The following Local Rules for the North Carolina Business Court were prepared by a committee of the North Carolina Bar Association.  The committee has attempted to anticipate questions and issues that will inevitably arise with the expanded use of technology in complex cases.  The Rules have been adopted by the Court and are currently in effect.

 

 

GENERAL RULES OF PRACTICE AND PROCEDURE

FOR THE NORTH CAROLINA BUSINESS COURT

Adopted March 9, 2000

 

 

RULE 1 – PHILOSOPHY AND GOALS

1.1 – Citation to Rules

1.2 – Purpose

1.3 – Environment

1.4 – Goals

1.5 – Integration with Other Rules

 

RULE 2 – DEFINITIONS

            2.1 – Authorization Number

2.2 – Electronic Signature

            2.3 – Electronic

            2.4 – Electronic Agent

            2.5 – Electronic Record

            2.6 – Electronic Security Procedure

            2.7 – Record            

            2.8 – Document

            2.9 – Information

            2.10 – Information Processing System

 

RULE 3 – CASE IDENTIFICATION, AUTHORIZATION NUMBERS AND ELECTRONIC SIGNATURES

            3.1 – Case Identification Numbers and Authorization Numbers

            3.2 – Electronic Signatures

            3.3 – Recipients of Electronic Identification

 

RULE 4 – SIGNATURES AND AUTHENTICITY

            4.1 – Signatures

            4.2 – Stipulations or Other Information Involving Multiple Signatures

            4.3 – Original Document

 

RULE 5 – ELECTRONIC FILING AND SERVICE

            5.1 – Attributes of Acceptable Electronic Filing

            5.2 – Certification of Electronically Filed Document

            5.3 – Notice of Electronic Filing

            5.4 – Substituted Electronic Service

5.5 – Date and Time of Filing

            5.6 – Submission of Filing

            5.7 – Events Subsequent to Filing

            5.8 – Information not Filed with the Court

            5.9 – Informal Communications

            5.10 – Additional Time Upon Filing Electronically

            5.11 – Notice and Entry of Orders, Judgments and Other Matters

            5.12 – Good Faith Efforts with respect to Electronic Communications

5.13 – Manual Service

 

RULE 6 – TECHNICAL FAILURES

            6.1 – Determination of Failure and Effect on Due Date

            6.2 – Procedure Where Notice of Electronic Filing Not Received

            6.3 – Retransmission of Electronic Filing

 

RULE 7 – PROTECTIVE ORDERS FOR INFORMATION DEEMED CONFIDENTIAL OR PROPRIETARY

            7.1 – Protective Order Respecting Proprietary Rights

 

RULE 8 – SECURITY

            8.1 – Confidentiality of Authorization Number and Electronic Signature

            8.2 – Use of Authorization Number or Electronic Signature by Additional Person

            8.3 – Compromise of Security

 

RULE 9 – FILING BY FACSIMILE TRANSMISSION

            9.1 – Faxing

 

RULE 10 – VIDEO CONFERENCING

            10.1 – By Agreement

            10.2 – Responsibility for Video Conferencing Facilities

            10.3 – Allocation of Video Conferencing Costs

            10.4 – Court Reporter

 

RULE 11 – UNDERTAKINGS OF PARTIES AND LIMITATION OF COURT LIABILITY

11.1 – Undertakings

11.2 – No Business Court Liability

11.3 – Viruses

11.4 – Obligation to File Hard Copy

 

RULE 12 – CALENDARING AND COMMENCEMENT OF ACTIONS

12.1 – Preparation of Calendar

12.2 – Appearances

12.3 – Notification of Settlement

 

RULE 13 – MOTION PRACTICE

13.1 – Form

13.2 – Content

13.3 – Motions Decided on Papers and Briefs

13.4 – Movant’s Supporting Documents and Briefs

13.5 – Response to Motion and Brief

13.6 – Extension of Time for Filing Supporting Documents and Briefs

13.7 – Reply Brief

13.8 – Limitations on Length of Briefs

13.9 – Suggestion of Subsequently Decided Authority

13.10 – Motions Not Requiring Briefs

13.11 – Failure to File and Serve Motion Materials

13.12 – Determination of Discovery Motions Through Oral Argument Without Briefs

 

RULE 14 – PRESENTATION TECHNOLOGY

14.1 – Generally

14.2 – Foundation

14.3 – Virus Prevention

            14.4 – Presentation Formats

 

RULE 15 – CASE MANAGEMENT MEETINGS, REPORTS, CONFERENCES AND ORDERS

15.1 – Case Management Meeting

15.2 – Case Management Report

15.3 – Case Management Conference

15.4 – Case Management Order

15.5 – Effect On Other Rules

 

RULE 16 – DISCOVERY

16.1 – North Carolina Rules Of Civil Procedure Applicable

16.2 – Presumptive Limits On Discovery Procedures

16.3 – Depositions

16.4 – No Filing of Discovery Materials

16.5 – Discovery with Respect to Expert Witnesses

16.6 – Conference of Attorneys with Respect to Motions and Objections Relating

to Discovery

16.7 – Expedited Resolution of Some Discovery Disputes

16.8 – Completion of Discovery

16.9 – Extension of the Discovery Period or Request for More Discovery

16.10 – Trial Preparation After the Close of Discovery

 

RULE 17 – MEDIATION

17.1 – Mediation Mandatory in All Cases

 

RULE 18 – OPENINGS AND CLOSINGS

            18.1 – Opening Statements

            18.2 – Closing Argument

 

RULE 19 – EXAMINATION OF WITNESSES

            19.1 – Examination of Witnesses

RULE 20 COURTROOM DECORUM

            20.1 – Communications and Position

            20.2 – Professional Demeanor

RULE 21 JURIES

            21.1 – Jury Instruction Conference

21.2 – Objections to Instructions

21.3 – Treatment of Instructions during Jury Deliberations

21.4 – Contacts with Jurors Prohibited

21.5 – Presence of Counsel during Jury Deliberation

RULE 22 – TRIAL DATES AND FINAL PRETRIAL PREPARATION

22.1 – Trial Date

22.2 – Final Pretrial Preparation

 

RULE 23 – COURT REPORTING CONSIDERATIONS

            23.1 – Request for Real-Time Transcription

            23.2 – Rough-Draft Transcripts

            23.3 – Publication of Transcripts

 

RULE 24 – WEB SITE AND PUBLICATION

            24.1 – Web Site

            24.2 – Citation to Business Court Opinions

 

RULE 25 – APPELLATE RECORD CONSIDERATIONS

            25.1 – Filing of Transcripts

            25.2 – Signatures on Appellate Materials


RULE 1 – PHILOSOPHY AND GOALS

1.1 – Citation to Rules.  These rules shall be known and cited as the General Rules of Practice and Procedure for the North Carolina Business Court.  They may also be referred to in abbreviated form as “BCR” or “Business Court Rules” (e.g., this section may be cited as “BCR 1.1”).

