Crosmun v. Trs. of Fayetteville Technical Cmty. Coll.

• Decision Date: 06 August 2019
• Docket Number: No. COA18-1054,COA18-1054
• Citation: 832 S.E.2d 223,266 N.C.App. 424
• Court: North Carolina Court of Appeals
• Parties: Dr. Sandra T. CROSMUN, Dr. Michael Hess, Leslie Keenan, Dr. John R. Parker, III, Jamie E. Stevens and Cheryl J. Thomas, Plaintiffs, v. The TRUSTEES OF FAYETTEVILLE TECHNICAL COMMUNITY COLLEGE, Dr. Larry J. Keen, Dr. David L. Brand and Carl Mitchell, Defendants.

266 N.C.App. 424

832 S.E.2d 223

Dr. Sandra T. CROSMUN, Dr. Michael Hess, Leslie Keenan, Dr. John R. Parker, III, Jamie E. Stevens and Cheryl J. Thomas, Plaintiffs,

v.The TRUSTEES OF FAYETTEVILLE TECHNICAL COMMUNITY COLLEGE, Dr. Larry J. Keen, Dr. David L. Brand and Carl Mitchell, Defendants.

No. COA18-1054

Court of Appeals of North Carolina.

Filed: August 6, 2019

Tin, Fulton, Walker & Owen, PLLC, Charlotte, by S. Luke Largess, and Rabon Law Firm, PLLC, by Charles H. Rabon, Jr., Charlotte, Gregory D. Whitaker, and David G. Guidry, for Plaintiffs-Appellees.

Yates, McLamb & Weyher, LLP, Raleigh, by Sean T. Partrick and David M. Fothergill, for Defendants-Appellants.

INMAN, Judge.

Seeking justice often involves enduring tedium. Many attorneys and judges unsurprisingly consider the discovery stage of civil litigation among the most prosaic and pedestrian aspects of practice.¹ A single page among millions of records, however—even one dismissed as irrelevant by the withholding party—may be considered a "smoking gun" to the party seeking its disclosure.

Our discovery rules "facilitate the disclosure prior to trial of any unprivileged information that is relevant and material to the lawsuit so as to permit the narrowing and sharpening of the basic issues and facts that will require trial," Am. Tel. & Tel. Co. v. Griffin , 39 N.C. App. 721, 726, 251 S.E.2d 885, 888 (1979), and are designed to encourage the "expeditious handling of factual information before trial so that critical issues may be presented at trial unencumbered by unnecessary or specious issues and so that evidence at trial may flow smoothly and objections and other interruptions be minimized." Willis v. Duke Power Co. , 291 N.C. 19, 34, 229 S.E.2d 191, 200 (1976). These vital purposes are no less present when electronic discovery ("eDiscovery") is concerned; in many instances, their importance is heightened.²

Electronically stored information, or ESI, "has become so pervasive that the volume of ESI involved in most cases dwarfs the volume of any paper records. This makes ESI the driving force behind the scope of preservation and discovery requirements in many cases[.]" The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production , 19 Sedona Conf. J. 1, 56 (2018) (hereinafter the "Sedona Principles");³ see also Analog Devices, Inc. v. Michalski , 2006 NCBC 14, 2006 WL 3287382, at *5 (N.C. Super. Ct. Nov. 1, 2006) ("It is an inescapable fact that ninety-nine percent of all information being generated today is created and stored electronically. That fact may be shocking to judges who still find themselves buried in paper, but even our court systems are moving, albeit reluctantly, into the age of technology." (citation omitted)).⁴

Despite the general disdain of courts for discovery disputes, in the words of Dorothea Dix, "[a]ttention to any subject will in a short time render it attractive, be it ever so disagreeable and tedious at first." Dorothea L. Dix, Conversations on Common Things; Or, Guide to Knowledge. With Questions. For the Use of Schools and Families. 270 (4th ed. 1832). This appeal presents this Court with our first opportunity to address the contours of eDiscovery within the context of North Carolina common and statutory law regarding the attorney-client privilege and work-product doctrine.

