The North Carolina Court of Appeals decision in Hammond v. Saini arises from a horrific set of facts.  Plaintiff underwent a surgical procedure to remove a potentially cancerous growth from her face.  During the procedure, a cauterizing tool being used by the surgeon ignited oxygen trapped around the plaintiff’s face, resulting in severe burns and injuries to plaintiff.  Plaintiff sued various defendants, and served discovery requests on them. Defendants objected that the information and documents sought by plaintiff’s discovery requests were protected from disclosure 1) based on medical review privilege, the work-product doctrine, and attorney-client privilege (issues which all affect a substantial right) and 2) because plaintiff’s discovery requests were overbroad (an issue that generally does not affect a substantial right).  The trial court compelled defendants to respond to the discovery requests, and defendants filed an interlocutory appeal challenging the trial court’s discovery order.

The Court of Appeals’ opinion addressed several recurring appellate issues that I would like to touch on today.

1)         When a party asserts that it is being compelled to disclose information protected by a recognized privilege or immunity, the Court of Appeals will usually find that the order affects a substantial right.  Privilege/immunity arguments are long-recognized exceptions to the general rule that discovery orders are not usually immediately appealable.

2)         No Pendent Appellate Jurisdiction – Defendants also sought review of their argument that the discovery requests were too broad.  This issue, standing alone, did not affect a substantial right, but since the Court of Appeals was already analyzing these discovery requests for privilege/immunity protection, the defendants asked the Court to review all discovery issues now.

The Court declined to do so, holding that it only had jurisdiction to review the privilege/immunity issues that affected a substantial right.  We have blogged on this issue before (here and here), and the Court of Appeals continues to conduct a narrow review of interlocutory orders to only decide the issues that affect a substantial right.  While it might be more convenient for the parties if the Court would hear all issues at once, the Court is not inclined to allow bootstrapping of issues that do not independently satisfy the substantial right test.

Practical point: The opinion does not state if the defendants petitioned for certiorari review of the overbreadth issue.  If you have an interlocutory order that involves both a substantial right issue and an issue that, standing alone, is not subject to interlocutory review, petitioning for certiorari on this additional issue is the proper way to ask the Court of Appeals to review this additional issue. Petitioning for certiorari does not mean that the judges will review your additional issues.  However, under the right circumstances, you may be able to make a compelling case for why the non-substantial right issue should be reviewed now, rather than waiting for a final judgment.

3)         Waiver of arguments not raised in the Court of Appeals.  Although defendants’ discovery objections contended that information was also protected by the attorney-client privilege, the Court of Appeals held that this argument was waived because defendants made no specific argument in their appellate brief regarding this issue.  Therefore, be mindful that “passing references” in a brief do not constitute a “specific argument” sufficient to preserve an issue for appeal.

4)         Including trial court briefs and hearing transcripts in the appellate record.  In finding a waiver, the Hammond court also noted that it had reviewed the hearing transcript and found no mention of attorney-client privilege. The opinion does not note whether the defendants advanced the attorney-client privilege argument in any trial briefs, but if they had, this portion of the Court of Appeals’ waiver analysis may have been different.

Counsel will sometime object to including trial court briefs in the appellate record.  Objections often stem from the mistaken belief that the North Carolina Rules of Appellate Procedure prohibit the inclusion of trial court briefs in the appellate record.  This provision of the North Carolina Rules of Appellate Procedure was deleted many, many years ago.  As this case illustrates, it is sometimes critical to prove to the appellate court that an argument was (or was not) preserved in the trial court.  As an appellant, if your opponent contends that an argument was not made in the trial court, you can use your trial court briefs or transcript to demonstrate otherwise. As an appellee, you can use trial court briefs and transcripts to prevent your opponent from expanding their arguments on appeal or taking a position that is inconsistent with representations or concessions made in the trial court.  Therefore, the next time you are settling an appellate record, remember that trial court briefs are an important tool in your appellate arsenal, to be used when necessary.  Even if your opponent objects to including these documents in the printed record on appeal or Rule 9(d) documentary exhibits, you have the right to include them in the Rule 11(c) record supplement.

–Beth Scherer