Appeal and Error_appealability_order compelling discovery_interlocutory
An appeal from a discovery order was dismissed as interlocutory where the order
concerned a privileged communication between defendant and his attorney (handwritten
interrogatory responses used in drafting a formal response), but defendant waived the privilege
by testifying about the handwritten answers in his deposition. No substantial right was affected.
Knox, Brotherton, Knox & Godfrey, by H. Edward Knox, Lisa G.
Godfrey, and Frances S. Knox, for plaintiff-appellees.
Davis & Hamrick, L.L.P., by H. Lee Davis, Jr. and Ann C. Rowe,
for defendant-appellants.
HUNTER, Judge.
Thomas Fincher (“defendant Fincher”) and Arrow Trucking
Company (“defendant Arrow”) (collectively “defendants”) appeal the
trial court's discovery order compelling the production of certain
handwritten interrogatory responses. Defendants have failed to
demonstrate that a substantial right will be affected should they
not be given the immediate right to appeal. Therefore, we dismiss
defendants' appeal as interlocutory.
On 21 May 2001, defendant Fincher was driving one of defendant
Arrow's tractor-trailers when he pulled out from a service station
and collided with a vehicle driven by Imogene Eckliff (“Eckliff”). As a result of the collision, Eckliff suffered severe injuries and
was ultimately adjudicated incompetent. Thereafter, William F.
Hulse, a guardian ad litem acting on behalf of Eckliff and her
husband, Timothy Eckliff (collectively “plaintiffs”), filed a
negligence action against defendants on 14 June 2001. Defendants
answered denying negligence and, alternatively, alleged Eckliff's
contributory negligence as a defense.
Plaintiffs began discovery by serving “Plaintiff's First Set
of Interrogatories and Request for Production of Documents” on
defendants. On 14 November 2001, defense counsel served on
plaintiffs' counsel a document entitled “Defendant, Thomas Ray
Fincher's, Answers to Plaintiffs' First Set of Interrogatories and
Request for Production of Documents.” The document contained
defendant Fincher's typed interrogatory responses, two of which
were as follows:
31. When you first saw the Plaintiff's
vehicle, state the location of all vehicles
involved in the occurrence with relation to
the location of the accident, the distance
between your vehicle and the Plaintiff's
vehicle, and the speed of each vehicle.
ANSWER: The investigating officer estimated
the original speed of travel for the Defendant
as 0 mph. The investigating officer estimated
the original speed of travel for the Plaintiff
as 50 mph. The estimated speed at impact for
the Defendant was 10 mph. The estimated speed
at impact for the Plaintiff was 40 mph. My
truck was in the inside eastbound lane of
travel. The Plaintiff's car was on the other
side of [the] trailer.
32. Please describe, with as much
specificity as possible, how you contend the
collision occurred. Include in your answer
the speed, direction and location of each
vehicle involved in the occurrence and what
actions you took to avoid the occurrence.
ANSWER: Objection. The Defendant objects to
this Interrogatory as vague, overly broad,
unduly burdensome and not calculated to lead
to the discovery of admissible or relevant
evidence. Without waiving such objection, the
Defendant states that he was traveling at 10-
15 mph in a straight line. Upon information
and belief the Plaintiff was traveling at an
unsafe speed, without keeping a proper lookout
and without keeping her vehicle under control
and collided with my trailer.
Subsequently, defendant Fincher signed a verification stating that
he had sworn, under oath:
That he is a Defendant in the . . .
action; that he has read the foregoing
[Interrogatories and responses] and knows the
contents thereof, that the same are true of
his own knowledge except those matters therein
stated upon information and belief, and as to
those he believes them to be true.
The verification was sent by defense counsel several days after the
responses on 20 November 2001 to be attached to the typed
interrogatory responses.
During a deposition held on 24 July 2002, defendant Fincher
was asked about his interrogatory responses. Defendant Fincher
testified that defense counsel had sent the interrogatories to him
in Texas, where he is a citizen and resident. In turn, he hand-
wrote responses to the interrogatories and sent them back to
defense counsel by facsimile. Defendant Fincher did not receive
back from his counsel any typed version of his responses, but he
did receive a typed verification which he signed in the presence of
a notary and sent back to defense counsel based on his handwritten
responses. Defendant Fincher revealed that he had not seen the
typed interrogatory responses until the night before his
deposition. Also, defendant Fincher was asked specifically about the typed
response to Interrogatory Number 31 regarding the investigating
officer's estimate of the Eckliff vehicle's original speed of
travel as fifty miles per hour. Defendant Fincher testified that
the response was “not [his] answer” because (1) he never told the
officer what he believed the speed of the Eckliff vehicle to be
prior to the collision, and (2) he had handwritten that the
vehicle's speed was “[f]ifty-five plus.” “That was wrote on my
Interrogatories that I faxed back[]” to defense counsel.
Thereafter, the parties learned that a paralegal for defense
counsel had incorrectly recorded defendant's handwritten response
to Interrogatory Number 31 on the typed version of discovery.
Following the deposition, plaintiffs formally requested
defendant Fincher's handwritten interrogatory responses as a part
of “Plaintiff's Second Request for Production of Documents.”
Defendants responded and objected to plaintiffs' request in that it
sought “information protected by the attorney-client privilege and
the attorney work product doctrine and [sought] documents which
were prepared in anticipation of litigation.” Plaintiffs, in turn,
filed a motion to compel defendants to provide them with the
handwritten responses.
