             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-602

                                Filed: 21 May 2019

Nash County, No. 17 CVS 1405

CORTNEY TAYLOR and CALISTA KAJ BURTON TAYLOR, Plaintiffs,

            v.

MARK PERNI, D.O.; JENNIFER ANGELILLI; BESTPRACTICES OF WEST
VIRGINIA, INC.; and BESTPRACTICES, INC., Defendants.


      Appeal by Plaintiffs from Order entered 17 February 2018 by Judge Walter H.

Godwin, Jr. in Nash County Superior Court. Heard in the Court of Appeals 30

January 2019.


      Wyrick Robbins Yates & Ponton LLP, by Paul J. Puryear, Jr., and Bordas &
      Bordas, PLLC, by J. Zachary Zatezalo, for plaintiffs-appellants.

      Poyner Spruill LLP, by J. Nicholas Ellis and Dylan J. Castellino, for nonparty-
      appellee Daniel G. Kirkpatrick.


      MURPHY, Judge.


      The trial court abused its discretion by granting a motion to quash a subpoena

under Rule 45(c)(3)(b) of the North Carolina Rules of Civil Procedure when it failed

to review an outside contract that allegedly protected the information sought under

the subpoena and granted the motion solely on the basis of the moving party’s

assertion that the contract protected the information. We reverse and remand for

further proceedings.
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                                        Opinion of the Court



                                        BACKGROUND

       Plaintiffs, Cortney Taylor and Calista Burton Taylor (“the Taylors”), brought

several claims in a medical malpractice action in West Virginia against numerous

Defendants, including BestPractices, Inc. (“BestPractices”). BestPractices provided

“emergency and hospitalist staffing and management solutions to hospitals and

healthcare institutions.”         When the events underlying the Taylors’ medical

malpractice action occurred, Daniel G. Kirkpatrick (“Kirkpatrick”) was then

employed in a corporate position by BestPractices, and subsequently EmCare, Inc.

(“EmCare”) following its acquisition of BestPractices. In his role as Vice-President of

Operations, Kirkpatrick “worked with the financial team with emphasis on business

and financial aspects of the company’s operations.”

       Kirkpatrick was not a party to the civil action against Best Practices and other

Defendants; however, on 21 September 2017, the Nash County Superior Court1

issued a subpoena ordering Kirkpatrick to appear and testify at a deposition and

produce various documents related to his employment with Best Practices and, later,

EmCare. Kirkpatrick’s deposition was scheduled to take place on 16 October 2017.

That morning, Kirkpatrick filed a Motion to Quash Subpoena in Nash County

Superior Court. Kirkpatrick claimed that, when he ended his employment with

EmCare in 2013, he signed a separation agreement that “precluded him from


       1  While the underlying civil action was filed and ongoing in West Virginia, Kirkpatrick was a
resident of Nash County.

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disclosing non-public information acquired by virtue of his employment.” As such,

Kirkpatrick argued the subpoena should be quashed under Rule 45(c)(3)(b) of the

North Carolina Rules of Civil Procedure, as it required disclosure of privileged or

other protected matter and that no exception or waiver applied to the privilege or

protection.

      The sole document attached in support of Kirkpatrick’s motion to quash was

his own affidavit, attempting to serve as parol evidence of the alleged agreement. It

stated, in relevant part:

              15. At the time of execution, it was my understanding and
              expectation that the Separation Agreement precluded me
              from disclosing any and all information that I acquired by
              virtue of my employment with BestPractices or EmCare
              which was not otherwise available to third parties.

              16. At the time of execution of my Separation Agreement,
              it was my understanding and expectation that the contents
              of the document itself were confidential.

              17. At the time of execution, it was my understanding and
              expectation that the obligation to maintain confidentiality
              of proprietary information and the contents of the
              Separation Agreement survived the general term of the
              Separation Agreement and the termination of my
              employment with EmCare.

      The trial court held a hearing on the motion to quash on 2 January 2018.

Kirkpatrick’s counsel informed the trial court that he had a copy of the separation

agreement should the trial court wish to review the agreement and its non-disclosure

terms in camera. However, the trial court did not review the separation agreement


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and later issued its order on 23 February 2018 granting the motion to quash pursuant

to Rule 45(c)(3) and (5). The Taylors timely appeal.

