              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1055

                                  Filed: 15 May 2018

Mecklenburg County, No. 16 CVS 19851

GEA, INC., VALARIA DEVINE and LESLIE FARKAS, Plaintiffs,

             v.

LUXURY AUCTIONS MARKETING, INC. and JEREMY LECLAIR, Defendants.


      Appeal by defendants from order entered 10 July 2017 by Judge Hugh B. Lewis

in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 March 2018.


      No brief filed for plaintiffs-appellees.

      Law Offices of Paul Vancil, by Paul Vancil, for defendants-appellants.


      ZACHARY, Judge.


      Defendants Luxury Auctions Marketing, Inc. and Jeremy LeClair appeal from

the trial court’s order imposing sanctions against Luxury and LeClair (together,

“Luxury”) for failing to comply with a discovery order of the court. We affirm.

                                         Background

      The litigation at issue arose out of a business dispute between Luxury and

plaintiffs GEA, Inc., Leslie Farkas, and Valaria DeVine (together, “GEA”). Ms.

DeVine formed GEA and the company 4K&D roughly seventeen years ago as luxury

residential auction companies. Ms. DeVine’s companies were highly successful, in

part due to (1) GEA’s ownership of valuable trademarks, (2) GEA’s ownership of 47

registered domain sites, and (3) a large customer database that GEA and Ms. DeVine
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had assembled over the years. In January 2016, Ms. DeVine hired Mr. LeClair as

4K&D’s Director of Operations.

      On 25 April 2016, Ms. Devine’s husband, Leslie Farkas, formed Luxury.

Luxury was formed “to generate new listings for auction and to market the properties

that were placed under contract for auction.” Five days after Luxury was formed,

4K&D sold all of its tangible assets—specifically, equipment, furniture, and office

fixtures—to Luxury.

      Shortly after his hire, Mr. LeClair became aware that Ms. DeVine and Mr.

Farkas were interested in selling their businesses, and approached them about the

possibility of purchasing the companies. The parties entered into a period of

discussions and negotiations, culminating in the agreement of Ms. DeVine and Mr.

Farkas to sell Luxury to Mr. LeClair. Ms. DeVine and Mr. Farkas retained ownership

of GEA.

      The parties executed Luxury’s sale on 8 August 2016. The sale took the form

of a Stock Purchase Agreement, by which Mr. Farkas sold all of his shares in Luxury

to Mr. LeClair. GEA then issued revocable, non-exclusive, ten-year licenses to Luxury

in certain trademarks, software, and intellectual property. Pursuant to the licenses,

Luxury could transact business under GEA’s trademark, could use GEA’s registered

domain site, and could access GEA’s valuable customer database. Ms. DeVine and

Mr. Farkas agreed to allow Mr. LeClair to defer the entire purchase price by making



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annual payments over the ten-year term of the agreement. Among other payment

provisions, Luxury “agreed to pay 10% of each gross commission received by [Luxury]

for the first ten years of the agreement, . . . for [the] revocable, non-exclusive license

Agreement.”

       Conflict arose between the parties shortly after the purchase, which ultimately

led to Luxury filing a complaint against GEA on 3 November 2016. GEA answered

and asserted eleven counterclaims against Luxury. Luxury thereafter voluntarily

dismissed its claims against GEA, leaving only GEA’s counterclaims pending before

the trial court.

       GEA’s counterclaims set forth an array of complicated factual allegations

against Mr. LeClair and Luxury and asserted causes of action for, inter alia, unpaid

royalties and license fees, improper use and transfer of a software license and the

customer database, conversion of computers and other GEA property, trademark

infringement, conversion, and harassment.

       Much of the information pertaining to GEA’s counterclaims, and the proof

thereof, was alleged to be stored in the various company computers and individual

computers used by Luxury’s employees1. However, after LeClair acquired Luxury,

LeClair moved Luxury’s offices and, according to GEA, “took all the computer

equipment, hard drives, printers, copiers, related equipment and numerous files



       1   The parties dispute the ownership of these computers.

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containing business and personal information having nothing to do with [Luxury].”

Accordingly, GEA served Luxury with a discovery request on 1 March 2017 for

inspection of the computers and equipment.

