The Rules of Appellate Procedure can’t cover everything. There is no rule, per se, forbidding a party from delving into a teenager’s sex life in a deposition and in an appellate brief in a negligent hiring case. But as of last week, there’s now a case that states as much.
In Nowlin v. Moravian Church, the North Carolina Court of Appeals was asked to determine whether the Defendants were negligent in hiring a particular summer camp counselor and then failing to supervise a late-night game in the woods during which Plaintiff alleged she was sexually assaulted by that counselor. In the course of deposing Plaintiff, Defendants asked Plaintiff a number of quite graphic questions about her subsequent, consensual sexual history with people other than the counselor in the years that followed the incident. Defendants then included some of that information in their appellate brief and appendix.
Even though the Court of Appeals ruled for Defendants in finding no issue of material fact that could lead to Defendants being liable, the Court made a point of chastising counsel for its conduct during the deposition and for including such information in the brief:
In view of the potential harm to individuals in [Plaintiff’s] position from the inclusion of this sort of information in filings before this Court and the fact that such information is of no value to the Court for purposes of appellate review of an order such as this one, we encourage the Bar in this State to consider carefully whether such information is really relevant to the issues being litigated on appeal before including such information in their filings with this Court.
Undoubtedly, there will be cases, such as criminal cases involving sexual assaults, where it is not possible to avoid sensitive topics. But the bottom line is: if you are considering writing something salacious in your appellate brief, you should weigh its prurience against its relevance before sending it off to the Court.