who asked the question.  I felt uncomfortable staring at the little camera on my laptop while trying to speak or answer questions (I practiced that).  In addition, by looking at the screen, I felt that I could tell when one of the Justices was wanting to ask a question, though there were no hand signals. 

    WebEx allows you to “pin” the participants to one location.  Although I am not sure whether the Justices would play “musical chairs” and float from spot to spot if no one else is entering or leaving the “room,” I did not want to take that chance.  Importantly, I wanted to make sure that I knew where the timer was.  The Court will have the timer as a separate participant and therefore on a separate screen.  Pin it in place.  Although the timer is visible, the lack of proximity decreases the utility of the warning lights.  As a result, if you know where the timer is, you can check it easily throughout your argument. 

    Finally, and to end where this began – do not mute yourself.  Being told by one or more justices you are on mute is not the comment you want.  If you cannot keep quiet for the time your opponent is arguing, get someone else to argue for you. 

    I am sure others have additional tips for arguing in this new age.  Reach out to them.  And, of course, enjoy your thirty minutes of fame. 


  • 15 Jul 2020 9:47 AM | Jennifer Edwards (Administrator)

    By Gary Parsons,
    Brooks Pierce, LLP
    Originally printed in Lawyers Weekly

    I have spent my 43-year legal career in the courtroom as a litigator, including participating in more than 75 trials and 125 appeals. During this time, I have seen the science and psychology of trials evolve. In many cases, litigation has become more a war of attrition than a way to find the truth. Even with all of these changes, there are some fundamental lessons that have helped me in and out of the courtroom,

    Lesson 1: You don’t need to be a pit bull to be successful.

    When a business has been sued, or is considering filing a lawsuit, it is often after a long period of increasing tension and rancor. There may be little good will left between the parties. It’s not uncommon for everyone involved to want to make life difficult for the other side.

    A client’s initial reaction in this situation is often is to hire a “pit bull” – a lawyer seen as fierce, uncompromising and highly combative. Resist this urge, unless you like paying for conflict that does not improve your position.   

    When you do everything you can to make your opponent miserable, at least two things happen – (1) you spend resources fighting about things that could be solved with a phone call or a courteous email, and (2) you can be confident that for every sharp letter, email or contentious motion you fire off, you will likely get the same or worse in return, if only in self-defense. 

    This kind of drama may be entertaining to some, but it costs money. Courtesy will often get you where you want to go, sooner and cheaper.

    When you are faced with the take-no-prisoners opponent, most trial lawyers know how to respond.  The most experienced, effective ones know to try the high road first.

    Lesson 2: Focus on the long-term.

    The litigator’s core role is to resolve disputes – one way or another. Sometimes that means going to trial.  Far more often, it means finding a compromise that works for the client. 

    When a client approaches me about a filing or defending a lawsuit, one of the first questions I ask is “Where do you want to be a year from now?” If the lawsuit will help you get to that goal, we keep going in that direction.  If it won’t help the client’s business, or is likely to cost more than it will yield the client in return, I usually try to persuade them to look at other alternatives.

    Lesson 3: Listen to the client more than you talk.

    One of the biggest mistakes litigators, and attorneys in general, make is talking more than they listen. In initial meetings with clients, it’s important to learn about them, their business, and their goals and objectives. I ask a lot of questions. I need to fully understand the problem so I can help them find the best solution.

    If the client is not doing at least 70 percent of the talking during those initial conversations, I am talking too much.  As a good lawyer once told me, “If I’m talking, I ain’t learning.”

    Lesson 4: In the courtroom, it’s all about the story you tell.

    In a lawyer’s early years, they tend to focus heavily on rules – rules of procedure, rules of evidence, and more.  The longer a lawyer practices, they more they learn that, in the end, it’s the story you tell, and how you tell it, that carries the day.  It needs to be simple, compelling, and presented one piece at a time. 

    Jurors learn visually and auditorily. So show them your story and tell them, at the same time.

    Technology has given us many great tools to present images, both still and video, to help our storytelling.  Use them all – show exhibits on a screen, pop out key passages or images from text or photos on-screen, play videos of critical testimony on cross-examination, make poster-size versions of important images, give jurors copies of material you want them to touch and remember.  You never know which medium will best resonate with a pivotal juror.

    Just don’t get so enthralled with the toys that you forget the story. Jurors have several times remarked to me about how effective it was when I wrote key points on a flip chart during direct and cross-examination.  Surprisingly, I’ve received few remarks on the more elaborate tools we used.

    Lesson 5: Don’t assume you are smarter than the jury.

    One of the worst mistakes I have seen other attorneys make is talking down to jurors.  Jurors sense condescension and will hold it against you and your client.

    Jurors also possess skills and talents the lawyer does not.  No one is highly skilled at everything.  You will have jurors who may have limited formal education but be very gifted at visual-spatial reasoning, mathematics, or many other skills that will be relevant to the story they are asked to judge. 

    Respect those people.  Respect those skills.  It will make you a better advocate – and a better person.

    At the end of the day, being successful as a litigator and as an attorney simply comes down to being courteous, a good listener, a hard worker and a decent human being.

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