      At Mr. LeClair’s 8 May 2017 deposition, however, Luxury’s counsel informed

GEA that Mr. LeClair destroyed the computers after the litigation had commenced.

Mr. LeClair testified to the following at his deposition:

             Q.    Do you recall Mr. Farkas making a demand for the
             return of his personal computer?

             A.     I do.

             ...

             Q.     Where is that computer today?

             A.     That computer has been discarded.

             Q.     Where was it discarded?

             A.     I believe the Mecklenburg recycling, whatever it’s
             called, recycling, trash dump.

             ...

             Q.     Did you discard the computer?

             A.     I did.

             ...

             Q.     How many computers did you move from the [office]?

             A.    I don’t have a specific number, but the majority of
             the computers, if not all.


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              Q.     There was a server, correct?

              A.     Yes.

              ...

              Q.     What about the laptops used by [Luxury], where are
              those?

              A.    What about them? Those have been discarded as
              well.

              ...

              Q.      Have all of the computers transported from [the
              office] been discarded?

              A.     Yes.

Mr. LeClair also testified that he knew that GEA sought “return of these computers

as part of [the] claims in the litigation”:

              Q.     You knew that they--that my clients were seeking
              this--the return of these materials, correct?

                     MR. VANCIL: ‘These materials’ being what?

                     BY MR. LANDRUM:
              Q.     The return of these computers, correct?

              A.    I know they were seeking them; but whether they
              were--you know, they were owned by LAMI, so whether
              they were seeking them or not, that’s just a . . . These were
              our computers owned by us and we had the right to do with
              them as we pleased.

              Q.      But you knew that these items were disputed in the
              litigation, correct?


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             A.     Not by us. I mean, we--well, excuse me, I understand
             that--I understand that there was a dispute based on what
             they had stated versus what we had stated, yes, I agree with
             that, yes.

             ...

             Q.    . . . You knew that Ms. DeVine was requesting the
             return of those computers, correct?

             A.     I also knew that Ms. DeVine was requesting millions
             of dollars in damages, so, you know, whatever she was
             requesting or wanted, to me, at that point, you know, wasn’t
             really a concern.

In addition, Mr. LeClair repeatedly stated, “I am definitely 100 percent not agreeing

to inspect my personal laptop, so you’ll have to discuss that with my counsel.”

      GEA thereafter filed a motion to compel discovery, “specifically the inspection

of computers pursuant to Rule 34” of the North Carolina Rules of Civil Procedure,

dated 10 May 2017. GEA maintained that Luxury

             ha[s] refused to permit the inspection and, in fact, now
             claim[s] to have destroyed the computers subject to the
             Rule 34 request. [GEA] move[s] for an order compelling
             inspection of the computers or any copies or backups
             thereof or, in the alternative, [GEA] move[s] for an order
             compelling a sworn certification from [Luxury] that no such
             copies or backups exist and for sanctions for the
             destruction of the computers, or any copies or backups
             thereof.

      Luxury responded that even though Mr. LeClair discarded the computers, he

had “made copies of the files on the discarded computers, and those files are available

for inspection on the hard drives in Mr. LeClair’s possession.” Mr. LeClair had also

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kept one computer (the “Accounting Computer”) and a large Server, which Mr.

LeClair averred were available for inspection by GEA.

      On 12 June 2017, the trial court entered an order (the “12 June Order”)

regarding GEA’s motion to compel2. The 12 June Order provided that

                [Luxury] shall make available for inspection the server, the
                accounting computer, any other computer hardware
                equipment which is the subject of this action, still existing,
                as well as all downloaded and stored contents and data
                from all computers which were destroyed or disposed of by
                [Luxury]. Unless otherwise agreed by the parties, this shall
                occur within twenty (20) days from May 18, 2017.

      The parties met for the inspection on 7 June 2017. According to GEA,

                Based on deposition testimony, [GEA] expected [Luxury] to
                produce for inspection the following computers known to
                remain in existence: (1) [the] Server; (2) . . . the “Accounting
                Computer”; (3) two portable external hard drives created
                by former employees . . . (the “Employee Backups”); (4)
                backups of computers created by Jeremy LeClair (the
                “LeClair Backups”); and (5) a laptop used by Mr. LeClair to
                conduct [Luxury] business (the “LeClair Laptop”).