1.2 – Purpose.  The Business Court Rules are to be read in conjunction with those rules already in force and known as the “GENERAL RULES OF PRACTICE FOR THE SUPERIOR AND DISTRICT COURTS SUPPLEMENTAL TO THE RULES OF CIVIL PROCEDURE” (adopted pursuant to G.S. § 7A-34, effective July 1, 1970 as amended through September 15, 1998 and otherwise referred to as the “General Rules”).  The Business Court Rules are designed to facilitate the pretrial and trial of cases by the North Carolina Business Court and any other court(s) with comparable and compatible technical capabilities and otherwise subject to the General Rules of Practice for Superior and District Courts.  They are intended to take advantage of computer-assisted methods of information processing and the transmission of such information by advanced communications equipment:  (1) where feasible, (2) where elected by one or more parties and (3) where approved by the Court.  They are not, however, intended to operate to the exclusion of paper-driven methods of handling litigation, absent prior agreement.

1.3 – Environment.  These rules are designed to accommodate litigation and trial of cases utilizing electronic methods which include but are not limited to electronic filing, scanning, storage and reproduction of written material in machine-readable form suitable for transmission through a variety of communications media, as well as litigation and trial of cases in non-electronic form dependent upon the physical manipulation of paper writings.

1.4 – Goals.  These rules and the equipment and methods they enable are intended to provide better access to Court information for litigants, counsel and the public; increase the efficiency and understanding of Court personnel, counsel and witnesses; decrease costs for litigants and others involved in the court system; and facilitate the efficient and effective presentation of evidence in the courtroom.  Whether applied in an electronic or non-electronic environment, these rules shall be construed and enforced to avoid technical delay, encourage civility, permit just and prompt determination of all proceedings and promote the efficient administration of justice.

1.5 – Integration with Other Rules.  These rules are intended to supplement, not supplant, the General Rules.  Should any conflict be deemed to exist between the Business Court Rules and the General Rules, the General Rules shall control.

RULE 2 – DEFINITIONS

            2.1 – “Authorization Number” is the confidential number issued to a person for the purpose of authorizing that person to file electronically in a particular matter.

2.2 – “Electronic Signature” means an electronic sound, symbol, or process issued to a person by the Court and executed or adopted by that person with the intent to sign an electronic record.

2.3 – “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

            2.4 – “Electronic Agent” means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual.

            2.5 – “Electronic Record” means a record created, generated, sent, communicated, received, or stored by electronic means.  All electronic records must be capable of being printed as paper, or transferred to archival media, without loss of content or material alteration of appearance.

            2.6 – “Electronic Security Procedure” means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record.

            2.7 – “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

2.8 – “Document” means a related and paginated grouping of information items contained on a record.

            2.9 – “Information” means data, text, images, sounds or codes, manipulated manually or by computer hardware and software.

            2.10 – “Information Processing System” means a system for creating, generating, sending, receiving, storing, displaying, or processing information on paper or in an electronic medium.

           

RULE 3 – CASE IDENTIFICATION, AUTHORIZATION CODES

AND ELECTRONIC SIGNATURES

            3.1 – Case Identification Numbers and Authorization Numbers. On assignment of any matter to the Business Court, the matter shall retain the civil action number assigned to it by the clerk in the county in which the action originated. Upon application by a person authorized to file pleadings or other papers in that matter, the Court shall assign that person a unique identifier know as an Authorization Number which shall be used by that person when submitting an electronic record in connection with that matter. Authorization Numbers are case and party specific.

            3.2 – Electronic Signatures. Upon application of any person having a matter before the Business Court, the Court shall issue an Electronic Signature to such person which shall be used in connection with, and shall authorize, the electronic filing of information by such person in the Business Court. Electronic Signatures are not case specific. The utilization of an Electronic Signature in connection with any electronic filing in the Business Court shall constitute (a) the agreement of the person to whom the Electronic Signature has been issued that such person shall use the Electronic Signature in compliance with the rules and procedures of the Business Court for electronic filing and all other rules applicable to the Business Court and (b) an appearance in the matter in which the filing is made of the person to whom the Electronic signature is issued.

            3.3 – Recipients of Electronic Identification.  Each person to whom an Authorization Number or Electronic Signature is issued (the “Recipient”) shall be responsible for the security and use of such identifications.  Any electronic filing made utilizing an Authorization Number or an Electronic Signature shall be deemed to be made with the authorization of the Recipient, unless and until the contrary is demonstrated by the Recipient to the satisfaction of the Court by clear and convincing evidence.

RULE 4 – SIGNATURES AND AUTHENTICITY

            4.1 – Signatures.  Information filed with the Court electronically shall be deemed to be signed by a person (the "Signatory"), regardless of the existence of a physical signature on the paper, provided that such paper is filed by the Signatory using an Authorization Number and an Electronic Signature, and that the paper contains the name, postal address, e-mail address and State Bar number (if applicable) of the Signatory in the location at which a written signature would normally appear if filed in paper form.  Information filed electronically need not be filed in an optically scanned format displaying an actual signature of the Signatory.

            4.2 – Stipulations or Other Information Involving Multiple Signatures.  In the case of a stipulation or other information to be signed by two or more persons representing different parties, such information may be filed and Signatures may be affixed to two or more electronic filings of such information as follows: The person who files such information shall initially confirm that the content of the document is acceptable to all persons due to sign the information and shall represent to the Court in the body of the information or in an accompanying filing that such agreement has been obtained.  Such Signatory shall then file the information.  Not later than the first business day after such filing, all other persons due to sign the information shall file electronically one or more Notices of Endorsement of the information.  The information shall be deemed fully executed upon the filing of all Notices of Endorsement that are due, nunc pro tunc, as of the time the paper was filed.

            4.3 – Original Document.  Information (filed electronically in accordance with these Rules) as it resides in the Court’s computer system, and true and accurate printouts of such information, shall be considered authentic.  The Court may require the party to produce the original of a document, document attachment or exhibit that has been filed electronically.  A screen display or paper printout of an electronic filing is equivalent to the electronic original for purposes of the Best Evidence Rule, if the display or printout is at a degree of optical resolution equal to the resolution at which the document is stored in the records of the Court.

RULE 5 – ELECTRONIC FILING AND SERVICE

            5.1 – Attributes of Acceptable Electronic Filing.  In any case assigned to the Business Court, any information required or permitted to be filed with the Clerk of Superior Court may be filed electronically in the Business Court using its electronic filing system.  Electronic filing may be conducted only through authorized use of a valid Authorization Number and Electronic Signature in accordance with these Rules.  All electronic filings shall be made using only those file formats approved by the Court, and the format for each electronic filing shall be designated by using a generally recognized file extension that identifies a particular format.  The manipulation of any file or the use of any technique with the purpose of rendering more difficult than normal the humanly viewable display of any file is strictly prohibited.

            5.2 – Certification of Electronically Filed Document.  For the purposes of Rule 11 of the North Carolina Rules of Civil Procedure and these Business Court Rules, any electronically filed information shall be deemed signed by one or more counsel of record or unrepresented parties (each, a "Signatory") pursuant to Rule 4 of these Rules.

            5.3 – Notice of Electronic Filing.  Electronic transmission of a paper to the Business Court file server in accordance with these Rules, together with the receipt of a Notice of Electronic Filing automatically generated by the Electronic Filing System as authorized by the Court, shall constitute filing of the paper for purposes of timing under the North Carolina General Statutes, the North Carolina Rules of Civil Procedure and the Local Rules of the Business Court, and shall constitute entry of that paper on the Business Court Docket.  Persons filing electronically are still required to file a hard copy with the Clerk of Superior Court in the county in which the matter is pending.  See Rule 11.4.  An electronic filing may be deemed complete only upon receipt of such Notice of Electronic Filing by the person filing the paper.

