{ "id": 11917629, "name": "DAVID A. HALL, BRENDA G. HALL, and K. LEE McENIRY, Guardian Ad Litem of JOHN DAVID ALLEN HALL, JR., an infant v. CUMBERLAND COUNTY HOSPITAL SYSTEM, INC., d/b/a CAPE FEAR VALLEY MEDICAL CENTER", "name_abbreviation": "Hall v. Cumberland County Hospital System, Inc.", "decision_date": "1996-02-06", "docket_number": "No. COA95-286", "first_page": "425", "last_page": "434", "citations": [ { "type": "official", "cite": "121 N.C. App. 425" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "84 ALR Fed. 779", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "389 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "48" } ], "opinion_index": 0 }, { "cite": "326 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308491 ], "year": 1990, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0326-01" ] }, { "cite": "353 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "426" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 552", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168946 ], "year": 1987, "pin_cites": [ { "page": "554-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0552-01" ] }, { "cite": "293 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "84", "parenthetical": "where there is prejudicial error, appellate court may remand \"to the trial court for appropriate proceedings to determine the issue or matter without ordering a new trial\"" } ], "opinion_index": 0 }, { "cite": "306 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568322 ], "year": 1982, "pin_cites": [ { "page": "313", "parenthetical": "where there is prejudicial error, appellate court may remand \"to the trial court for appropriate proceedings to determine the issue or matter without ordering a new trial\"" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0302-01" ] }, { "cite": "333 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4692056, 4694245, 4687773 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0336-02", "/nc/314/0336-03", "/nc/314/0336-01" ] }, { "cite": "328 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "864" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524744 ], "year": 1985, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0402-01" ] }, { "cite": "315 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402561 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0631-01" ] }, { "cite": "310 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525436 ], "year": 1983, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0626-01" ] }, { "cite": "149 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "41", "parenthetical": "upon motion to quash the trial court is to determine \"the right of the witness to withhold production\" upon any ground" } ], "opinion_index": 0 }, { "cite": "267 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560503 ], "year": 1966, "pin_cites": [ { "page": "697", "parenthetical": "upon motion to quash the trial court is to determine \"the right of the witness to withhold production\" upon any ground" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0691-01" ] }, { "cite": "165 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555673 ], "year": 1969, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0506-01" ] }, { "cite": "229 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "291 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557249 ], "year": 1976, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0019-01" ] }, { "cite": "204 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "828", "parenthetical": "\"paramount duty\" of trial court to control course of trial so as to prevent injustice to any party; trial court possesses broad discretionary powers in exercise of this duty" } ], "opinion_index": 1 }, { "cite": "285 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563941 ], "year": 1974, "pin_cites": [ { "page": "271-72", "parenthetical": "\"paramount duty\" of trial court to control course of trial so as to prevent injustice to any party; trial court possesses broad discretionary powers in exercise of this duty" } ], "opinion_index": 1, "case_paths": [ "/nc/285/0256-01" ] }, { "cite": "10 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "711", "parenthetical": "within trial court's discretion to take any action within the law \"to see to it that each side has a fair and impartial trial\"" } ], "opinion_index": 1 }, { "cite": "218 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614611 ], "year": 1940, "pin_cites": [ { "page": "150", "parenthetical": "within trial court's discretion to take any action within the law \"to see to it that each side has a fair and impartial trial\"" } ], "opinion_index": 1, "case_paths": [ "/nc/218/0146-01" ] }, { "cite": "389 