      Luxury produced for inspection the Accounting Computer, the Employee

Backups, and the Server. However, Luxury did not produce the LeClair Backups or

the LeClair Laptop, and the Server could not be inspected without certain login

credentials. GEA requested the Server’s login credentials, but Mr. LeClair

maintained that he did not know the username or password and that the company’s




      2   The trial court orally rendered the same order on 15 May 2017.

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IT employee could not remember them. GEA has since been unable to access the

Server. Nonetheless, Luxury has repeatedly requested the return of the reportedly

inaccessible server.

      On 23 June 2017, GEA filed a Motion to Show Cause to Avoid Contempt,

claiming that Luxury had refused to comply with the 12 June Order in that Luxury

had (1) failed to provide access to the Server, (2) failed to produce LeClair’s backups,

and (3) failed to produce LeClair’s laptop. In its motion, GEA requested that Luxury

“be sanctioned severely for their reprehensible conduct . . . , [and that] the Court

should enter default as to [GEA’s] conversion claim, permit [GEA] to keep the Server,

and order [Luxury] to pay [GEA’s] reasonable expenses, including attorney’s fees[.]”

      The trial court heard GEA’s motion to show cause on 28 June 2017. The trial

court orally granted GEA’s motion and gave Luxury ten days within which to produce

the Server’s password, Mr. LeClair’s laptop, and any other computers or backups in

Luxury’s possession. The trial court ordered that Luxury be sanctioned if it failed to

make such production by 10 July 2017. On 3 July 2017, Luxury filed a Request for

Approval to File Motion for Reconsideration and a “Time-Sensitive Motion for In

Camera Review” of Mr. LeClair’s laptop.

      By 10 July 2017, Luxury had not provided the Server’s login credentials or Mr.

LeClair’s laptop. Accordingly, the trial court reduced its 28 June bench ruling to

writing (the “10 July Order”). The trial court’s 10 July Order denied Luxury’s request



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for reconsideration and in camera review, found Luxury to be in violation of the 12

June Order, and affirmed the sanctions. Per the 10 July Order, if by noon of that day

Luxury had not complied with the production requirements, “as a sanction for their

noncompliance[,]” the trial court ordered that “all of [Luxury’s] defenses in this action

be stricken and that judgment by default enter in [GEA’s] favor and against [Luxury]

as to all of [GEA’s] claims, with only the issues of injunctive relief and damages

remaining for further hearing and/or trial.”

      Luxury filed a Notice of Inability to Comply with Court’s Order on 11 July

2017. Luxury insisted that it was unable to comply with the 10 July Order because it

did not have the login credentials to the Server. Luxury also maintained that it could

not produce Mr. LeClair’s personal laptop because of privacy concerns and the trial

court’s refusal to conduct an in camera review. Luxury filed a notice of appeal on 11

July 2017, and a motion to stay the 10 July Order on 13 July 2017. This Court granted

a stay on 14 July 2017.

      On appeal, Luxury argues that the trial court committed a variety of errors in

its 10 July Order, including that it abused its discretion (1) by failing to consider less

drastic sanctions than striking all of Luxury’s defenses and entering default; (2) by

failing to impose less drastic sanctions; (3) by ordering Luxury to produce the Server

password, an impossibility; (4) by finding that Luxury violated the 12 June Order; (5)

by ordering production of Mr. LeClair’s personal laptop in violation of his right to



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privacy; (6) by denying the “Time-Sensitive Motion for In Camera Review”; (7) by

making an erroneous finding as to Mr. LeClair’s credibility and by making a finding

as to his credibility in the first instance; and (8) by denying Luxury’s Request for

Approval to File Motion for Reconsideration. We consider each of Luxury’s arguments

as relevant to the discussion below.

                                        Discussion

I. Grounds for Appellate Review

      The trial court’s 10 July Order that imposed sanctions against Luxury is

interlocutory. Vick v. Davis, 77 N.C. App. 359, 360, 335 S.E.2d 197, 198 (1985).