            5.4 – Substituted Electronic Service.  Service of pleadings and other communications with the Court shall be governed by the Case Management Order.  Where the Case Management Order calls for use of Electronic Filing in a matter, receipt by e-mail of a Notice of Electronic Filing at the e-mail address specified in the Case Management Order shall constitute an adequate and timely substitute for service pursuant to the North Carolina Rules of Civil Procedure as applied to information in documents in non-electronic media.  Each person who has consented to service by e-mail shall be responsible for the timely monitoring of receipt of e-mail messages, the proper operation of the person’s e-mail service and the prompt notification of the Court and all other persons involved in a matter of any change in e-mail address.

            5.5 – Date and Time of Filing.  When information has been filed electronically, the official information of record is the electronic recording of the information as stored on the Court’s file server, and the filing date and time is deemed to be the date and time recorded on the Court’s file server for transmission of the Notice of Electronic Filing, which date and time is stated in the body of such Notice.  Nothing in these Rules shall require the filing of any information in the Business Court by electronic means or shall preclude the filing of a physical copy of any paper with the appropriate Clerk of Superior Court in addition to electronic filing.

            5.6 – Submission of Filing.  An electronic filing may be submitted to the Court at any time of the day or night.  For purposes of determining timeliness, a filing shall be deemed to occur (i) on the date the filing was submitted if the submission began during normal business hours of the Business Court (8:00 a.m. -- 5:00 p.m., Monday through Friday, excluding holidays), and (ii) on the next day the Business Court is open for business if submission began after normal business hours of the Business Court.

            5.7 – Events Subsequent to Filing.  In the event that information is timely filed both in paper form and electronically, the date and time of the electronic filing shall govern the creation or performance of any further right, duty, act or event required or permitted under North Carolina law or applicable rule, unless the Court shall determine that enforcement of such priority on a particular occasion will result in manifest injustice to another party.

5.8            Information not Filed with the Court.  The parties may elect to serve electronically information not filed with the court (e.g., discovery).

(a)                Service. All information that is served electronically, but not filed electronically in the Business Court shall be served on all persons or entities required to be served in the manner designated in the Case Management Order. Service by e-mail shall be deemed satisfied by transmitting the information by e-mail in a format approved by the Court or agreed upon by the parties. 

(b)               Time service occurs.  Service of an electronically transmitted document shall be deemed to occur one hour after it is sent, provided that (i) documents sent after 5 p.m. shall be deemed sent at 8 a.m. the following day; and (ii) documents sent by electronic means that are not in a format in which the content is fully accessible to the recipient shall not be deemed served until actually received in a form in which the content is fully accessible to the receiving party.  Where service of a document is made by electronic means, the time to respond shall be computed in the same manner as for documents that are served by hand delivery, provided that the Court may, upon motion or sua sponte, enlarge or shorten the time as it may determine is appropriate in specific instances.

5.9 – Informal Communications.  All communications with the Court that are not filed in the Business Court Electronic Filing System (e.g., letters to the Court) shall be simultaneously sent to all other parties in the case via e-mail (and if a party cannot receive e-mail, by facsimile transmission).  The transmitting party shall promptly notify the Court if he is unable to comply with this rule.

5.10 – Additional Time Upon Filing Electronically.  Whenever a person has the right or is required to do some act or engage in some process within a prescribed period after the service of information upon the person, and such information is filed and/or served electronically pursuant to these Rules, one calendar day shall be added to the prescribed period.

            5.11 – Notice and Entry of Orders, Judgments and Other Matters.  The Court shall file electronically all orders, decrees, judgments and proceedings of the Court, and all other docket matters, which shall constitute entry of the order, decree, judgment or proceeding on the Court’s Docket, pursuant to applicable law and procedure.  Immediately upon the entry of such matter on the Docket, the Court shall transmit to each e-mail address of record a notice of the entry.  Transmission of such Notice of Entry shall constitute service pursuant to Rule 58 of the North Carolina Rules of Civil Procedure.  A hard copy of all orders will be filed with the Clerk of Superior Court in the county in which the matter is pending.

5.12 – Good Faith Efforts with respect to Electronic Communications.  The parties shall make all reasonable endeavors in good faith to resolve technical incompatibilities or other obstacles to electronic communications, provided that no purchase of hardware or software shall be required and no extensive “manual” reformatting of documents shall be expected.  Parties shall, for example, attempt to identify and correct problems which render content of communications inaccessible and shall save or transmit documents in electronic formats that are mutually available to all parties receiving them.  It shall not be consistent with the rules for a party to object to use of electronic communications and fail to cooperate in resolving a problem upon which the objection is based.  In the event that a party asserts that it did not receive an e-mail communication or could not fully access its contents, the sending party shall promptly forward the communication to the party by other means, notify the Court that the information has not been received by another party  and make reasonable efforts to assure that the receiving party obtains and is able to access the communication at issue and subsequent communications.  No party shall encrypt the contents of a message or change the electronic format in a manner which prevents a party from having access to all information made available to the Court.

5.13 – Manual Service.  When service of any paper or notice is required to be provided to a person who has not consented to e-mail service, service shall be given in paper form pursuant to the North Carolina Rules of Civil Procedure or in such other manner as has been agreed to in the Case Management Order.

RULE 6 – TECHNICAL FAILURES

            6.1 – Determination of Failure and Effect on Due Date.  The Court shall deem the Electronic Filing System to be subject to a technical failure on a given day if the Court server is unable to receive and accept filings in accordance with these Rules, either continuously or intermittently over the course of any period of time that, after 12:00 noon on such day, amounts in the aggregate to more than one hour.  In the event of a technical failure, filings due that day which were not filed due solely to such technical failures shall become due the next business day.  Such delayed filings shall be rejected unless accompanied by a declaration or affidavit attesting to the filing person's failed attempts to file electronically at least two times after 12:00 p.m. separated by at least one hour on each day of delay due to such technical failure.

            6.2 – Procedure Where Notice of Electronic Filing Not Received.  If a Notice of Electronic Filing is not received from the Court in response to a transmission of information for filing, the information will not be deemed filed.  The person making the filing must attempt to re-file the information electronically until such a Notice is received, consistent with the provisions of subparagraph 6.1 permitting delayed filings.  Each person using the Electronic Filing System is solely responsible for the proper operation of all equipment and facilities used to transmit an electronic filing.

            6.3 – Retransmission of Electronic Filing.  If, within 24 hours after filing information electronically, any party discovers that the version of the information available for viewing through the Electronic Filing System is incomplete, garbled or otherwise does not conform to the information as transmitted when filed, such party shall notify the Court immediately and retransmit the filing if necessary.

RULE 7 – PROTECTIVE ORDERS FOR INFORMATION

DEEMED CONFIDENTIAL OR PROPRIETARY

            7.1 – Protective Order Respecting Proprietary Rights.  In connection with the electronic filing of any information in the Business Court, any person may apply by motion for an order prohibiting the electronic filing in the matter of certain specifically-identified information on the grounds that such information is subject to a proprietary right or a right of confidentiality and that electronic filing is likely to result in substantial prejudice to those rights.  A motion for such an order shall be filed not less than three business days before the information to which the motion pertains is due to be filed with the Court.  Nothing in this paragraph shall be construed to change any requirement or standard that otherwise would be applicable for issuance of a protective order per se or in connection with information contained in a paper record.