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1990, "pin_cites": [ { "page": "44-45", "parenthetical": "emphasis supplied" }, { "page": "48" } ], "opinion_index": 1 }, { "cite": "326 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308491 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/326/0326-01" ] } ], "analysis": { "cardinality": 858, "char_count": 21507, "ocr_confidence": 0.748, "pagerank": { "raw": 2.2559469046752014e-07, "percentile": 0.7820782215488239 }, "sha256": "c36de7eb63dc2311e6717fe5e3a090ddd448227a29c2cb22d94c034d5c859d71", "simhash": "1:ca2ac733343688fa", "word_count": 3540 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge WYNN dissents." ], "parties": [ "DAVID A. HALL, BRENDA G. HALL, and K. LEE McENIRY, Guardian Ad Litem of JOHN DAVID ALLEN HALL, JR., an infant v. CUMBERLAND COUNTY HOSPITAL SYSTEM, INC., d/b/a CAPE FEAR VALLEY MEDICAL CENTER" ], "opinions": [ { "text": "GREENE, Judge.\nCumberland County Hospital System, Inc., doing business as Cape Fear Valley Medical Center (defendant), appeals a jury verdict and judgment finding that its negligence caused injury and damage to John David Allen Hall, Jr. (John), and that he and his parents (collectively plaintiffs) are entitled to damages in the amount of $5,212,000.00 plus interest and attorney fees.\nPlaintiffs filed a complaint against defendant on 11 February 1993 alleging that the agents and employees of defendant were negligent in their judgment and \u201capplication of their knowledge and skill; failed to possess the requisite degree of skill, training and experience; and, failed to act in compliance with standards of health care required by law\u201d in their overall treatment of John. Defendant denied any negligence on the part of its employees or agents.\nOn 24 November 1993, the plaintiffs, pursuant to Rule 34 of the Rules of Civil Procedure, served the defendant with a Request for Production of Documents requesting, among other things:\nAny other documentation generated at the Defendant Hospital, including any correspondence, having anything to do with the treatment of John David Allen Hall or his mother, Brenda Green.\nOn 24 January 1994, the defendant responded to the request:\nObjection. To the extent that this request seeks the production of correspondence or other documentation covered by the attorney-client privilege or the work product doctrine, or the privilege of self-critical analysis, defendant objects to the production of any such documents.\nOn 28 April 1994, the plaintiffs, pursuant to Rule 37 of the Rules of Civil Procedure, filed a Motion to Compel Discovery of these documents and requested that the trial court \u201cexamine these materials so as to rule upon whether any are privileged in nature.\u201d On 29 May 1994, the defendant filed a response to the plaintiffs\u2019 Motion to Compel. In its response, the defendant alleged that it should not be required to produce the documents requested because they are protected by the privileges previously asserted in its response to the Request for Production of Documents. On 8 June 1994, Judge A. Leon Stanback, Jr. (Judge Stanback) entered an order allowing the plaintiffs\u2019 Motion to Compel \u201cunder the terms and conditions set forth.\u201d The \u201cterms and conditions\u201d required the defendant\nto identify and list these documents, to advise of the nature and date and author of the documents ... so as to allow the Court to rule upon a claim of privilege or otherwise Order an in camera inspection.\nOn 22 July 1994, the plaintiffs, pursuant to Rule 37 of the Rules of Civil Procedure, filed a motion for sanctions alleging that \u201cmuch of the documentation Ordered to be produced [by Judge Stanback] has not been produced.\u201d The plaintiffs requested that the trial court order the defendant \u201cto present to the Court for an in camera inspection, any and all documents to which Defendant objects to producing.\u201d On 26 July 1994, the plaintiffs\u2019 attorney, pursuant to Rule 45 of the Rules of Civil Procedure, issued a subpoena directing one of defendant\u2019s employees to produce its \u201centire Risk Management file\u201d for an \u201cin camera inspection.\u201d On 3 August 1994, the defendant filed a Motion to Quash the subpoena alleging that \u201cproduction of such sensitive and privileged information is inappropriate.\u201d\nOn 3 August 1994, the case was called for trial before Judge Wiley F. Bowen (trial judge). The trial judge indicated that he would have \u201cto [prior to ruling on the motions to quash and for sanctions] look at the file . . . because I\u2019m sure [the defendant has] . . . statutory claims of a privilege.