Boyce & Isley, Pllc v. Cooper

• Decision Date: 17 March 2009
• Docket Number: No. COA08-313.,COA08-313.
• Citation: 673 S.E.2d 694
• Court: North Carolina Court of Appeals
• Parties: BOYCE & ISLEY, PLLC, Eugene Boyce, R. Daniel Boyce, Philip R. Isley, and Laura B. Isley, Plaintiffs v. Roy A. COOPER, III, The Cooper Committee, Julia White, Stephen Bryant, and Kristi Hyman, Defendants.

673 S.E.2d 694

BOYCE & ISLEY, PLLC, Eugene Boyce, R. Daniel Boyce, Philip R. Isley, and Laura B. Isley, Plaintiffs v. Roy A. COOPER, III, The Cooper Committee, Julia White, Stephen Bryant, and Kristi Hyman, Defendants.

No. COA08-313.

Court of Appeals of North Carolina.

March 17, 2009.

Appeal by defendants from orders entered 18 April 2006 and 12 December 2007 by Judge John B. Lewis, Jr. in Wake County Superior Court. Heard in the Court of Appeals 22 October 2008.

Boyce & Isley, PLLC, by G. Eugene Boyce, Philip R. Isley, and Laura B. Isley, Raleigh, plaintiff-appellee, pro se.

Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by Jim W. Phillips, Jr. and Charles E. Coble; Smith Moore LLP, by Alan W. Duncan and Allison O. Van Laningham, Greensboro, for defendant-appellants.

HUNTER, ROBERT C., Judge.

Defendants North Carolina Attorney General Roy A. Cooper, III, his campaign committee for the 2000 election for North Carolina Attorney General (the "Cooper Committee"), and three employees of the Cooper Committee, Julia White, Stephen Bryant, and Kristi Hyman, (hereinafter, collectively referred to as "defendants"), appeal from an interlocutory order entitled "Order, Following In Camera Review, On Plaintiffs' Motion Regarding Defendants' Compliance with Protective Order" entered by Judge John B. Lewis, Jr. ("Judge Lewis") on 12 December 2007 and from the "Order on Plaintiffs' Motion Regarding Defendants' Compliance with Protective Order" entered by Judge Lewis on 18 April 2006¹, which was "incorporated . . . by reference" into the 12 December 2007 Order. Plaintiff G. Eugene Boyce ("Mr.Boyce"), appearing pro se, cross-assigns error² to Judge Lewis's 12 December 2007 Order. After careful review, we affirm in part and reverse in part.

I. Background

The underlying case in this appeal began over eight years ago on 22 November 2000, when the law firm of Boyce & Isley, PLLC, and its members, Mr. Boyce, R. Daniel Boyce ("Dan Boyce"), Phillip R. Isley, and Laura B. Isley (hereinafter, collectively referred to as "plaintiffs"), filed a complaint in Wake County Superior Court alleging that defendants published a false and fraudulent political television advertisement (the "advertisement") regarding Dan Boyce and Boyce & Isley, PLLC during the 2000 election campaign for the office of North Carolina Attorney General. Dan Boyce and Mr. Cooper were opponents in the November 2000 general election for Attorney General. The audio portion of the advertisement stated:

I'm Roy Cooper, candidate for Attorney general, and I sponsored this ad. Roy Cooper, endorsed by every major police organization for his record of tougher crime laws. Dan Boyce—his law firm sued the State, charging $28,000 an hour in lawyer fees to the taxpayers. The judge said it shocks the conscience. Dan Boyce's law firm wanted more than a police officer's salary for each hour's work. Dan Boyce, wrong for Attorney General.

The lawsuits to which the ad apparently referred were a group of class action lawsuits brought on behalf of thousands of plaintiffs alleging that taxes levied by the State were unconstitutional. Dan Boyce or members of the plaintiff law firm allegedly served as counsel to the plaintiffs in each of those cases, and plaintiffs referred to the cases in various campaign materials and on their law firm's website.

Boyce & Isley, PLLC v. Cooper, 169 N.C.App. 572, 574, 611 S.E.2d 175, 176 (2005) (hereinafter, "Boyce II"). The advertisement specifically referenced Smith v. State, 349 N.C. 332, 507 S.E.2d 28 (1998) (hereinafter, "Smith A").

Plaintiffs alleged that the advertisement defamed Dan Boyce, the Republican nominee for the Office of Attorney General, and the member attorneys of Boyce & Isley, PLLC. Specifically, they asserted that defendants' publication of the advertisement was defamatory per se and constituted unfair and deceptive trade practices ("UDTP"). They further asserted that defendants had conspired to violate N.C. Gen.Stat. § 163-274(8), which prohibits "any person [from] publish[ing] . . . derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity when such report is calculated or intended to affect the chances of such candidate for . . . election[.]"