RULE 8 – SECURITY

            8.1 – Confidentiality of Authorization Number and Electronic Signature. Each person shall maintain as confidential, except as expressly provided in these rules, the Authorization Number and Electronic Signature issued to them by the Court.  Upon learning about information constituting reasonable evidence of the likely compromise of the confidentiality of either an Authorization Number or an Electronic Signature, an individual shall immediately notify the Court.

            8.2 – Use of Authorization Number or Electronic Signature by Additional Person.  A person to whom an Authorization Number or Electronic Signature has been issued may authorize another person to file a paper using his number and signature; however, the authorizing person shall retain full responsibility for any paper so filed or for other use of such number and signature.

            8.3 – Compromise of Security.  Any attempt or effort to avoid, compromise or alter any security element of the Electronic Filing System is strictly prohibited.  Any person receiving information constituting reasonable evidence of a likely occurrence of such an attempt or effort shall immediately notify and cooperate with the Court concerning such information.

RULE 9 – FILING BY FACSIMILE TRANSMISSION

            9.1 – Faxing.  Any information required or permitted to be filed under these rules may be filed by transmitting a facsimile copy to the public fax machine located at the Business Court.  The date and time recorded for completion of such facsimile transmission by the Business Court facsimile system shall establish the time of filing.  Any person or entity submitting a filing by such facsimile method shall assume all risk of error, malfunction, misdirection or other error that causes a failure in transmission or otherwise prevents receipt by the Court of a complete and accurate filing.  In the event of a filing by facsimile, filing party shall use its best efforts to serve on all parties by facsimile transmitted the same day.  If unable to serve by facsimile after diligent efforts, the filing party may serve by hand delivery or overnight courier for receipt the next business day if within the state, and by the day following the next business day if outside the state.  The Court may receive a facsimile transmission into a computer file, rather than receiving such a transfer onto paper, and shall image such facsimile transmission for further system use.  Persons filing by facsimile with the Business Court are still required to file a hard copy with the Clerk of Superior Court in the county in which the matter is pending.  See Rule 11.4.

RULE 10 – VIDEOCONFERENCING

            Rule 10.1 – By Agreement.  By mutual agreement, counsel may arrange for any proceeding or conference to be held by videoconference by coordinating a schedule for such meeting that is convenient with the Business Court.  All Counsel and other participants shall be subject to the same rules of procedure and decorum as if the meeting were held in the courtroom of the Business Court.

            Rule 10.2 – Responsibility for Videoconferencing Facilities.  The parties are responsible for obtaining all communications facilities and arranging all details as may be required to connect and interface with the videoconferencing equipment available to the Business Court.  The Business Court will endeavor to make reasonable technical assistance available to the parties concerning the specifications and requirements of the Court’s equipment, but all responsibility for planning and executing all technical considerations required to hold a videoconference successfully shall remain solely with the parties.

            Rule 10.3 – Allocation of Videoconferencing Costs.  In the absence of a contrary agreement among the parties, each party participating by videoconference shall bear its own costs of participating in the conference.

            Rule 10.4 – Court Reporter.  Where any proceeding or conference is held by videoconference, the court reporter transcribing such proceeding or conference will be present in the Business Court.

RULE 11 – UNDERTAKINGS OF PARTIES

AND LIMITATION OF COURT LIABILITY

 

11.1 – Undertakings.  Parties wishing to utilize the computer-assisted facilities of the Business Court agree by accessing such facilities to abide by all aspects of these rules, including conditions of access and use and security procedures set out herein and as they may subsequently be published by the Business Court.

11.2 – No Business Court Liability.  Attorneys, litigants and all other persons granted access to the computer-assisted facilities of the Business Court agree that the Business Court shall not be liable to them for damages of any kind resulting from the negligent misuse of Court facilities.  Such misuse may result in Court sanctions or, in the instance of an aggrieved party, in a right to pursue compensatory damages from a party who intentionally or negligently misuses Court facilities.  Such misuse shall be deemed to include the introduction of computer viruses into information handling systems of the Court or other parties, where virus control software recommended by the Court is not being used.

11.3 – Viruses.  Any party filing electronically shall check each file to be transmitted for viruses before transmitting.  Any electronic filing submitted to the Court containing viruses will be rejected by the Court's computer system.

11.4 – Obligation to File Hard Copy.  Electronic or facsimile filing of written material with the Court does not relieve parties of the obligation to file a hard copy of all such material with the Clerk of Superior Court of any judicial district or county in which the matter is pending.  The hard copy shall be filed within ten (10) business days from the date of electronic filing.

RULE 12 – CALENDARING AND COMMENCEMENT OF ACTIONS

12.1 – Preparation of Calendar.  The calendar for the Business Court shall be prepared under the supervision of the Business Court Judge and published on the Business Court Web Site.  Where e-mail addresses have been provided to the Business Court, Notices of Hearing shall be distributed by e-mail to each attorney of record (or party where there is no attorney of record) no later than five (5) business days prior to the day of the hearing unless otherwise specified by the Case Management Order.  An attorney or party who has not provided an e-mail address to the Court will receive Notices of Hearing via facsimile, or where no facsimile number is available, by first class mail.

12.2 – Appearances.  An attorney and/or unrepresented party who is notified to appear for the setting of a calendar, pretrial conference, hearing of a motion or for trial, must, consistent with ethical requirements, appear or have a partner, associate or another attorney familiar with the case present.  Unless an attorney has been excused in advance by the Business Court Judge and has given prior notice to opponent(s), a case will not be continued for failure of appearance.

12.3 – Notification of Settlement.  When a case is settled, all attorneys or unrepresented parties of record must notify the Business Court Judge or the Judge’s designee within twenty-four (24) hours of the settlement and must advise the Court of the identity of the party or parties who will prepare and present the judgment, dismissal or stipulation of dismissal and when such filings will be presented.

RULE 13 – MOTION PRACTICE

13.1 – Form.  All motions, unless made orally during a hearing or a trial, shall be in paper writing or electronic form and shall be accompanied by a brief, except as provided in Rule 13.10.  Each motion shall be set out in a separate pleading.  Where the terms “Motion,” “Brief,” “Affidavit,” “Document,” “Deposition” and like designations are used herein, they shall refer to such items in paper writing or electronic form as determined appropriate under these rules.

13.2 – Content.  All motions shall state with particularity the grounds therefor, shall cite any statute or rule of procedure relied upon and shall set forth the relief or order sought.

13.3 – Motions Decided on Papers and Briefs.

(a)            Motions shall be considered and decided by the Court on the pleadings, admissible evidence, the official court file, and briefs, without hearing or oral argument, unless otherwise ordered by the Court.  Special considerations thought by counsel sufficient to warrant a hearing or oral argument may be brought to the Court’s attention in the motion or response.

(b)            If the Court grants oral argument on any motion, it shall give the parties at least five (5) business days’ notice of the date and place of oral argument.  The Court, however, for good cause shown, may shorten the five (5) day notice period.  The Court may in its discretion conduct any oral argument by telephone or video conference.

