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Engility Corp v. Nell

Court of Appeals of North Carolina

March 20, 2018

ENGILITY CORPORATION, Plaintiff,
v.
PAUL NELL, et al., Defendants.

          Heard in the Court of Appeals 20 February 2018.

         Appeal by defendants from orders entered 20 February 2017 and 3 April 2017 by Judge Orlando F. Hudson, Jr. in Durham County, No. 17 CVS 1647 Superior Court.

          Whiteford, Taylor & Preston LLP, by C. Allen Foster and Eric C. Rowe, for plaintiff-appellee.

          Vann Attorneys, PLLC, by Joseph A. Davies, and Marino Finley LLP, by Daniel Marino, Tillman J. Finley and Kathrynn Benson, pro hac vice, for defendant-appellants.

          TYSON, Judge.

         Paul Nell, Torch Hill Investment Partners, LLC, The Allies Corporation, and Andrew Blair ("Defendants") appeal from an order granting Engility Corporation's ("Plaintiff") motion to quash and for protective order. Defendants also appeal from an order denying their Rule 60 motion for relief. We dismiss the appeal pertaining to the order granting Plaintiff's motion to quash as untimely and interlocutory. The trial court's order denying Defendants' motion for relief is affirmed.

          I. Background

         A. Subpoena

         Plaintiff filed suit against Defendants in Fairfax County, Virginia (the "Virginia Case"). Some of the allegations arose from the Plaintiff's attempted sale of International Resource Group ("IRG"), a subsidiary of its international business. In early January 2017, Research Triangle Institute, Inc. ("RTI") purchased IRG.

         On 11 January 2017, Defendants requested the Durham County superior court to issue a subpoena to RTI pursuant to the Uniform Depositions and Discovery Act. N.C. Gen. Stat. § 1F-3 (2017). This request was based upon a previously issued Virginia subpoena and sought to obtain documents related to the pending Virginia Case.

         Plaintiff objected to the request for third-party discovery and filed a motion to quash the Virginia subpoena to RTI in Fairfax County, on 9 February 2017. Plaintiff and RTI requested Defendants allow them to postpone the production of documents until after the motion concerning the Virginia subpoena was resolved. Defendants refused.

         On 14 February 2017, RTI sent Defendants a letter of objection to the subpoena, and again requested to delay production, pending the outcome of the hearing in Virginia. That same day, Plaintiff filed a motion to quash and for protective order in Durham County, arguing

the information requested from RTI [was] repetitive of discovery requests already made to Plaintiff, is in the process of being provided by Plaintiff to Defendants, serves no purpose other than to unduly burden RTI and is the subject of a pending motion to quash in the Circuit Court of Fairfax County, VA, the venue of the related action.

         This motion was served upon Defendants by first class and electronic mail on 14 February 2017. Defendants deny ever receiving the motion via first class mail. No hearing was held on Plaintiff's motion. The superior court granted Plaintiff's motion to quash the subpoena and allowed monetary sanctions on Defendants in an order dated 20 February 2017 (the "February order"). In an order dated 3 March 2017, the Fairfax County circuit court denied Plaintiff's motion to quash the Virginia ...


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