However, the sanctions struck all defenses and entered default against Luxury on

each of GEA’s claims. “Orders of this type have been described as affecting a

substantial right.” Essex Group, Inc. v. Express Wire Servs., 157 N.C. App. 360, 362,

578 S.E.2d 705, 707 (2003) (citing Clark v. Penland, 146 N.C. App. 288, 291, 552

S.E.2d 243, 245 (2001)).      Accordingly, the trial court’s order is immediately

appealable. Id.; see also Vick, 77 N.C. App. at 360, 335 S.E.2d at 198 (“[A] party may

appeal from an order imposing sanctions by striking his defense and entering

judgment as to liability.”) (citation omitted); N.C. Gen. Stat. § 1-277(a) (2017); N.C.

Gen. Stat. § 7A-27(b)(3)(a) (2017).

II. Rule 37(b)




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      Rule 37(b) of the North Carolina Rules of Civil Procedure grants trial judges

the authority to impose sanctions on a party for failure to comply with a discovery

order. N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) (2017). Rule 37(b)(2) provides:

             (2) Sanctions by Court in Which Action is Pending—
             If a party . . . fails to obey an order to provide or permit
             discovery, . . . a judge of the court in which the action is
             pending may make such orders in regard to the failure as
             are just, and among others the following:

                    a.     An order that the matters regarding which
                    the order was made or any other designated facts
                    shall be taken to be established for the purposes of
                    the action in accordance with the claim of the party
                    obtaining the order;

                    b.    An order refusing to allow the disobedient
                    party to support or oppose designated claims or
                    defenses, or prohibiting the party from introducing
                    designated matters into evidence;

                    c.    An order striking out pleadings or parts
                    thereof, or staying further proceedings until the
                    order is obeyed, or dismissing the action or
                    proceeding or any part thereof, or rendering a
                    judgment by default against the disobedient party;

                    d.     In lieu of any of the foregoing orders or in
                    addition thereto, an order treating as a contempt of
                    court the failure to obey any orders except an order
                    to submit to a physical or mental examination[.]
                                             ...

N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) (2017).

      It is axiomatic that “[o]ne of the primary purposes of the discovery rules is to

facilitate the disclosure prior to trial of any unprivileged information that is relevant


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and material to the lawsuit” so as to permit the receiving party to adequately prepare

her case. American Tel. & Tel. Co. v. Griffin, 39 N.C. App. 721, 726, 251 S.E.2d 885,

888, disc. review denied, 297 N.C. 304, 254 S.E.2d 921 (1979) (citations omitted). This

necessarily includes “the narrowing and sharpening of the basic issues and facts that

will require trial.” Id. (citations omitted). The objectives of Rule 37(b) focus “ ‘not on

gamesmanship, but on expeditious handling of factual information before trial so that

the critical issues may be presented at trial unencumbered by unnecessary or

specious issues[.]’ ” F.E. Davis Plumbing Co. v. Ingleside West Associates, 37 N.C.

App. 149, 152, 245 S.E.2d 555, 557 (1978) (quoting Willis v. Duke Power Co., 291 N.C.

19, 34, 229 S.E.2d 191, 200 (1976)). “Rule 37 contemplates that these objectives can

be accomplished only if the court has the means and power to compel recalcitrant

parties to abide by the rules of discovery.” F.E. Davis Plumbing Co., 37 N.C. App. at

153, 245 S.E.2d at 557. Accordingly, trial courts are vested with broad discretion in

ordering sanctions under Rule 37(b). American Tel. & Tel. Co., 39 N.C. App. at 727,

251 S.E.2d at 888 (citations omitted).

      Not only is the decision to impose Rule 37(b) sanctions within the sound

discretion of the trial court, but so too is the choice of Rule 37(b) sanctions to impose.