13.4 – Movant’s Supporting Documents and Briefs.  If allegations of facts not appearing of record are relied upon to support a motion, affidavits, parts of depositions, and other pertinent documents then available shall accompany the motion.  If supporting documents are not then available, the moving party may move for an extension of time in accordance with Rule 13.6.

13.5 – Response to Motion and Brief.  The respondent, if opposing a motion, shall file a response, including brief, within twenty (20) days after service of the motion, (or thirty (30) days if the motion is for summary judgment).  If supporting documents are not then available, the respondent may move for an extension of time in accordance with Rule 13.6.  For good cause appearing therefor, a respondent may be required by the Court to file any response and supporting documents, including brief, within such shorter period of time as the Court may specify.

13.6 – Extension of Time for Filing Supporting Documents and Briefs.  Upon proper motion accompanied by a proposed Order, the Court may enter an ex parte Order, specifying the time within which supporting documents and briefs may be filed pursuant to Sections 13.4 and 13.5, if it is shown by written or electronic filing that such documents are not available or cannot be filed contemporaneously with the motion or response.  The time allowed to an opposing party for filing a response shall not run during any such extension.  If good cause to grant the motion is not apparent upon the face of the motion, the Court may direct that the motion be served upon the opposing party, who shall be allowed ten (10) days to respond.

13.7 – Reply Brief.  A reply brief may be filed within ten (10) days after service of the response.  A reply brief is limited to discussion of matters newly raised in the response.

13.8 – Limitations on Length of Briefs.  Unless modified by the Court for good cause shown, briefs in support of motions and responsive briefs shall be double-spaced and limited in length to a maximum of five thousand (5,000) words.  Reply briefs shall also be double-spaced and may not exceed twenty five hundred (2,500) words.

13.9 – Suggestion of Subsequently Decided Authority.  As an addendum to a brief, response brief or reply brief, a suggestion of subsequently decided controlling authority, without argument, may be filed at any time prior to the Court’s ruling and shall contain only the citation to the case relied upon, if published, or a copy of the opinion if the case is unpublished.

13.10 – Motions Not Requiring Briefs.  No brief is required by either movant or respondent, unless otherwise directed by the Court, with respect to the following motions:

(a)            discovery motions in which the parties have agreed to the expedited procedures described in Rule 13.12;

(b)            for extension of time for the performance of an act required or allowed to be done, provided request therefor is made before the expiration of the period originally prescribed or extended by previous orders;

(c)            to continue a pre-trial conference, hearing, or the trial of an action;

(d)            to add parties;

(e)            to amend the pleadings;

(f)            to file supplemental pleadings;

(g)            to appoint a next friend or guardian ad litem;

(h)            for substitution of parties;

(i)            to stay proceedings to enforce judgment; and

(j)            for pro hac vice admission of counsel who are not members of the North Carolina State Bar.

The above motions, which are not required to be accompanied by a brief, must state good cause therefor and cite any applicable rule, statute or other authority justifying the relief sought.  These motions must be accompanied by a proposed Order.

13.11 – Failure to File and Serve Motion Materials.  The failure to file a brief or response within the time specified in this rule shall constitute a waiver of the right thereafter to file such brief or response, except upon a showing of excusable neglect.  A motion unaccompanied by a required brief may, in the discretion of the Court, be summarily denied.  A response unaccompanied by a brief may, in the discretion of the Court, be disregarded and the pending motion may be considered and decided as an uncontested motion.  If a respondent fails to file a response within the time required by this rule, the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice.

13.12 – Determination of Discovery Motions Through Oral Argument Without Briefs.  With the consent of both parties and as allowed by the Court, the parties may present motions and the Court may resolve disputes regarding discovery matters through the use of an expedited oral argument procedure.  Such motions will routinely be limited to matters which can be argued and determined in one hour or less.

RULE 14 – PRESENTATION TECHNOLOGY

14.1 – Generally.  Electronic presentations and technologically generated demonstrative evidence should be used to enhance the trier-of-fact’s understanding of facts in the action or to further the convenience or efficiency of the litigation process.  Presentations which contain technological aspects that primarily add dramatization or “special effects” may be excluded pursuant to North Carolina Rule of Evidence 403.  In making the determination, the Court will consider, in addition to any other matters it deems pertinent, the extent to which the presentation serves proper purposes, the extent to which the manner of the presentation may enhance a party’s factual contentions without adequate foundation, and the opposing party’s technological resources, means, and ability to prepare to rebut the presentation.

14.2 – Foundation.  No graphic reconstructions, dramatizations, or other technologically manufactured representations shall be permitted unless:

(a)            all representations made or conveyed in the presentation that may be probative to issues in the case or prejudicial to another party are supported by other competent evidence presented in the trial; and

(b)               the opposing party has been given an adequate notice and opportunity, determined under the circumstances of the case, to review the presentation and obtain any relevant information concerning its preparation prior to it being presented to the trier-of-fact.

14.3 – Virus Prevention.  Any media brought into the Business Court for presentation purposes shall be checked for viruses using appropriate virus scanning software before such media are used in the courtroom.

14.4 – Presentation Formats.  All presentation software not in conformance with the file formats accepted by the Court may not be utilized in the courtroom without the prior express approval of the Court.

RULE 15 – CASE MANAGEMENT MEETINGS,

REPORTS, CONFERENCES AND ORDERS

 

15.1 – Case Management Meeting.  Within thirty (30) days of filing of assignment of a case to the Business Court, or such shorter or longer time as the Court shall order, the parties shall meet to discuss the following potential components of a Case Management Order:

(a)                The length of the discovery period, the number of fact and expert depositions to be permitted and, as appropriate, the length and sequence of such depositions;

(b)               A preliminary schedule for depositions of such persons and entities as the parties are able to identify;

(c)                The identity and number of any Motions to Dismiss or other preliminary or pre-discovery motions which shall be filed and the time period in which they shall be filed, briefed and argued;

(d)               The time period after the close of discovery within which post-discovery dispositive motions shall be filed, briefed and argued and a tentative schedule for such activities;

(e)                The timing of any mediated settlement conference (see Rule 17) and the selection of a mediator or group of mediators;

(f)                 An estimate of the volume of documents and/or computerized information likely to be the subject of discovery in the case from parties and nonparties and whether there are technological means which may render document discovery more manageable at an acceptable cost;

(g)                The number of interrogatories which shall be allowed each party;

(h)                The advisability of using special master(s) for fact finding, mediation of discovery disputes or such other matters as the parties may agree upon;

(i)                  The situs of pretrial and trial proceedings;

(j)                 Whether or not a party or parties desire to use the electronic filing, case tracking, scanning, videographic and real-time court reporting capabilities of the Court; and to the extent this is the case, a determination of:

(1)            Fairness issues, including but not necessarily limited to use of such capabilities by some but not all parties and/or by parties whose resources permit or require variations in the use of such capabilities;

(2)            Issues related to compatibility of court and party facilities and equipment;

(3)            Issues related to the use of demonstrative exhibits and any balancing of relevance and potential prejudice which may need to occur in connection with such exhibits;

(4)            Such other issues related to the use of the Court’s and Parties’ special technological facilities as may be raised by any party or the Court or its technological advisor, given the nature of the case and the resources of the parties.