\u201d The defendant then gave the documents to the trial judge who \u201cconducted an in-camera inspection\u201d and determined that the plaintiffs were entitled to \u201cinspect and copy\u201d certain of the documents. The trial judge then provided those documents to the plaintiffs. The following exchange occurred between the trial judge and the defendant\u2019s attorney:\n[Defendant] I\u2019m a little unclear about exactly what Your Honor is ruling on now. I had thought that the purpose of this being handed to you yesterday was in aid of their motion for sanctions in order to determine whether or not there is material that we should have given up.\n[The Court] No. I said I was not going to rule on the \u2014 I was not going to deal with the motion for sanctions because it\u2019s [sic] got so many entanglements that we\u2019re going to have to deal with that later.\n[Defendant] What is this \u2014 I mean, what motion is before the court that the court is granting that?\n[The Court] For discovery.\n[Defendant] I\u2019m not aware of a discovery motion before the court. Is there a discovery motion?\n[The Court] Well, if you want me to get into the merits of the motion for sanctions, because I understand that Judge Stanback ruled that certain documents be discovered and I was trying to stay away from that motion at this time as it regarded sanctions.\n[Defendant] In order to lay a foundation for further consideration in this matter we need to know how the court is construing our file and when there is reasonable anticipation of litigation. If it is something other than when a litigation lawyer who specializes in malpractice contacts the hospital and the hospital writes down, \u201cWe anticipate litigation at this point\u201d and notifies its insurance carrier, if it\u2019s something other than that time, then we need to preserve that as a \u2014\n[Court] I\u2019ll let you make whatever record you need to make to protect your position without prejudice.\n[Defendant] I would like the record to reflect that the defendant objects and excepts to the court\u2019s ruling turning over part of this defendant\u2019s Risk Management files to counsel for plaintiff ... in which the court physically gave possession of those articles to counsel for plaintiff on the basis that, number one, there is no motion pending under which the court might do so. . . .\nAnd further, that the court has exceeded the bounds of discovery in what it has allowed counsel to have. A portion of the materials that were turned over were materials that were produced and generated after counsel for the defense was involved in this case, and there were a portion of the materials that were generated after the lawsuit was filed and are certainly protected under the work product and work done in anticipation of litigation....\nAnd I believe that the court\u2019s action has prejudiced the defense of this case to the point that at this point we would move for a mistrial, or if that\u2019s not appropriate because the jury has not yet been impaneled, then move for a continuance on the basis that the court\u2019s action has unalterably prejudiced the defense in this case.\n[Court] Motion for mistrial is denied. Motion for continuance is denied. Motion that the court rule on the motion for sanctions is denied. Any other motions?\n[Defendant] I had moved that the court make a finding of fact as to the time when the defendant could reasonably have anticipated litigation.\n[Court] The court is disinclined to do that at this time.\nDuring the trial the plaintiffs used the information contained in the documents to cross-examine witnesses concerning conflicts between their testimony and information contained in the documents, in some instances severely impairing their credibility. After the jury returned with a verdict, the trial judge ruled on the motion for sanctions. The trial judge stated:\n[A]fter having seen what had gone on in the file, and the conflicts, [I] thought in the interest of justice that it would be appropriate for the documents ... to be delivered to the plaintiffs. I was convinced then that it was in the interest of justice to do so. I am more convinced after having heard all of the evidence in the case that it was appropriate to do so, whether it was done so on a ruling for sanctions or on a ruling for \u2014 and that is, sanctions under a proper order, or whether it was done in denial of the motion to quash of all the documents except those that were delivered. And that\u2019s what the court has done. In order to \u2014 -whether it was right or whether it was wrong, I\u2019ll let somebody else decide that.