Brooks v. Giesey, 106 N.C. App. 586, 592, 418 S.E.2d 236, 239 (1992) (citing Roane-

Barker v. Southeastern Hospital Supply Corp., 99 N.C. App. 30, 36, 392 S.E.2d 663,

667 (1990), disc. review denied, 328 N.C. 93, 402 S.E.2d 418 (1991)). This Court will



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not overturn a trial court’s imposition of sanctions under Rule 37(b) absent a showing

of abuse of that discretion. Id. “A trial court may be reversed for abuse of discretion

only upon a showing that its ruling was so arbitrary that it could not have been the

result of a reasoned decision.” Hursey v. Homes by Design, Inc., 121 N.C. App. 175,

177, 464 S.E.2d 504, 505 (1995) (citing White v. White, 312 N.C. 770, 777, 324 S.E.2d

829, 833 (1985)).

                                          A.

      First, Luxury argues that the trial court erred because it failed to make

findings of fact and conclusions of law that it considered lesser sanctions than the

striking of defenses and entry of default. We find no error.

      Rule 37 does not limit a trial court’s determination of the appropriateness of

imposing a particular Rule 37(b) sanction. Nevertheless, our courts have held that “if

the trial court chooses to exercise the option of striking a party’s defenses or

counterclaims, it must do so after considering lesser sanctions.” Clawser v. Campbell,

184 N.C. App. 526, 531, 646 S.E.2d 779, 783 (2007) (citing In re Pedestrian Walkway

Failure, 173 N.C. App. 237, 251, 618 S.E.2d 819, 828 (2005) and Goss v. Battle, 111

N.C. App. 173, 176, 432 S.E.2d 156, 159 (1993)). A failure to consider lesser sanctions

may constitute an abuse of discretion. However, formal findings of fact and

conclusions of law stating that the trial court considered lesser sanctions are not

required in order to sustain an order’s validity in every instance. “[T]his Court will



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affirm an order for sanctions where ‘it may be inferred from the record that the trial

court considered all available sanctions’ and ‘the sanctions imposed were appropriate

in light of the party’s actions in the case.’ ” In re Pedestrian Walkway Failure, 173

N.C. App. at 251, 618 S.E.2d at 828 (quoting Hursey, 121 N.C. App. at 179, 464 S.E.2d

at 507) (alteration omitted).

      In the instant case, it can be inferred from the record that the trial court

considered lesser sanctions and that the sanctions imposed were appropriate. In its

Motion to Show Cause to Avoid Contempt, GEA explicitly requested the lesser

sanction of entry of default solely as to GEA’s conversion claim. This was a

conservative request. While the various computers at issue and the information

contained therein were the subject of GEA’s conversion claim, the hardware also

contained information that was highly material to, and necessary for, the prosecution

of GEA’s additional claims. In addition, the actions taken by Luxury’s agents and the

attitude evinced by LeClair, apparently in high dudgeon, make more severe sanctions

suitable and fitting. Accordingly, while GEA requested lesser sanctions, the trial

court clearly considered GEA’s request and nevertheless determined that more severe

sanctions were warranted under the circumstances. We also note that the trial court

gave Luxury the opportunity to avoid the sanctions altogether by complying with the

terms of the 12 June Order within ten days.




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      Moreover, “it is generally the appellant’s duty and responsibility to see that

the record is in proper form and complete and this Court will not presume error by

the trial court when none appears on the record to this Court.” King v. King, 146 N.C.

App. 442, 445-46, 552 S.E.2d 262, 265 (2001) (quotation marks and citation omitted).

Instead, “[w]here the record is silent on a particular point, we presume that the trial

court acted correctly.” Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 488, 586

S.E.2d 791, 795 (2003) (citation omitted).

      Here, Luxury has not provided this Court with a transcript of the hearing.

Thus, not only may it be inferred from the record that the trial court considered lesser

sanctions, but we may also “presume that the trial court acted correctly” where

Luxury has failed to provide a transcript of the hearing. E.g., Clawser, 184 N.C. App.

at 531, 646 S.E.2d at 783 (“An examination of the transcript reveals that the trial

court did not consider any lesser sanctions[.]).

                                             B.

      We next address Luxury’s argument that the trial court erred in its 10 July

Order when it found Luxury and Mr. LeClair in violation of the 12 June Order.