Defendants appeal from an order compelling discovery that allows Plaintiffs’ discovery expert access to Fayetteville Technical Community College's ("FTCC") entire computer system prior to any opportunity for Defendants to review and withhold documents that contain privileged information or are otherwise immune from discovery. Defendants argue that the order compelling discovery constitutes an impermissible involuntary waiver of those privileges.⁵ Plaintiffs argue that the trial court's order, in conjunction with a stipulated protective order consented to by the parties, adequately protects Defendants’ privileges such that no waiver will occur. After careful review, we hold that the trial court abused its discretion by compelling production through a protocol that provides Plaintiffs’ agent with direct access to potentially privileged information and precludes reasonable efforts by Defendants to avoid waiving any privilege. We therefore vacate the order and remand for further proceedings not inconsistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiffs, who are former employees of FTCC, filed suit against Defendants on 7 December 2016, alleging retaliatory dismissals from FTCC in violation of the North Carolina Whistleblower Protection Act. See N.C. Gen. Stat. § 126-84 (2017). One week later, Plaintiffs’ counsel mailed a letter to each Defendant concerning the complaint and informing them of their obligation to preserve ESI in light of the litigation. As the action advanced to discovery, Plaintiffs served two sets of interrogatories and requests for production of documents on Defendants in April and October of 2017. Defendants responded to both sets of discovery requests but objected to certain requests based on attorney-client, attorney work-product, and state and federal statutory privileges.

In January 2018, Plaintiffs served Defendants with a third set of interrogatories and requests for production; Plaintiffs also mailed Defendants’ counsel a letter asserting their discovery responses were incomplete and expressing concern that Defendants had destroyed responsive ESI. In February 2018, Defendants’ counsel responded by letter denying any spoliation, rejecting Plaintiffs’ claim that certain responses were incomplete, and agreeing to produce newly discovered additional responsive documents. Dissatisfied with Defendants’ response, Plaintiffs’ counsel sent additional letters reiterating their discovery demands. Plaintiffs followed their letters with a motion to compel requesting the trial court "[o]rder that the parties identify a computer forensics entity or individual who, at Defendants’ cost, will search the computer servers at FTCC to determine if Defendants have deleted emails and files pertaining to these discovery requests."

Plaintiffs’ motion came on for hearing on 26 February 2018 before Superior Court Judge Douglas B. Sasser. At that hearing, Judge Sasser issued an oral ruling requiring a forensic computer examination of FTCC's servers and tasked the parties with submitting a proposed order.

Judge Sasser's oral ruling did little to quell the parties’ disagreement, and instead shifted their focus from what should be produced to what should appear in the proposed order. Defendants objected to Plaintiffs’ first proposed order on the ground that general language permitting Plaintiffs to search FTCC's "computer files" for "deleted material" was over-broad, as it required a search of all of FTCC's systems for any and all documents without limitation. Plaintiffs refused to revise the proposed order and reiterated their belief that a search of FTCC's entire system was both necessary and allowed by Judge Sasser's ruling. Defendants then drafted their own proposed order. Plaintiffs then revised their proposed order slightly and suggested Defendants draft a consent protective order to address concerns relating to the production of student information. Defendants objected that Plaintiffs’ revised order did not adequately protect privileged information or appropriately limit the scope of discoverable materials. But Defendants agreed to draft a protective order for consideration by the trial court and Plaintiffs.

While the above discussions were ongoing, and roughly two weeks after the hearing before Judge Sasser, Defendants provided Plaintiffs with a supplemental document production. Defendants also informed Plaintiffs that they had yet to complete a draft protective order, as the model protective orders they were working from "only covered inadvertent disclosure of confidential material[,]" and "[i]t has been much more difficult to address privilege issues under a forensic search situation." Plaintiffs replied that they would draft a proposed protective order prohibiting the disclosure of information protected by the Family Educational Rights and Privacy Act of 1974 ("FERPA"). Counsel for Defendants rejected that offer, expressing concern about how to prevent disclosure of materials within the attorney-client privilege or work-product immunity. As discussions surrounding the protective order continued, Plaintiffs submitted the parties’ competing proposed orders on the motion to compel to Judge Sasser.

Judge Sasser entered Plaintiffs’ proposed order on the motion to compel on 16 April 2018 (the "Forensic Examination Order"). In it, Judge Sasser provided for "a forensic examination of [FTCC's] computer files" by a "forensic examiner." The order also provided that "the parties shall work with the examiner to agree on key words and other search parameters to use in conducting this forensic review, which will cover the period from ... July 2014 to the present[,]" and that "Plaintiff's shall bear the initial costs of the forensic review." However, the Forensic Examination Order did not address how a forensic examiner would be selected, whether the examiner would be an independent third party, or how the forensic examination itself would be conducted, and it left resolution of any confidentiality concerns to a future protective order to be submitted by the parties at a later date.

Plaintiffs retained Clark Walton ("Mr. Walton"), an expert in computer forensics and a licensed North Carolina attorney, to draft a proposed forensic examination protocol to effectuate the Forensic Examination Order. As part of that process, Defendants permitted Mr. Walton to question members of FTCC's Information Technology department about the nature of the college's computer systems. Plaintiffs then submitted a proposed forensic examination protocol to Defendants for their consideration on 21 May 2018.⁶ The...