\nThe motion for sanctions, first off, requiring a valid order before you can proceed with sanctions, gives me some concerns. Also, given the history of the total discovery in this, I\u2019m not sure that if sanctions were due, that sufficient sanctions have already \u2014 that the reasons for the sanctions would be, of course, to secure the documents, the appropriate documents, and the documents have been furnished. So, for the record the motion for sanctions is denied.\nThe dispositive issue is whether the trial judge erred in releasing the documents to the plaintiffs without addressing the defendant\u2019s Rule 26(b) claims.\nA party is entitled to the discovery of documents \u201cotherwise discoverable under subsection (b)(1)\u201d if \u201cprepared in anticipation of litigation or for trial. . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.\u201d N.C.G.S. \u00a7 1A-1, Rule 26(b)(3) (1990). The court may not, however, \u201cpermit disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the material is sought or work product of the attorney or attorneys of record in the particular action.\u201d Id.-, see Willis v. Power Co., 291 N.C. 19, 35, 229 S.E.2d 191, 201 (1976). The court is also precluded from requiring disclosure of any privileged communication between the attorney and the client. N.C.G.S. \u00a7 1A-1, Rule 26(b)(1) (1990); see Brown v. Green, 3 N.C. App. 506, 512, 165 S.E.2d 534, 538 (1969). A party may not avoid the requirements of Rule 26(b) by issuance of a subpoena for the production of documents. The trial court shall quash, upon motion of the objecting party, any subpoena for the production of documents that seeks discovery of materials protected by Rule 26(b). N.C.G.S. \u00a7 1A-1, Rule 45(c) (1990) (subpoena cannot require production of \u201cprivileged communication\u201d); see Vaughan v. Broadfoot, 267 N.C. 691, 697, 149 S.E.2d 37, 41 (1966) (upon motion to quash the trial court is to determine \u201cthe right of the witness to withhold production\u201d upon any ground). -\nIn this case the plaintiffs sought discovery of certain documents in the possession of the defendant. The defendant claimed they were privileged and refused to disclose the documents. Subsequent to the plaintiffs\u2019 motion to compel discovery, Judge Stanback ordered the defendant to \u201cidentify and list the documents\u201d in a manner that would permit the trial court to \u201crule upon a claim of privilege.\u201d The plaintiffs thereafter moved for sanctions, alleging that the defendant had failed to comply with Judge Stanback\u2019s order, and issued a subpoena for the documents. The trial judge, after conducting an in camera hearing, released the documents to the plaintiffs.\nThe defendant contends that release of the documents was not supported by a valid order. We agree. It was the defendant\u2019s contention from the very beginning of the discovery process that the materials at issue were not discoverable because they were prepared in anticipation of litigation, covered by attorney-client privilege and represented work product. The defendant raised these issues not only before Judge Stanback but also before the trial judge. Indeed the trial judge acknowledged that the defendant had asserted \u201cstatutory claims of a privilege\u201d in the documents. The defendant was therefore entitled to a determination by the trial court as to (1) whether the documents were prepared in anticipation of litigation, (2) if so, whether the plaintiffs were in \u201csubstantial need\u201d of the materials and that they were unable without \u201cundue hardship\u201d to obtain the substantial equivalent by other means, (3) whether the documents included \u201cmental impressions, conclusions, opinions, or legal theories\u201d of the defendant\u2019s attorney or other representative of the defendant concerning the litigation at issue, (4) whether the documents represent the \u201cwork product\u201d of the defendant\u2019s attorney, and (5) whether the documents represent communications between the defendant and its attorneys. The trial judge erred in not making these determinations and in refusing to enter any findings of fact when requested to do so by the defendant. See N.C.G.S. \u00a7 1A-1, Rule 52(a)(2) (1990) (findings required on motions \u201cwhen requested by a party\u201d). After the trial was completed, the trial judge did indicate that he released the documents in his possession to the plaintiffs because he \u201cwas convinced . . . that it was in the interest of justice to do so.\u201d Whether the release of the documents was in the interest of justice is not relevant in the face of the defendant\u2019s Rule 26(b) claims.