                                     ANALYSIS

      The Taylors argue the trial court abused its discretion in granting the motion

to quash. Specifically, they argue the trial court abused its discretion by determining

Kirkpatrick’s separation agreement with EmCare rendered the information sought

under the subpoena non-discoverable solely on the basis of Kirkpatrick’s affidavit.

We agree.

      “When reviewing a trial court’s ruling on a discovery issue, [we] review[] the

order of the trial court for an abuse of discretion.” Midkiff v. Compton, 204 N.C. App.

21, 24, 693 S.E.2d 172, 175, cert. denied, 364 N.C. 326, 700 S.E.2d 922 (2010). Abuse

of discretion occurs upon a showing that the trial court’s ruling “was manifestly

unsupported by reason and could not have been the result of a reasoned decision.”

Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., 370 N.C. 235,

241, 805 S.E.2d 664, 669 (2017) (citation and internal quotation marks omitted).

      Rule 45 of the North Carolina Rules of Civil Procedure requires the trial court

to “quash or modify the subpoena if the subpoenaed person demonstrates the

existence of any of the reasons set forth in subdivision (3) of this subsection.”

N.C.G.S. § 1A-1, Rule 45(c)(5) (2017). Rule 45(c)(3) states in relevant part:

             (3) Written objection to subpoenas. – . . . Each of the
             following grounds may be sufficient for objecting to a


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                subpoena:

                       (b) The subpoena requires disclosure of privileged or
                       other protected matter and no exception or waiver
                       applies to the privilege or protection.

N.C.G.S. § 1A-1, Rule 45(c)(3)(b) (2017).2

           We have not directly addressed what a party objecting to a subpoena under

Rule 45(c)(3)(b) must show or what the trial court must review in a situation where

the movant is claiming that the subpoena requires disclosure of matters protected by

an outside contract, if ever possible.           In the discovery setting, generally, “[t]he

decision to conduct in camera review rests in the sound discretion of the trial court.”

Lowd v. Reynolds, 205 N.C. App. 208, 213, 695 S.E.2d 479, 483 (2010) (citation and

internal quotation marks omitted). Thus, the trial court is not required to conduct

an in camera review in all circumstances involving allegedly privileged documents.

However, our caselaw makes clear that mere assertions of the existence of a privilege

or protection, without more, do not establish such.

       In Miles v. Martin, 147 N.C. App. 255, 555 S.E.2d 361 (2001), we addressed the

burden of a party seeking to assert the recognized attorney-client privilege in

response to a motion to compel documents. We noted that “[m]ere assertions by a

party or its attorneys” of the existence of the attorney-client privilege is insufficient

to establish the attorney-client privilege. Id. at 260, 555 S.E.2d at 364 (citation,


       2 Rule 45(c)(3)(b) is the only ground under subsection (3) under which Kirkpatrick objected to
the subpoena.

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alterations, and internal quotation marks omitted). We held, “the party asserting the

privilege can only meet its burden by providing some objective indicia that the

exception is applicable under the circumstances.” Id. at 259-60, 555 S.E.2d at 364

(citation and internal quotation marks omitted) (emphasis in original). We believe

the same showing of objective indicia is required when a movant objects to a subpoena

under Rule 45(c)(3)(b) by asserting that the subpoena requires disclosure of matters

alleged to be privileged or protected by an outside contract and that no exception or

waiver applies to the privilege or protection. To hold otherwise would allow a party

to invoke Rule 45(c)(3)(b) with a “mere utterance” of privilege or protection. See

Multimedia Pub’g of N.C., Inc. v. Henderson County, 136 N.C. App. 567, 576, 525

S.E.2d 786, 792 (2000).

      Here, the trial court did not conduct an in camera review of the separation

agreement between Kirkpatrick and EmCare, and the contents of the agreement were

never disclosed to the trial court. The trial court thus based its decision to grant the

motion to quash solely on the affidavit Kirkpatrick submitted in support of his

motion.   Of course, affidavits may be used in demonstrating the existence of a

privilege or protection. See Estate of Ray v. Forgy, 245 N.C. App. 430, 441-42, 783

S.E.2d 1, 9 (2016). Kirkpatrick’s affidavit, however, did not demonstrate objective

indicia that the separation agreement protected the information to be disclosed under

the subpoena.



