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Nationwide Mutual Fire Insurance Co. v. Bourlon8/16/2005
ef, " he disclosures at issue here have absolutely nothing to do with the issues remaining in the lawsuit and clearly are not necessary to the defense of Patterson's conduct even if it were at issue."
At bar, defendant: (1) made no allegations regarding any misconduct by Patterson; (2) has not asserted any claims against Patterson; and (3) made no adverse allegations against Patterson or even mentioned his name in the counterclaims. During the hearing, defense counsel conceded that the statute of limitations for defendant to assert claims against Patterson had expired. Defendant's counterclaim asserts failure to settle and breach of duty only on the part of plaintiff.
While some communications defendant made to Patterson may be discoverable and disclosed, defendant has not waived his right to assert the privilege until he asserts claims against Patterson's estate. Even then, defendant would not waive his privilege to all their communications. See State v. Buckner, 351 N.C. 401, 407, 527 S.E.2d 307, 311 (2000) (Holding the defendant, by asserting a claim for ineffective assistance of counsel, waived his right to the attorney-client privilege only as to matters relating to the allegations.).
Being bound by the trial court's unchallenged findings of fact and the record before us, plaintiff has failed to show and I would hold the trial court did not abuse its discretion in finding and concluding the existence of the attorney-client privilege. I would also hold that such privilege protects communications between defendant and Patterson during his representation of defendant in the underlying action and defendant did not waive his privilege. I vote to overrule this assignment of error.
III. Possession of Patterson's File by Plaintiff
Plaintiff argues the trial court erred in ordering Patterson's file and all copies of the documents contained therein to be sealed pending further orders. In his cross assignments of error numbers three and four, defendant asserts the trial court erred by not finding: (1) it was inappropriate for Patterson or his counsel to make the file or any of its contents known to plaintiff, concluding that it was not appropriate for Patterson to turn over his file to defendant; and (2) plaintiff's attorney had a conflict of interest in representing Patterson, while at the same time representing plaintiff.
During the trial court's oral rendition of its judgment, it ordered, "[plaintiff's counsel] seal [the file] and provide it to the Court to be kept in the Court file sealed, and unsealed only by order at the appropriate time." Plaintiff's counsel responded, "I can just keep them in my office and not make them available." The trial court agreed to counsel's offer and stated, "I just want an affidavit from you sworn under oath that those matters are sealed and are available in your office. You can even put that in an envelope and seal it."
Defense counsel requested, "with respect to the sealed documents in [plaintiff's counsel's] office, there may be portions of that file that were communicated to the client, that need to be somehow retrieved from the client, his client, plaintiff." Plaintiff's counsel responded, "I'd ask that we let that abide until such time as this appeal's decided." The trial court responded, "You're going to have to call plaintiff and tell them what happened here. When you call them, would you please ask them to kindly . . . put it under seal until the appeal, somewhere."
Subsequently in its written order, the trial court stated in decreetal paragraph number three, "Defendant's counsel is directed to maintain his copy of Lee A. Patterson's file from the Civil Action under seal i
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 North Carolina Personal Injury Attorneys
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