\nBecause the issue of the validity of the defendant\u2019s Rule 26(b) claims has not been addressed by the trial court, because we cannot adjudicate this issue for the first time on appeal, see Willoughby v. Wilkins, 65 N.C. App. 626, 636, 310 S.E.2d 90, 97 (1983), disc. rev. denied, 310 N.C. 631, 315 S.E.2d 697-98 (1984), and because the plaintiffs\u2019 use of the documents at trial probably influenced the verdict of the jury, see Warren v. City of Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864, disc. rev. denied, 314 N.C. 336, 333 S.E.2d 496 (1985), remand to the trial court is necessary. See State v. Booker, 306 N.C. 302, 313, 293 S.E.2d 78, 84 (1982) (where there is prejudicial error, appellate court may remand \u201cto the trial court for appropriate proceedings to determine the issue or matter without ordering a new trial\u201d). On remand, the trial court must review the documents at issue and determine, consistent with this opinion, the validity of the defendant\u2019s Rule 26(b) claims. If it is determined that the Rule 26 claims are valid, a new trial will be required. If it is determined that the Rule 26 claims are not valid, the jury verdict previously entered in this case will be affirmed. Either party will be entitled to appeal the Rule 26 determination.\nWe have reviewed the defendant\u2019s remaining assignments of error and determine they do not justify a new trial.\nRemanded.\nJudge McGEE concurs.\nJudge WYNN dissents.\n. If the trial court had determined that the defendant did not have a valid Rule 26 claim, the proper procedure would have been to direct the defendant to release the documents to the plaintiffs pursuant to Judge Stanback\u2019s order. If the defendant had failed to comply, the trial court could have held the defendant in contempt of court or entered other orders consistent with Rule 37. This order would have been immediately appealable. Walker v. Liberty Mut. Ins. Co., 84 N.C. App. 552, 554-55, 353 S.E.2d 425, 426 (1987).\n. This case is distinguishable from Crist v. Moffatt, 326 N.C. 326, 337, 389 S.E.2d 41, 48 (1990), where the Supreme Court affirmed an order forcing the defendant\u2019s attorney to reveal to the plaintiff the substance of all private conversations between defense counsel and the plaintiffs nonparty treating physicians. The defendant complained that this was work product under Rule 26(b)(3) and thus not discoverable. The Supreme Court in rejecting the defendant\u2019s argument held that the trial court acted within its \u201cbroad, inherent, discretionary power ... so as to prevent injustice.\u201d Id. In the Moffatt case, however, the information ordered disclosed had been unlawfully obtained by the defendant. In this case, there is no suggestion that the defendant unlawfully obtained the documents it seeks not to disclose.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Wynn\ndissenting.\nI do not view this case as a question of whether particular documents should be discoverable because of privilege. Rather, this case presents an issue of whether the trial judge abused his discretion in allowing the discovery of materials in the interest of justice. Because I find no abuse by the trial judge, I respectfully dissent from the majority\u2019s determination.\nIn Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), our Supreme Court addressed the propriety of a trial judge\u2019s disclosure of \u201cprivileged\u201d material by stating:\nAssuming, without deciding, that plaintiff impliedly waived her physician-patient privilege by her pretrial conduct, we overrule this assignment of error and uphold the finding and order entered by the trial court on grounds distinct from that of physician-patient privilege. We hold that the trial court did not abuse its broad discretionary power to ensure justice in entering the order. Miller v. Greenwood, 218 N.C. 146, 150, 10 S.E.2d 708, 711 (1940) (within trial court\u2019s discretion to take any action within the law \u201cto see to it that each side has a fair and impartial trial\u201d); see also State v. Britt, 285 N.C. 256, 271-72, 204 S.E.2d 817, 828 (1974) (\u201cparamount duty\u201d of trial court to control course of trial so as to prevent injustice to any party; trial court possesses broad discretionary powers in exercise of this duty).\nId. at 331-32, 389 S.E.2d at 44-45 (emphasis supplied). To emphasize that its ruling was based on the exercise of the trial court\u2019s discretion, the Supreme Court concluded by stating: \u201cWe affirm the order on this basis and on the basis of public policy grounds discussed below.\u201d Id. Still, the Court later reiterated the basis by stating:\n[The order] was within the broad, inherent, discretionary power of the trial court to control the course of a trial so as to prevent injustice to a party.\nId. Even later, the Court concluded by stating:\nWe have held that the trial court acted within its broad discretionary powers in ordering disclosure by defense counsel.