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Nationwide Mutual Fire Insurance Co. v. Bourlon8/16/2005
rivilege with respect to those communications relevant to his counterclaims although unrelated to the underlying action and involving issues of coverage. Therefore, we hold that plaintiff is entitled to discovery regarding those matters, and, accordingly, we affirm the trial court's order in part and reverse it in part.
Affirmed in part; reversed in part.
Judge GEER concurs.
Judge TYSON concurs in part and dissents in part.
TYSON, Judge concurring in part, dissenting in part.
I concur with the majority's opinion that: (1) the trial court did not err by ruling Patterson breached his attorney-client relationship with defendant by providing plaintiff with the entire file from the underlying action; and (2) the trial court's decision to deny plaintiff's motion for sanctions should be affirmed.
Under the facts and posture of the appeal before us, I respectfully dissent from the majority opinion's holding that: (1) an attorney-client relationship existed between plaintiff and Patterson; (2) the attorney-client relationship between defendant and Patterson is inapplicable to those communications related to the underlying action; and (3) defendant waived the attorney-client privilege.
I. Standard of Review
This Court has previously stated, it "is well established that orders regarding discovery matters are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of that discretion." Evans v. United Servs. Auto. Ass'n, 142N.C. App. 18, 27, 541 S.E.2d 782, 788 (citations omitted), cert. denied and appeal dismissed, 353 N.C. 371, 547 S.E.2d 810 (2001). As stated in Evans, we "examine the trial court's application of . . . the attorney-client privilege under an abuse of discretion standard." 142 N.C. App. at 27, 541 S.E.2d at 788. To show an abuse of discretion and reverse the trial court's order, Nationwide, as appellant, has the burden to show the trial court's rulings are "manifestly unsupported by reason," Clark v. Penland, 146 N.C. App. 288, 291, 552 S.E.2d 243, 245 (2001) (quotation omitted), or "could not be the product of a reasoned decision," Chavis v. Thetford Prop. Mgmt. Inc., 155 N.C. App. 769, 771, 573 S.E.2d 920, 921 (2003) (citing Long v. Harris, 137 N.C. App. 461, 464-65, 528 S.E.2d 633, 635 (2000)). We all agree our review at bar is not de novo. The appellate court is not allowed to substitute our judgment for that of the trial court on the grounds we may have arrived at a different conclusion and result based on the evidence presented and findings of fact. Id.
II. Attorney-Client Privilege
Plaintiff argues the trial court erred by concluding no attorney-client privilege existed between plaintiff and Patterson. Under: (1) our standard of review; (2) the specific facts here; and (3) the procedural posture of this appeal, at this time, I disagree.
Our Supreme Court recently addressed the importance of the attorney-client relationship and its attendant privileges.
The public's interest in protecting the attorney-client privilege is no trivial consideration, as this protection for confidential communications is one of the oldest and most revered in law. The privilege has its foundation in the common law and can be traced back to the sixteenth century. The attorney-client privilege is well-grounded in the jurisprudence of this State. When the relationship of attorney and client exists, all confidential communications made by the client to his attorney on the faith of such relationship are privileged and may not be disclosed.
In re Investigation of Death of Eric Miller, 357 N.C. 316, 328, 584 S.E.2d.
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