      The 10 July Order found that

             Defendant LeClair has not produced his personal laptop
             computer described in [GEA’s] Motion to Show Cause and
             Defendants LeClair and [Luxury] have not produced all
             backups and other computers and devices, if any, in either
             of their possession, custody or control. Accordingly,
             Defendants LeClair and [Luxury] are found to be in


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             violation of this Court’s June 12, 2017 Order mandating
             that they “shall make available for inspection the server,
             the accounting computer, any other computer hardware
             equipment which is the subject of this action, still existing,
             as well as all downloaded and stored contents and data
             from all computers which were destroyed or disposed of by
             Defendants. Unless otherwise agreed by the parties, this
             shall occur within twenty (20) days from May 18, 2017.”

      Luxury maintains that Mr. LeClair’s personal laptop was not subject to GEA’s

motion to compel or the subsequent 12 June Order. Accordingly, Luxury argues that

the trial court erred when it found Luxury to be in violation of the 12 June Order on

those grounds. Luxury further asserts that the trial court erred when it found Luxury

to be in violation of the 12 June Order because Luxury had produced everything

described in that order. We find no such error.

      Our review of the record suggests that the 12 June Order did in fact mandate

the production of Mr. LeClair’s personal laptop. The 10 May 2017 deposition

testimony reveals that the 12 June Order’s reference to the “equipment which is the

subject of this action” not only meant the “Luxury-owned” computers that were

removed from the office and still in existence, but also the computers that had been

used in relation to Luxury’s operations overall. This included the personal laptops of

various employees, including Mr. LeClair. Moreover, after referencing the

“equipment which is the subject of this action,” the 12 June Order explicitly addressed

the handling and protection of Mr. LeClair’s personal information, thus making it

clear that the order included Mr. LeClair’s laptop. Accordingly, we are not persuaded


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that the failure of the 12 June Order to specifically mention Mr. LeClair’s laptop

relieved Luxury of its production.

      Nevertheless, Luxury unequivocally violated the provisions of the 12 June

Order even assuming, arguendo, that Mr. LeClair’s personal laptop was not subject

to the Order. The trial court ordered that Luxury “shall make available for inspection

the server[.]” Luxury insists that it complied with the order because it “produced the

server.” However, the production of the Server was useless, as its access required

login credentials that Luxury maintained it could not provide. We conclude that

because the 12 June Order required not only that Luxury produce the Server, but

that it make the Server “available for inspection,” the trial court did not abuse its

discretion when it concluded that Luxury violated the 12 June Order.

                                             C.

      Next, Luxury contends that the trial court erred “by failing to impose less

drastic sanctions, all available and all more appropriate, than stricken defenses and

entry of default judgment.” The essence of Luxury’s argument is that the trial court

abused its discretion because it imposed the sanctions without regard to Luxury’s

inability to provide the Server’s login credentials or to Mr. LeClair’s privacy interests

in his personal laptop. These arguments are not persuasive.




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i. The Server

      Luxury first maintains that it “does not have the server password, as it

repeatedly told the trial court, under oath, and demonstrated by its inability—not

refusal—to provide it. The July 10 Order requires the impossible.”

      The trial court made the following finding pertaining to the Server in its 10

July Order:

                1. The Court FINDS, pursuant to Defendant LeClair’s
                deposition testimony and otherwise, that LeClair
                intentionally destroyed or physically disposed of computers
                and materials at issue in this case. On the basis of
                Defendant LeClair’s destruction or physical disposal of
                certain computers and materials, the Court FINDS as not
                credible LeClair’s assertion that he does not possess the
                password(s) and other credentials necessary to access [the
                Server]. Though the parties dispute ownership of the
                Server, the Server shall not be returned to [Luxury] unless
                provided for by further disposition of this Court.

      The trial judge is the sole authority of the weight and credibility that should

be given to the parties’ testimony and evidence. Phelps v. Phelps, 337 N.C. 344, 357,

446 S.E.2d 17, 25 (1994).

                “Issues of witness credibility are to be resolved by the trial
                judge. It is clear beyond the need for multiple citation that
                the trial judge, sitting without a jury, has discretion as
                finder of fact with respect to the weight and credibility that
                attaches to the evidence.” Smithwick v. Frame, 62 N.C.
                App. 387, 392, 303 S.E.2d 217, 221 (1983). “The trial court
                must itself determine what pertinent facts are actually
                established by the evidence before it, and it is not for an
                appellate court to determine de novo the weight and
                credibility to be given to evidence disclosed by the record


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             on appeal.” Coble v. Coble, 300 N.C. 708, 712-13, 268
             S.E.2d 185, 189 (1980).