\nId. at 337, 389 S.E.2d at 48. Thus, the Court made it clear that even if there is a privilege to be asserted, the trial court in its discretion may nonetheless allow disclosure in the interests of justice. This is true, contrary to the majority\u2019s footnote number two, regardless of how the party obtained the material.\nIn the subject case, the trial judge reasoned that it allowed the material to be discovered because he \u201cthought in the interests of justice that it would be appropriate for the documents . . ., [to] be delivered to the plaintiffs. I was convinced then that it was in the interest of justice to do so. I am more convinced after having heard all of the evidence in the case that it was appropriate to do so . . . .\u201d\nIn my view, this case is only about whether Judge Bowen abused his discretion. The record indicates that he did not. There is evidence in the record to support his determination that the documents were released in the interest of justice. As in Moffatt, I would conclude that the disclosure in this case was allowed within the broad, inherent, discretionary power of the trial court to control the course of a trial so as to prevent injustice to a party.", "type": "dissent", "author": "Judge Wynn" } ], "attorneys": [ "Rose, Ray, Winfrey, O\u2019Connor & Leslie, P.A., by Ronald E. Winfrey and Pamela S. Leslie, and John Michael Winesette and Angela M. Hatley, for plaintiff-appellees.", "Patterson, Dilthey, Clay & Bryson, L.L.P., by Robert M. Clay and Mark E. Anderson, for defendant-appellant.", "Harris, Shields and Creech, P.A., by C. David Creech, on behalf of the North Carolina Chapter of the American Society for Healthcare Risk Management, amicus curiae.", "Haywood, Denny & Miller, L.L.P, by George W. Miller, Jr. and John R. Kincaid, on behalf of the North Carolina Hospital Association, amicus curiae.", "Roberts Stevens & Cogbum, P.A., by Isaac N. Northup, Jr., on behalf of the North Carolina Association of Defense Attorneys, amicus curiae." ], "corrections": "", "head_matter": "DAVID A. HALL, BRENDA G. HALL, and K. LEE McENIRY, Guardian Ad Litem of JOHN DAVID ALLEN HALL, JR., an infant v. CUMBERLAND COUNTY HOSPITAL SYSTEM, INC., d/b/a CAPE FEAR VALLEY MEDICAL CENTER\nNo. COA95-286\n(Filed 6 February 1996)\nDiscovery and Depositions \u00a7 10 (NCI4th)\u2014 Rule 26(b) claims not adjudicated \u2014 error\nWhere defendant contended from the beginning of the discovery process that the materials at issue were not discoverable because they were prepared in anticipation of litigation, covered by attorney-client privilege, and represented work product, and defendant raised these issues before the judge who entered the order to compel production of documents and before the trial judge, the trial court erred by releasing those materials to plaintiffs without making determinations as to (1) whether the documents were prepared in anticipation of litigation, (2) if so, whether plaintiffs were in \u201csubstantial need\u201d of the materials and were unable without \u201cundue hardship\u201d to obtain the substantial equivalent by other means, (3) whether the documents included \u201cmental impressions, conclusions, opinions, or legal theories\u201d of defendant\u2019s attorney or other representative of defendant concerning the litigation at issue, (4) whether the documents represented the \u201cwork product\u201d of defendant\u2019s attorney, and (5) whether the documents represented communications between defendant and its attorneys. N.C.G.S. \u00a7 1A-1, Rules 26(bl) and (b3).\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 50 et seq.\nProtection from discovery of attorney\u2019s opinion work product under Rule 26(b)(3), Federal Rules of Civil Procedure. 84 ALR Fed. 779.\nJudge Wynn dissenting.\nAppeal by defendants from judgment entered 19 August 1994 in Cumberland County Superior Court by Judge Wiley F. Bowen. Heard in the Court of Appeals 10 January 1996.\nRose, Ray, Winfrey, O\u2019Connor & Leslie, P.A., by Ronald E. Winfrey and Pamela S. Leslie, and John Michael Winesette and Angela M. Hatley, for plaintiff-appellees.\nPatterson, Dilthey, Clay & Bryson, L.L.P., by Robert M. Clay and Mark E. Anderson, for defendant-appellant.\nHarris, Shields and Creech, P.A., by C. David Creech, on behalf of the North Carolina Chapter of the American Society for Healthcare Risk Management, amicus curiae.\nHaywood, Denny & Miller, L.L.P, by George W. Miller, Jr. and John R. Kincaid, on behalf of the North Carolina Hospital Association, amicus curiae.\nRoberts Stevens & Cogbum, P.A., by Isaac N. Northup, Jr., on behalf of the North Carolina Association of Defense Attorneys, amicus curiae." }, "file_name": "0425-01", "first_page_order": 459, "last_page_order": 468 }