The instant case is the third time this Court has been asked to address issues pertaining to the underlying case. Boyce & Isley, PLLC v. Cooper, 153 N.C.App. 25, 568 S.E.2d 893 (2002) (hereinafter, "Boyce I"), appeal dismissed and review denied, 357 N.C. 163, 580 S.E.2d 361 (2003); see also Boyce II, 169 N.C.App. at 572, 611 S.E.2d at 175. In Boyce I, 153 N.C.App. at 39, 568 S.E.2d at 904, this Court held that plaintiffs had presented sufficient claims upon which relief could be granted for defamation and UDTP³, and in Boyce II, 169 N.C.App. at 578, 611 S.E.2d at 178-9, this Court dismissed as interlocutory defendants' appeal of the trial court's denial of defendants' motion for judgment on the pleadings. A more detailed summation of the facts regarding the underlying case can be found in Boyce I.

Here, the instant appeal involves issues which stem from a pretrial discovery dispute between the parties and specifically center on what should be done with certain verbatim text which one of defendants' attorneys, Patti Ramseur ("Ms.Ramseur") copied into her laptop computer from Mr. Boyce's client files on 12 September 2005. Prior to addressing this issue, we first discuss the procedural background of this case as it relates to discovery.

On 9 May 2003, pursuant to N.C.R. Civ. P. 26, defendants filed a "Motion for Protective Order" to govern the conduct of discovery between the parties. On 1 July 2003, then Chief Justice Lake designated this case as exceptional pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts and assigned the case to Judge Lewis. On 17 September 2003, Judge Lewis entered a "Protective Order" providing rules and procedures to govern the discovery process between the parties, particularly with regard to the discovery of confidential or privileged information.⁴

On 1 September 2005, defendants' counsel sent plaintiffs letters via facsimile and United States Mail asking them to, inter alia, reply to their prior discovery requests for, inter alia: documentation pertaining to the "Smith A, Bailey/Emory/Patton, Smith/Shaver, and Faulkenbury/Woodard/Peele/Hailey Cases", particularly documents related to attorney time and billing records, correspondence between plaintiffs, documents related to the receipt and distribution of fees, documents sent to prospective clients, and other documents related to attorney work on the tax cases. Defendants contended that these materials were relevant and discoverable in part due to plaintiffs' claim that the advertisement was false because Dan Boyce did not work on Smith A or the other tax cases even though Dan Boyce's campaign materials stated that he did work on these cases. On 9 September 2005, defendants filed a "Motion to Compel Responses to Discovery Requests" which sought the production of, inter alia, the aforementioned materials.

Mr. Boyce was counsel of record in the aforementioned cases and possessed documents and records pertaining to them at his home office in Raleigh, North Carolina. Though plaintiffs offered to pay the copying costs, Mr. Boyce refused to copy and produce the requested documents, which he asserted were too voluminous. However, he did agree to permit defendants' counsel to inspect files related to the tax cases at his home office.

On 12 September 2005, Ms. Ramseur and a legal assistant traveled to Mr. Boyce's home office to undertake an inspection. There, Mr. Boyce informed Ms. Ramseur that documents from the following cases were available for inspection: "Smith v. State of North Carolina (95 CvS 6715), Shaver et al. v. State of North Carolina (98 CvS 00625), the consolidated cases of Smith v. State of North Carolina and Shaver et al. v. State of North Carolina (95 CvS 6715 and 98 CvS 00625), the Fulton case, the Bailey/Emory/Patton cases, and the disabled retiree cases." Mr. Boyce did not individually mark these documents as confidential or as otherwise protected from discovery.

Ms. Ramseur informed Mr. Boyce that she had brought a laptop computer to take notes, but that she had forgotten to bring a power cord. Mr. Boyce offered one of his power cords and assisted her with plugging in the computer. With the exception of a few brief moments, Mr. Boyce remained in the room during the entire 12 September 2005 document inspection. At no time did Mr. Boyce ask defendants' counsel not to take notes, nor did he take any action to end the inspection process on that date.

At a 15 September 2005 hearing, Mr. Boyce informed Judge Lewis of certain activities that occurred during the 12 September document inspection. Specifically, he told the court that during the 12 September inspection, he believed that Ms. Ramseur was not solely marking the documents she wanted copied or making a list of said documents; rather, she appeared to enter into her laptop computer what appeared to be verbatim text from the documents contained in his client files from the tax cases. Plaintiffs argued that this violated the Protective Order, which they asserted merely allowed defendants to inspect, designate, and make a list of which documents they wanted Mr. Boyce to copy, but not to copy any documents or text from said documents without Mr. Boyce's explicit approval. Consequently, plaintiffs contended that defendants were required to return the text to Mr. Boyce so that he could make a determination as to whether the text Ms. Ramseur had copied was "confidential" or "highly confidential."

Defendants argued that Ms. Ramseur's actions did not violate the Protective Order because Mr. Boyce should have specifically delineated each document as confidential or highly confidential prior to making...