Id. at 357, 446 S.E.2d at 25.

      Despite Luxury’s insistence, the trial court made clear that it did not find it

credible that neither Mr. LeClair nor any other of Luxury’s agents knew the login

credentials to the Server. The trial court did not abuse its discretion simply because

it declined to accept Luxury’s allegations to the contrary. In that it was the province

of the trial court to determine the credibility of Luxury’s contentions on this point, we

conclude that the trial court did not abuse its discretion when it ordered that Luxury

be sanctioned if it did not provide the Server’s login credentials.

      Notwithstanding the trial court’s discretion as to determinations of credibility,

Luxury further argues that the trial court erred when it made any finding as to

credibility. In support of this argument, Luxury cites Lee v. Shor for the proposition

that “[i]t is well established that the court should not resolve an issue of credibility

or conduct a ‘trial by affidavits’ at a hearing on a motion for summary judgment[.]”

10 N.C. App. 231, 235, 178 S.E.2d 101, 104 (1970). While the present case does not

involve a motion for summary judgment, Luxury “submits that a ruling as to

credibility in a dispositive context—either summary judgment or entry of default—is

error[.]” We are not persuaded.

      Not only has Luxury failed to provide this Court with authority to support the

applicability of Lee to the present case, but we conclude that no such extension is


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                                   Opinion of the Court



warranted under the circumstances. The issue at hand in the 10 July Order was

whether or not to impose sanctions. In ruling on GEA’s motion to show cause, the

trial court was required to determine whether Luxury was truly incapable of

complying with the 12 June Order or whether Luxury personnel had in fact

misrepresented their lack of knowledge of the password to the Server. Therefore,

credibility was not only relevant, but was itself in issue. Moreover, in Lee, we reversed

the trial court’s summary judgment order on the basis of the affidavits provided

because “[a] careful examination of defendants’ affidavits disclose[d] that . . . they do

not cover all of the facts which would be material to a determination of the

controversy and thus would not adequately support the motion.” Id. at 236, 178

S.E.2d at 104. Here, however, Luxury personnel simply insisted that they did not

know the Server’s password. There was nothing further for the trial court to resolve

other than whether that assertion was believable.

       Accordingly, we find no error in the trial court’s finding as to Mr. LeClair’s

credibility.

ii. LeClair Laptop

       Additionally, Luxury argues that the trial court erred when it ordered

sanctions against Luxury if it did not produce Mr. LeClair’s personal laptop. Luxury

maintains that this requirement is “a violation of Mr. LeClair’s right of privacy,” and




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                                   Opinion of the Court



that such a violation could have been easily avoided by an in camera review of the

laptop, which the trial court refused to conduct.

       Despite the personal nature of certain information, “[u]nder the rules of

discovery . . . , a party may obtain discovery concerning any unprivileged matter as

long as it is relevant to the pending action and is reasonably calculated to lead to the

discovery of admissible evidence.” Spangler v. Olchowski, 187 N.C. App. 684, 693,

654 S.E.2d 507, 514 (2007) (citation omitted). Whether to conduct an in camera

inspection is within the trial court’s discretion. Midgett v. Crystal Dawn Corp., 58

N.C. App. 734, 736, 294 S.E.2d 386, 387 (1982) (citations omitted).

      In the instant case, while Mr. LeClair’s personal laptop may indeed include, as

Luxury calls it, “needless” personal information, we find sufficient evidence in the

record to suggest that Mr. LeClair’s personal laptop also contained information

related to GEA’s pending claims and would lead to the discovery of admissible

evidence.

