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Taylor v. Perni

Court of Appeals of North Carolina

May 21, 2019

CORTNEY TAYLOR and CALISTA KAJ BURTON TAYLOR, Plaintiffs,
v.
MARK PERNI, D.O.; JENNIFER ANGELILLI; BESTPRACTICES OF WEST VIRGINIA, INC.; and BESTPRACTICES, INC., Defendants.

          Appeal 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.

          Wyrick Robbins Yates & Ponton LLP, by Paul J. Puryear, Jr., and Bordas & Bordas, PLLC, by J. Zachary Zatezalo, for plaintiffs-appellants.

          Poyner Spruill LLP, by J. Nicholas Ellis and Dylan J. Castellino, for nonparty-appellee Daniel G. Kirkpatrick.

          MURPHY, JUDGE.

         The 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 proceedings.

         BACKGROUND

         Plaintiffs, 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 company's operations."

         Kirkpatrick was not a party to the civil action against Best Practices and other Defendants; however, on 21 September 2017, the Nash County Superior Court[1]issued 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.

         The 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 part:

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.

         The 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 ...


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