The motion to compel was heard over the course of three trial
court appearances on 14, 24, and 30 October 2002. After conducting
an in camera review, the trial court ordered that the handwritten
responses to Interrogatories Number 31 and Number 32 be provided
directly to counsel for plaintiffs for the following reasons:
(2) Defendant Thomas Ray Fincher waived his
right to claim the attorney-clientprivilege with respect to his handwritten
responses to Interrogatories Nos. 31 and
32 when he testified in his deposition
that the typewritten responses to which
his verification was attached had, in
fact, never been reviewed by him and did
not reflect his handwritten responses to
Interrogatories Nos. 31 and 32.
(3) Because of Thomas Ray Fincher's testimony
in his deposition that his verified
discovery responses did not reflect his
true answers, the Plaintiffs do have a
“substantial need” for the handwritten
document, and there is no alternative
means for the Plaintiffs to obtain this
document other than from the Defendants.
Defendants appeal.
Plaintiffs have filed a motion to dismiss defendants' appeal
of the discovery order as interlocutory and not affecting a
substantial right. Generally, “there is no right to appeal from an
interlocutory order[,]” and “appellate courts do not review
discovery orders because of their interlocutory nature.” Stevenson
v. Joyner, 148 N.C. App. 261, 262-63, 558 S.E.2d 215, 217 (2002).
However, an interlocutory order may be immediately appealed where
delaying the appeal will irreparably impair a substantial right of
the party. See Moose v. Nissan of Statesville, 115 N.C. App. 423,
444 S.E.2d 694 (1994). Here, defendants argue the trial court's
discovery order is immediately appealable because defendant
Fincher's handwritten interrogatory responses are protected by the
attorney-client privilege. Plaintiffs argue defendants failed to
prove an attorney-client privilege existed as to those responses
and, assuming they did, any right to claim the privilege was waivedwhen defendant Fincher testified under oath regarding the contents
of the responses. We agree with plaintiffs.
(See footnote 1)
“It is well settled that communications between an attorney
and a client are privileged under proper circumstances.” State v.
Bronson, 333 N.C. 67, 76, 423 S.E.2d 772, 777 (1992) (citation
omitted). “Although an attorney may assert the privilege when
necessary to protect the interests of the client, the privilege
belongs solely to the client.” In re Miller, ___ N.C. ___, ___,
584 S.E.2d 772, 788 (2003). The client/claimant of the attorney-
client privilege bears the burden of establishing that the
privilege exists. Evans v. United Servs. Auto. Ass'n, 142 N.C.
App. 18, 32, 541 S.E.2d 782, 791, cert. denied and disc. review
dismissed as moot, 353 N.C. 371, 547 S.E.2d 809 (2001). Such a
burden can be met by establishing:
(1) the relation of attorney and client
existed at the time the communication was
made, (2) the communication was made in
confidence, (3) the communication relates to a
matter about which the attorney is being
professionally consulted, (4) the
communication was made in the course of giving
or seeking legal advice for a proper purpose,
although litigation need not be contemplated,
and (5) the client has not waived the
privilege.
Id. (citations omitted).
At the time plaintiffs' interrogatories were served on
defendants in the case sub judice, an attorney-client relationshipalready existed between defendant Fincher and defense counsel.
Defendant Fincher confidentially consulted defense counsel
regarding the interrogatories, which related to events surrounding
his collision with Eckliff. Since defendant Fincher is a resident
and citizen of Texas, defense counsel obtained defendant Fincher's
handwritten responses to the interrogatories by facsimile. Those
handwritten responses were used in the course of preparing formal
responses to plaintiffs' interrogatories. However, while the
evidence strongly indicates that defendants met the burden of
establishing that the first four elements necessary to prove an
attorney-client privilege existed, defendant Fincher clearly waived
that privilege with respect to the two handwritten responses in
question.
In State v. Tate, 294 N.C. 189, 239 S.E.2d 821 (1978), our
Supreme Court held that the attorney-client privilege which
preserves the confidentiality of a normally privileged written
communication is deemed to be waived if the holder of that
privilege testifies concerning the written communication thereby
putting it into evidence before the jury. The Court reasoned that
the written communication itself “is the best evidence of what it
does and does not contain.” Id. at 194, 239 S.E.2d at 825
(emphasis added and omitted). During his deposition, plaintiffs'
counsel questioned defendant Fincher about the typed response to
Interrogatory Number 31, to which defendant Fincher testified:
“That [wa]s not my answer. . . . I wrote that the speed of the
vehicle was traveling above the speed limit [fifty-five plus].”
That testimony alone, offered by the client/claimant of theprivilege, put the contents of the interrogatory responses into
evidence by identifying obvious differences between the handwritten
and typed responses. The trial court's subsequent decision to
compel discovery of defendant Fincher's handwritten responses only
as to Interrogatories Number 31 and Number 32 (after reviewing all
the handwritten responses in camera), provides the best evidence of
defendant Fincher's intended responses to those interrogatories.
Thus, while the evidence indicates that defendant Fincher's
handwritten responses were privileged, his waiver of that privilege
resulted in those interrogatory responses being discoverable.
Accordingly, plaintiffs' “Motion to Dismiss Appeal as
Interlocutory and Not Affecting a Substantial Right” is granted.
Appeal dismissed.
Judges McGEE and CALABRIA concur.
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