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      Kirkpatrick provided no testimony in his affidavit about the content of the

separation agreement, claiming, “It was my understanding and expectation that the

contents of the separation agreement itself would be confidential.” There was no

showing before the trial court regarding the content of the separation agreement, its

specific terms, its scope, the intent of the agreement, or how such language would be

privileged beyond the contracting parties’ desire for it be so.      Instead, the only

showing Kirkpatrick made as to the separation agreement’s applicability to the

information sought under the subpoena was his “understanding and expectation” that

the separation agreement would preclude employees from disclosing any and all

information acquired by virtue of their employment.

      A party’s personal interpretation of what a contract precludes without any

showing as to the actual contents of the contract is not objective indicia, nor is it a

sound legal basis for a privilege. It is the functional equivalent of a mere allegation.

See Hammond v. Saini, 367 N.C. 607, 611, 766 S.E.2d 590, 592 (2014) (“Instead, the

affidavit merely recites the language of the statute and offers the conclusory

assurance that each requirement has been satisfied.”). To allow a party’s motion to

quash under Rule 45(c)(3)(b) based only upon his or her claim that the mere existence

of a contract protects information to be disclosed, without more, would be to allow a

party’s incantation of protection as an “abracadabra to which [we] must defer

judgment.” See Multimedia Pub’g of N.C., Inc., 136 N.C. App. at 576, 525 S.E.2d at



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792 (quoting MacLennan v. American Airlines, Inc., 440 F. Supp. 466, 472 (E.D. Va.

1977).

         Kirkpatrick cites a line of cases where we have held the trial court did not

abuse its discretion in failing to review documents sought to be discovered in camera,

arguing a similar outcome is required here. Midkiff v. Compton, 204 N.C. App. 21,

693 S.E.2d 172, cert. denied, 364 N.C. 326, 700 S.E.2d 922 (2010); Lowd v. Reynolds,

205 N.C. App. 208, 695 S.E.2d 479 (2010); State v. Love, 100 N.C. App. 226, 395 S.E.2d

429 (1990). The question before us in those cases, however, is not that which is before

us here.

         In Midkiff, for example, the plaintiff had waived the physician-patient

privilege, a legally recognized privilege, and was challenging the trial court’s failure

to conduct an in camera review “to prevent disclosure of irrelevant or causally

unrelated evidence.” Midkiff, 204 N.C. App. at 35, 693 S.E.2d at 181 (emphasis

added); see also Lowd, 205 N.C. App. at 213-14, 695 S.E.2d at 483-84 (citing the

rationale in Midkiff for why the trial court did not abuse its discretion in refusing to

review the documents for relevancy). In Love, we stated, “there is no requirement

that a trial court review the records and files of non-parties sought pursuant to a

subpoena duces tecum prior to quashing . . . .” Love, 100 N.C. App. at 231, 395 S.E.2d

at 432 (emphasis added). The question before us in those cases was, therefore,

whether the trial court abused its discretion in failing to: (1) review the documents



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                                  Opinion of the Court



sought under the subpoena (2) for their relevancy. Neither is the issue before us.

Here, the trial court was not ruling on the relevancy of actual documents sought

under the subpoena, but, rather, whether an outside contract rendered these

documents protected. Defendant’s citation to these holdings and his subsequent

argument is misplaced.

      Accordingly, the trial court abused its discretion in granting Kirkpatrick’s

motion to quash pursuant to Rule 45(c)(3)(b) solely on the basis of Kirkpatrick’s

affidavit containing no more than mere allegations that the separation agreement as

an outside contract protected the information sought under the subpoena. We need

not address the Taylors’ remaining alternative arguments or whether such a private

agreement can create such a privilege or protection.

                                  CONCLUSION

      Kirkpatrick’s affidavit contained no more than mere allegations that the

separation agreement protected the information sought under the subpoena and thus

provided no objective indicia that this separation agreement protected the

information.   The trial court, without reviewing the contents of the separation

agreement, abused its discretion in granting the motion to quash pursuant to Rule

45(c)(3)(b) solely on this basis. We reverse and remand to the trial court for further

proceedings on the motion to quash not inconsistent with this opinion.

      REVERSED AND REMANDED.



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Judges DILLON and ARROWOOD concur.




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