      The relevant information that could have been found on Mr. LeClair’s laptop

was not limited to Luxury’s or GEA’s business matters. For instance, GEA’s

harassment claim contained allegations concerning Mr. LeClair’s personal Facebook

postings and defamatory e-mails sent to the Times and The Wall Street Journal. Thus

we are not persuaded by Luxury’s claim that any personal information on the laptop

would have been entirely irrelevant to GEA’s pending actions. In any event, the



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                                   Opinion of the Court



possibility of unveiling “purely personal” information would have been outweighed by

the potential for uncovering material that was relevant. Mr. LeClair testified that he

used his personal laptop for Luxury’s business matters. Additionally, largely at issue

in GEA’s claims—including its accounting claim—was the housing of stolen

intellectual property. There is no indication that the housing of any such stolen

property would be limited solely to the business computers.

      Furthermore, the extent of any harm caused by the revelation of personal

information would have been circumscribed by the trial court’s 12 June Order, which

explicitly set the bounds for the use of Mr. LeClair’s personal information. That order

stated, in pertinent part, that

             [a]ny information, content or data obtained from the
             inspection [that] is Jeremy LeClair’s personal information
             . . . shall be used solely for purposes of this case . . . and
             disclosed only (a) to the parties, their counsel, their experts
             or trial witnesses, (b) at trial as necessary, or (c) in
             response to any statute or court/governmental order. The
             [personal] [i]nformation will be returned to Jeremy LeClair
             within fourteen (14) days of final disposition . . . and not
             retained by the Plaintiffs.

(emphasis added).

      This Court is also concerned by the attitude exhibited by Mr. LeClair. At his

deposition, Mr. LeClair repeatedly stated that he would refuse to produce his

personal laptop, and continued to so refuse even after the court ordered him to do so

in its 10 July Order, thus showing his contempt for the discovery process overall.



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                                    Opinion of the Court



      Accordingly, we conclude that the trial court did not abuse its discretion when

it ordered that Luxury be sanctioned unless Mr. LeClair produced his personal laptop

for inspection.

      We are also not convinced that the trial court abused its discretion when it

declined to conduct an in camera review of the laptop. On 3 July 2017, Luxury filed a

“Time-Sensitive Motion For In Camera Review And Request For Telephone Hearing.”

The motion requested that the in camera review be conducted prior to 10 July 2017,

which was just seven days later. Luxury in essence asked the trial judge to clear his

schedule and sort through the laptop’s extensive supply of files in order to determine

which information was and was not relevant to the pending claims. The trial court

did not abuse its discretion when it refused to do so, particularly given the expedited

nature of the request and the privacy protections that the trial court afforded to Mr.

LeClair in its 12 June Order. Luxury’s motion for in camera review should have been

filed shortly after the initial discovery request, on 1 March 2017, or at the latest, after

the 12 June order, rather than on 3 July 2017, after the 23 June 2017 motion to show

cause was filed by GEA.

      Accordingly, we conclude that the trial court did not err when it ordered the

production of Mr. LeClair’s personal laptop and denied Luxury’s motion for a time-

sensitive in camera review.

                                               ***



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                                   Opinion of the Court



      In view of the above, we conclude that the trial court did not err when it struck

Luxury’s defenses to GEA’s counterclaims, entered default against Luxury, and

denied Luxury’s Request for Reconsideration. As discussed in Section II supra, a

determination of the appropriateness of particular sanctions is within the sound

discretion of the trial judge. “Striking of defenses or counterclaims is an appropriate

remedy, and is within the province of the trial court.” Clawser, 184 N.C. App. at 531,

646 S.E.2d at 783 (citing Jones v. GMRI, Inc., 144 N.C. App. 558, 565, 551 S.E.2d 867,

872 (2001)). Such sanctions “are well within the court’s discretion in cases involving

an abuse of discovery rules by one party.” Kewaunee Sci. Corp. v. Eastern Sci. Prods.,

122 N.C. App. 734, 738, 471 S.E.2d 451, 453 (1996) (citing Roane-Barker, 99 N.C.

App. at 36, 392 S.E.2d at 667). In the instant case, we find no such abuse of discretion.



                                         Conclusion

      For the reasons contained herein, the trial court’s 10 July 2017 order is

      AFFIRMED.

      Judges HUNTER, JR. and DIETZ concur.




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