You'd Better Have A Real Expert If You're Making A Malpractice Claim In N.C. Business Court

The Business Court dismissed a legal malpractice claim right before Thanksgiving last week in Inland American Winston Hotels, Inc. v. Winston , 2010 NCBC 19 . Judge Tennille found Plaintiff's expert, a Duke Law School professor, to be incompetent to testify to the Defendant lawyer's alleged breach...

Business Court Orders Japanese CEO To Appear In The United States For Deposition

So much of discovery depends on agreement: for example, where and when will the officers of an out of state corporate defendant appear for their depositions. And what about an out of country defendant? Can you make their representatives appear in the United States for a deposition if you can't persuade...

North Carolina Judge Condemns 'Stinky Fees' Paid To Lawyers Suing Over Merger Transactions

In one of his final actions as a Business Court Judge, Judge Tennille threw down the gauntlet for lawyers representing class action plaintiffs who are seeking approval of settlements. Last week in Ward v. Lance, Inc. , Judge Tennille condemned what he called "stinky fees," which he said "just...

Mack Sperling: The 4th Circuit On Recusals And Pro Hac Vice Admissions

We all sometimes say things that we are sorry to have said. Even judges. Those types of statements by a District Court Judge in South Carolina, which the Fourth Circuit called "neither wise nor temperate" were the subject of a recusal motion ruled on last week by the Fourth Circuit, in Belue...

High Court Delivers 2 Of Its Most Significant Opinions On Personal Jurisdiction In 25 Years

On June 27, the United States Supreme Court delivered two of its most significant opinions on the subject of personal jurisdiction in nearly twenty-five years (since Asahi Metal Ind. Co. v. Superior Court of California , 480 U.S. 102(1987) [ an enhanced version of this opinion is available to lexis.com...

Mack Sperling Updates 6 Cases In North Carolina Business Court

Standing to Object to Subpoenas to Non-Party Banks In Deyton v. Estate of Kenneth C. Waters, Jr. , 2011 NCBC 34, Judge Gale ruled that a party to a lawsuit lacked standing to object to a subpoena sent by the opposing party to a non-party bank. The Judge observed that "as a general proposition...

Broadly Worded Defense In Company Sale Case Results In Waiver Of Attorney-Client, Work Product Privileges

A broadly worded defense in a case challenging the sale of a company resulted in a waiver of the attorney-client and work product privileges last week, in Richardson v. Frontier Spinning Mills, Inc. Richardson claimed that the company had improperly structured its sale so that non-employee shareholders...

North Carolina Revises Rules Of Civil Procedure For Electronically Stored Information

Revisions to the North Carolina Rules of Civil Procedure became effective to actions filed on or after October 1, 2011. A blacklined version showing the changes wrought by a law titled an "Act to clarify the procedure for discovery of electronically stored information and to make conforming changes...

'Restyled' Federal Rules Of Evidence Take Effect Dec. 1

If you are trying a case in in federal court after December 1, 2011, you'd better bring a new copy of the Federal Rules of Evidence. Don't lose any sleep, because the substance of the Rules hasn't changed, they've only been "restyled." This reworking of the FRE was aimed at...

North Carolina Appeals Court Rules In Law Firms' Fight Over Contingent Fees

There's invariably a fight between lawyers over the division of a fee when a lawyer who left the firm generates a fee at his new firm from a preexisting contingent fee relationship. There's at least one case of that type in the Business Court ( Mitchell, Brewer, Richards, Adams, Burge & Boughman...

5 Reasons To Care About North Carolina Business Court Rulings

The NC Court of Appeals said earlier this month in Browne v. Thompson [ enhanced version available to lexis.com subscribers ] that the decisions of the Business Court have "no precedential value." Being a big fan of the Business Court, that rankled me. And being the author of a blog which focuses...

North Carolina Business Court Socks Overly Persistent Plaintiff With Attorneys' Fees

Persistence can be a valuable quality, but when it leads to an unjustified refusal to give up a questionable case, the party suffering from persistency can get socked with attorneys' fees. That was the result in Judge Gale's Order on [June 12] in McKinnon v. CV Industries, Inc. , No. 09 CVS 830...

In Landmark E-Discovery Decision For North Carolina, Judge Rules Attorney-Client Privilege Waived

In a classic understatement, Judge Gale said in a North Carolina Business Court opinion last Thursday that " North Carolina case law addressing problems inherent in electronic discovery. . .is not yet well developed ." Op. ¶50. But in Blythe v. Bell , 2012 NCBC 42 [ enhanced version available...

North Carolina State Bar Proposes New Formal Ethics Opinion

The intersection of technology and the rules of ethics continues to develop. The NC State Bar has proposed a new FEO ( 2012 Formal Ethics Opinion 5 ), which deals with the interesting question of the attorney-client privilege of an employee's emails to her personal lawyer that are on her employer's...

North Carolina Business Court Finds Defendant Waived Right To Compel Arbitration After Class Action Certified

You probably remember the earlier opinion in Elliott v. KB Home, Inc. , in which Judge Jolly certified a class action against the homebuilder KB Home over the improper installation of HardiePlank siding. Last week, the Business Court ruled in another opinion in the case ( 2012 NCBC 55 ) that KB Home...

Testimony Of Financial Expert On Lost Profit Damages Excluded By North Carolina Court

The case of Blythe v. Bell is like the gift that keeps on giving. It generated two significant opinions last year, and this week a third and a fourth. The July 2012 opinion was a major e-discovery decision, and the December 2012 opinion addressed an important issue about the assignment of LLC interests...