(k)               A good faith estimate by counsel for each party based upon consultation with each such party of the costs each party is likely to incur in pursuing the litigation through trial court adjudication;

(l)               A preliminary listing of the principal legal and factual issues which counsel believe will need to be decided in the case;

(m)           Such other matters as the Court may assign to the parties for their consideration.

15.2 – Case Management Report.  The views of each party on the matters set forth in Section 15.1 above, as expressed through counsel or any pro se litigant(s), shall be reduced to writing, circulated for amendment or modification by each party and provided to the Court within ten (10) days of the Case Management Meeting in the form of a Case Management Report.

15.3 – Case Management Conference.  Within twenty (20) days of the case management meeting of the parties or such longer period as the Court may prescribe, the Court will convene a Case Management Conference with attendance by counsel for all parties and their clients (or in the case of a business entity, such representative as has authority to make all binding litigation-related decisions) unless the Court shall, in its discretion, excuse the attendance of clients.  Such conference will be conducted with as much informality as possible and with the active participation of clients encouraged.  The Court will hear the views of counsel and/or clients on such issues listed in Rule 15.1 above as are pertinent to the case and/or on which there are material differences of opinion.

15.4 – Case Management Order.  Following the Case Management Conference, the Court shall issue a Case Management Order in the form appended to these Rules as Exhibit A.  The Case Management Order will deal with such issues developed in the Case Management Meeting and/or the Case Management Conference as may be determined at the time, given the nature and status of the case.  The provisions of the Case Management Order may not be deviated from without notice, grant of a hearing which is discretionary with the Court, good cause shown and entry of an Order by the Court.  The Case Management Order shall also specify a schedule of status conferences to assess the functioning of the Case Management Order, assess the progress of the case, and enter such further orders or revisions in the Case Management Order, including a trial date, as the Court may deem necessary or appropriate.

15.5 – Effect On Other Rules.  This Rule 15 is intended to supplement, not substitute for, the provisions of Rule 7 and its related Sample Form dealing with pre-trial conferences and orders as contained in the General Rules of Practice for Superior and District Courts.

RULE 16 – DISCOVERY

16.1 – North Carolina Rules Of Civil Procedure Applicable.  Except as expressly amended or superseded by these rules, the North Carolina Rules of Civil Procedure governing the conduct of depositions and discovery in State Courts shall control causes in the Business Court.

16.2 – Presumptive Limits On Discovery Procedures.  Subject to an Order modifying discovery procedures for good cause shown, the Court expects discovery in cases assigned to the Business Court to be completed within nine (9) months from the date of assignment.  Presumptively, subject to stipulation of the parties and order of the Court for good cause shown, interrogatories (including sub-parts) and requests for admission are limited to fifty (50) in number by each party.  Depositions are presumptively limited to twelve (12) depositions (not including depositions of testifying experts) by the plaintiffs, by the defendants, and by any third-party defendants.

16.3 – Depositions.  The Court expects counsel to conduct discovery in good faith and to cooperate and be courteous with each other in all phases of the discovery process.  Depositions shall be conducted in accordance with the following guidelines:

(a)            Counsel shall not direct or request that a witness not answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by the Court.

(b)            Counsel shall not make objections or statements which might suggest an answer to a witness.  Counsel’s statements when making objections should be succinct, stating briefly the basis of the objection and nothing more.

(c)            Counsel and any witness/client shall not engage in private, off the record conferences while the deposition is proceeding in session, except for the purpose of deciding whether to assert a privilege.

(d)            Deposing counsel shall provide to the witness’ counsel and counsel for all parties present a copy of all documents shown to the witness during the deposition.  The copy may be provided either before the deposition begins or contemporaneously with the showing of each document to the witness.  The witness and the witness’ counsel may not discuss documents privately before the witness answers questions about them.

16.4 – No Filing of Discovery Materials.  Depositions and deposition notices, interrogatories, requests for documents, requests for admission, and answers and responses thereto shall not be filed electronically on the Court’s Electronic Filing System unless the Court so orders or unless the Court will need such documents in a pretrial proceeding.  All discovery materials must be served on other counsel or parties, and may be done so electronically pursuant to Rule 5.8 above.  The party taking a deposition or obtaining any material through discovery (including through third party discovery) is responsible for the preservation and delivery of such material to the Court when needed or ordered in the form specified by the Court.  Any party seeking to compel discovery or other pre-trial relief based upon discovery material which has not been filed must identify the specific portion of the material which is directly relevant and ensure that it is filed as an attachment to the application for relief.

16.5 – Discovery with Respect to Expert Witnesses.  The Case Management Order shall provide that discovery with respect to experts be conducted within the discovery period established in the case.  The Order shall set the date on which disclosure of expert information required by the North Carolina Rules of Civil Procedure must be made.

16.6 – Conference of Attorneys with Respect to Motions and Objections Relating to Discovery.  The Court will not consider motions and objections relating to discovery unless moving counsel files a certificate that, after personal consultation and diligent attempts to resolve differences, the parties are unable to reach an accord.  The certificate shall set forth the date of the conference, the names of the participating attorneys, and the specific results achieved.  It shall be the responsibility of counsel for the movant to arrange for the conference and, in the absence of an agreement to the contrary, the conference shall be held in the office of the attorney nearest to the Court where the case was originally filed.  Alternatively, at any party’s request, the conference may be held by telephone.

16.7 – Expedited Resolution of Some Discovery Disputes.  If, after a conference as required by Rule 16.6, the parties agree that a discovery dispute can be ruled upon in a telephone or video conference of no more than thirty (30) minutes, the Court will schedule such a conference and rule on the dispute without briefing by the parties.  Alternatively, if the parties agree that the dispute can be ruled upon in an in-court hearing of no more than one hour, without briefing, subject to Rule 13.12 the Court will schedule a hearing of such matter at the earliest date reasonably available to the Court and the parties.  The fact that these proceedings are expedited and are conducted without briefing does not alter the application of N.C. Rule of Civil Procedure 37(a)(4) relating to the imposition of sanctions and the award of expenses.

16.8 – Completion of Discovery.  The requirement that discovery be completed within a specified time means that adequate provisions must be made for interrogatories and requests for admission to be answered, for documents to be produced, and for depositions to be held within the discovery period.  Normally the Court will not entertain motions relating to discovery conducted after the close of the discovery period as set forth in the Court’s Case Management Order.

16.9 – Extension of the Discovery Period or Request for More Discovery.  Motions seeking an extension of the discovery period or permission to take more discovery than is permitted under the Case Management Order must be made or presented prior to the expiration of the time within which discovery is required to be completed.  Such motions must set forth good cause justifying the additional time or additional discovery and will be granted or approved only upon such a showing of good cause and a showing that the parties have diligently pursued discovery.  The Court will permit additional depositions usually only upon a showing of exceptionally good cause.

16.10 – Trial Preparation After the Close of Discovery.  For good cause appearing therefor, the physical or mental examination of a party may be ordered at any time prior to or during trial.  Ordinarily, the deposition of a material witness not subject to subpoena should be taken during discovery.  However, the deposition of a material witness who agrees to appear for trial, but later becomes unavailable or refuses to attend, may be ordered at any time prior to or during trial.

RULE 17 – MEDIATION

17.1 – Mediation Mandatory in All Cases.  Mediation is a valued tool in the resolution of litigated matters.  As such, all cases pending in the Business Court shall be subject to the Rules Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions and such other Rules or Orders consistent therewith as may be established or entered by the Business Court.

