by Plaintiffs from Order entered 17 February 2018 by Judge
Walter H. Godwin, Jr. in Nash County Superior Court No. 17
CVS 1405. Heard in the Court of Appeals 30 January 2019.
Robbins Yates & Ponton LLP, by Paul J. Puryear, Jr., and
Bordas & Bordas, PLLC, by J. Zachary Zatezalo, for
Spruill LLP, by J. Nicholas Ellis and Dylan J. Castellino,
for nonparty-appellee Daniel G. Kirkpatrick.
trial court abused its discretion by granting a motion to
quash a subpoena under Rule 45(c)(3)(b) of the North Carolina
Rules of Civil Procedure when it failed to review an outside
contract that allegedly protected the information sought
under the subpoena and granted the motion solely on the basis
of the moving party's assertion that the contract
protected the information. We reverse and remand for further
Cortney Taylor and Calista Burton Taylor ("the
Taylors"), brought several claims in a medical
malpractice action in West Virginia against numerous
Defendants, including BestPractices, Inc.
("BestPractices"). BestPractices provided
"emergency and hospitalist staffing and management
solutions to hospitals and healthcare institutions."
When the events underlying the Taylors' medical
malpractice action occurred, Daniel G. Kirkpatrick
("Kirkpatrick") was then employed in a corporate
position by BestPractices, and subsequently EmCare, Inc.
("EmCare") following its acquisition of
BestPractices. In his role as Vice-President of Operations,
Kirkpatrick "worked with the financial team with
emphasis on business and financial aspects of the
was not a party to the civil action against Best Practices
and other Defendants; however, on 21 September 2017, the Nash
County Superior Courtissued a subpoena ordering Kirkpatrick to
appear and testify at a deposition and produce various
documents related to his employment with Best Practices and,
later, EmCare. Kirkpatrick's deposition was scheduled to
take place on 16 October 2017. That morning, Kirkpatrick
filed a Motion to Quash Subpoena in Nash County
Superior Court. Kirkpatrick claimed that, when he ended his
employment with EmCare in 2013, he signed a separation
agreement that "precluded him from disclosing non-public
information acquired by virtue of his employment." As
such, Kirkpatrick argued the subpoena should be quashed under
Rule 45(c)(3)(b) of the North Carolina Rules of Civil
Procedure, as it required disclosure of privileged or other
protected matter and that no exception or waiver applied to
the privilege or protection.
sole document attached in support of Kirkpatrick's motion
to quash was his own affidavit, attempting to serve as parol
evidence of the alleged agreement. It stated, in relevant
15.At the time of execution, it was my understanding and
expectation that the Separation Agreement precluded me from
disclosing any and all information that I acquired by virtue
of my employment with BestPractices or EmCare which was not
otherwise available to third parties.
16.At the time of execution of my Separation Agreement, it
was my understanding and expectation that the contents of the
document itself were confidential.
17.At the time of execution, it was my understanding and
expectation that the obligation to maintain confidentiality
of proprietary information and the contents of the Separation
Agreement survived the general term of the Separation
Agreement and the termination of my employment with EmCare.
trial court held a hearing on the motion to quash on 2
January 2018. Kirkpatrick's counsel informed the trial
court that he had a copy of the separation agreement should
the trial court wish to review the agreement and its
non-disclosure terms in camera. However, the trial
court did not review the separation agreement and later
issued its order on 23 ...