RULE 18 – OPENINGS AND CLOSINGS

            18.1 – Opening Statements.  At any time before the presentation of evidence, counsel for each party may make an opening statement setting forth the grounds of claim or defense.  The parties may elect to waive opening statements.  Opening statements may be limited in time and scope in the discretion of the Court.

            18.2 – Closing Argument.  If no evidence is produced by the defendant, the right to open and close the argument to the jury shall belong to the defendant.  If a question arises as to whether the plaintiff or the defendant has the final argument to the jury, the Court shall decide who is so entitled, and its decision shall be final.

            In a case where there are multiple defendants, if any defendant introduces evidence, the closing argument shall belong to the plaintiff, unless the Business Court Judge in his discretion orders otherwise.

RULE 19 – EXAMINATION OF WITNESSES

            19.1 When several counsel are employed by the same party, the examination or cross-examination of each witness for such party shall be conducted by one counsel, but examining counsel may change with each successive witness or, with leave of the Court, during a prolonged examination of a single witness.

RULE 20 COURTROOM DECORUM

            20.1 – Communications and Position.  Counsel are at all times to conduct themselves with dignity and propriety.  All statements and communications to the Court shall be clearly and audibly made from a standing position behind the counsel table or the computer-assisted podium.  Counsel shall not approach the bench except upon the permission or request of the Court.

            Colloquies between and disrespectful references to opposing counsel shall be strictly avoided.  Adverse witnesses and parties must be treated with fairness and due consideration.  Abusive language or offensive personal references are strictly prohibited.

            The examination of witnesses and jurors shall be conducted from a sitting position behind the counsel table or from the computer-assisted podium, except as otherwise permitted by the Court.  Counsel may only approach a witness for the purpose of presenting, inquiring about, or examining that witness with respect to an exhibit, document, or diagram.

            20.2 – Professional Demeanor.  The conduct of the lawyers before the Court and with other lawyers should be characterized by candor and fairness.  Counsel shall not knowingly misrepresent the contents of documents or other exhibits, the testimony of a witness, the language or argument of opposite counsel or the language of a decision or other authority; nor shall counsel offer evidence known to be inadmissible.  In an argument addressed to the Court, remarks or statements may not be interjected to improperly influence or mislead the jury.

            Counsel shall yield gracefully to rulings of the Court and avoid disrespectful remarks both in court and out.  Counsel shall at all times conduct themselves in a manner which promotes respect for the Court and the judicial process.

RULE 21 JURIES

            21.1 – Jury Instruction Conference.  At the close of the evidence (or at such earlier time as the judge may reasonably direct) in every jury trial, the judge shall conduct a conference on instructions with the attorneys of record (or party, if not represented by counsel).  Such conference shall be out of the presence of the jury, and shall be held for the purpose of discussing the proposed instructions to be given to the jury.  If special instructions are desired, they must be submitted in writing to the trial judge at or before the jury instruction conference.

21.2 – Objections to Instructions.  An opportunity shall be given to the attorneys (or party, if not represented by counsel) to request any additional instructions or to object to any of those instructions proposed by the judge.  Any such requests, objections and the rulings of the Court thereon shall be placed on the record.

At the conclusion of the charge and before the jury begins its deliberations (and out of the hearing, or upon request, out of the presence of the jury), counsel (or party, if not represented by counsel) shall be given an opportunity to object on the record to any portion of the charge as given, or omission therefrom, stating with particularity the objection and grounds therefor.

21.3 – Treatment of Instructions during Jury Deliberations.  The Court may recall the jury after they have retired and give them additional instructions in order:  (i) to correct or withdraw an erroneous instruction; or (ii) to inform the jury on a point of law which should have been covered in the original instructions.  The provisions of Rule 21.2 above are also applicable to any such additional instructions or other information provided at this stage of the proceeding.

21.4 – Contacts with Jurors Prohibited.  All parties, witnesses, and attorneys shall avoid any extra-judicial contact or communications with a member of a jury venire or panel who has been or may be selected in a case in which that person is involved.  No person may have any extra-judicial contact or communication, either directly or indirectly, with a member of a jury venire or panel which may reasonably have the effect of influencing, or which is intended to influence, the potential juror or sitting juror.  Attorneys for parties shall inform their clients and witnesses of this rule.

No person shall approach a juror, either directly or through any member of his immediate family, in an effort to secure information concerning the juror's background.  No provision of this rule is intended to prohibit communication with a juror after the juror has been dismissed from further service, so long as the communication does not tend to harass, humiliate, or intimidate the juror in any fashion.

21.5 – Presence of Counsel during Jury Deliberation.  The right to be present during the trial of civil cases shall be deemed to be waived by a party or counsel by voluntary absence from the courtroom at a time when it is known that proceedings are being conducted or are about to be conducted.  In such event the proceedings, including the giving of additional instructions to the jury after they have once retired, or receipt of the verdict, may go forward without waiting for the arrival or return of counsel or a party.

RULE 22 – TRIAL DATES AND FINAL PRETRIAL PREPARATION

22.1 – Trial Date.  Trial shall commence on the date established by the Court, normally through revisions to the Case Management Order, or in such other manner as the Court shall deem appropriate.  The Court will consider a request to continue a trial date only if the request is signed by both the party and counsel for the party.

22.2 – Final Pretrial Preparation.  Except in cases deemed by the Court to require different arrangements, no later than twenty (20) days before trial, the parties shall file trial briefs, along with proposed instructions on the issues in jury cases or findings of fact and conclusions of law in non-jury cases.  The parties will also file at this time any  motions in limine or other motions they wish to have considered prior to trial.  The Court may in its discretion schedule a final pretrial conference to deal with such motions or other pretrial matters as deemed appropriate.  Any party, or the Court on its own motion, may request a pretrial hearing or a telephone or video conference to address matters relating to final pretrial preparation or settlement of a case.  This rule is not intended to prevent submission of proposed jury instructions as provided for in Rule 21.1.

RULE 23 – COURT REPORTING CONSIDERATIONS

            23.1 – Request for Real-Time Transcription.  A request for real-time transcription of the proceedings before the Court will be made, to the extent possible, during the Case Management Conference.  The parties will use the appropriate AOC Form to make such a request and shall submit the same to the Court Reporting Coordinator of the Administrative Office of the Courts.  Prior to the proceeding for which transcription is needed, the parties shall confer with the reporter assigned to the case regarding specific needs (e.g., real-time feed, rough ASCII, daily copy) and shall arrange for compensation directly with the reporter.  The parties will provide the reporter with information particular to the case to aid in clarity of transcription, e.g., pleadings, deposition transcripts, glossary of unique terms, etc.

            23.2 – Rough-Draft Transcripts.  A “rough-draft transcript” – that which is displayed simultaneously with proceedings occurring before the Court and/or provided by e-mail or ASCII disk prior to certification – may be referred to or quoted from during a proceeding, provided, however, any dispute concerning the accuracy of the transcription of a rough draft transcript will be resolved by the Court in its discretion after consultation with the reporter.

            23.3 – Publication of Transcripts.  Transcripts of proceedings before the Business Court shall be published on the Court’s Web Site in the sole discretion of the Business Court Judge.  See Rule 24.  Access to such transcripts via the Web Site, however, shall only be made available to those counsel, pro se litigants or members of the public with authorization codes issued by the Court after payment of the reporter’s transcription fee or under such other conditions as are set by the Court.

RULE 24 – WEB SITE AND PUBLICATION

            24.1 – Web Site.  The Business Court shall maintain a site on the World Wide Web for ready access to members of the bar and to the public generally.  The Web Site shall be located at the uniform resource locator “www.ncbusinesscourt.net.”  The Web Site will store for ready retrieval basic information about the Business Court, including but not limited to these Rules and the procedure for Complex Business Case designation.  In addition, the Web Site will store, in the sole discretion of the Business Court Judge:

(a)            the Court’s docket;

(b)            pleadings filed with the Court;

(c)            motions filed with the Court;

(d)            briefs filed with the Court;

(e)            the opinions of the Court; and

(f)            rough-draft and/or official transcripts of proceedings before the Court.

            24.2 – Citation to Business Court Opinions.  Citation to the opinions of the Business Court shall be to the year of the opinion, followed by “NCBC,” followed by the opinion number, e.g., “1999 NCBC 1.”  Pinpoint notations to Business Court opinions shall be made to the numbered paragraph in which the cited material appears, e.g., “1999 NCBC 1 at 1.”

RULE 25 – APPELLATE RECORD CONSIDERATIONS

            25.1 – Filing of Transcripts.  Certified original transcripts and other record items shall be filed in accordance with Rule 7 of the North Carolina Rules of Appellate Procedure and shall be subject to any further requirement that the appellate court deems appropriate.  Parties are encouraged to assist the Court in transmitting original transcripts and other records electronically in addition to the format required by Rule 7 of the North Carolina Rules of Appellate Procedure to the end that the entire appellate record may be transmitted to the appeals court as efficiently and expeditiously as possible.

            25.2 – Signatures on Appellate Materials.  Electronically filed transcripts shall contain such means of signature as may be specified by the appellate courts.

 


EXHIBIT A

 

NORTH CAROLINA                                                   IN THE GENERAL COURT OF JUSTICE

            SUPERIOR COURT DIVISION

GUILFORD COUNTY                        99 CVS 999999

 

 

JOHN DOE,                                                    )

                                                                        )

                                    Plaintiff,                        )

                                                                        )

v.                                                                     )            CASE MANAGEMENT ORDER

                                                                        )

FICTIONAL DEFENDANT, L.L.C.,                       )

                                                            )          

                                                                        )

                                    Defendant.                   )

                                   

 

THIS MATTER is before the Court pursuant to defendant's motion for a case management conference.  This case has been designated as an exceptional case pursuant to Rule 2.1 of the General Rules of Practice.  The parties have conferred in advance and have agreed that the Court should enter an Order covering scheduling and case management issues in order to facilitate the fair and efficient disposition of this action.

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that:

I.  SCOPE OF ORDER

A.            General Scope of Order

This order establishes certain procedures to be used and sets deadlines for various matters likely to arise through trial. It shall remain in effect until rescinded by the Court or superseded by subsequent orders. The North Carolina Rules of Civil Procedure, the General Rules of Practice for the Superior and District Courts, and the Local Rules for the North Carolina Business Court shall govern all matters not expressly covered by this Order.

B.            Application of Order

This Order, as well as any subsequent case management orders entered by the Court, shall bind all parties to this action and all parties added hereafter unless the Court orders to the contrary.

C.            Modification of this Order

The Court may amend or supplement this Order as deemed appropriate by the Court upon the motion of any party or by the Court.

 

II.            COMMUNICATION WITH THE COURT AND AMONG THE PARTIES

 

A.            The parties are represented locally by the following: (hereinafter "Liaison

 

Counsel"):

 

1. __________________, of _________________, PLLC, representing John Doe;

 

2. __________________, of _________________, representing Fictional Defendants, L.L.C.

 

B.            The Court will communicate with counsel and counsel shall have the responsibility for notifying all parties that it represents of all communications from the Court.

C.            All communications with the Court, including a copy of any paper, pleading, order or proposed order, and all exhibits, attachments or enclosures thereto filed in this action must also be sent to the Judge at the following address:

The Honorable Ben F. Tennille

Special Superior Court Judge for Complex Business Cases

200 South Elm Street, Suite 200

Greensboro, NC 27401

Telephone:  336-334-5252

Telecopier:  336-334-5162

 

Any communication with this Court may also be filed electronically pursuant to the General Rules of Practice and Procedure for the North Carolina Business Court.   Any communication filed electronically automatically will be served on all parties equipped to receive electronic mail.

D.            A copy of any paper, pleading, order or proposed order (including all attachments or enclosures, or any other written or electronic communication with the Court, whether filed or nor filed) generated by counsel for any party must be delivered, e‑mailed or telecopied to counsel for the other party or parties at least five (5) business days before any scheduled hearing on a matter to which such documents relate.

III.            JURISDICTION, VENUE AND AMENDMENTS TO PLEADINGS

 

A.            This Court has subject matter jurisdiction over the disputes raised in this action.

B.            All of the defendants have been properly served with the summons and complaint, and the Court has personal jurisdiction over each of the parties.

C.            Venue is proper in this action.

IV.            ISSUES, DISCOVERY, MOTIONS AND TRIAL

A.            Merits Discovery

At a hearing on ______________, the Court heard discussion and arguments of counsel regarding discovery in this case.  Having considered the record and arguments of counsel, the Court hereby incorporates into this Case Management Order the following provisions regarding discovery on the merits:

The parties shall have until _______________ to conduct fact discovery on the merits issues. There will be a subsequent sixty (60) day period for discovery of expert witnesses, if necessary.  The additional sixty (60) day period is reserved solely for discovery of expert witnesses, and shall not apply if expert discovery is unnecessary.  The parties are instructed to conduct fact discovery first, then move on to expert witness discovery.  It is further ordered that the setting of the _______________ deadline will not limit any party from filing summary judgment motions as to merits issues during the period, but any such motions should be very narrowly drawn so as to address only issues on which fact discovery has been completed.  If there are still motions pending after the discovery period, the Court will set a briefing schedule at that time.

B.            The following further limitations and guidelines are hereby placed on discovery:

1.            Depositions shall be conducted in accordance with the following guidelines:

(a) All parties or employees will be made available for deposition on five days’ notice to counsel.

(b) Depositions shall be taken subject to the usual and customary stipulations applicable to depositions in this jurisdiction, a copy of which are attached hereto as Exhibit A.

(c) Counsel shall not direct or request that a witness not answer a question, unless counsel has objected to the question on the ground that the answer is protected by privilege or a limitation on evidence directed by the Court.

(d) Counsel shall not make objections or statements which might suggest an answer to a witness. Counsel's statements when making objections should be succinct, stating the basis of the objection and nothing more.

(e) Counsel and their witness‑clients shall not engage in private, off­ the‑record conferences while the deposition is proceeding in session, except for the purpose of deciding whether to assert a privilege.

(f) Deposing counsel shall provide to the witness's counsel a copy of all documents shown to the witness during the deposition. The copies shall be provided either before the deposition begins or contemporaneously with the showing of each document to the witness. The witness and the witness's counsel do not have the right to discuss documents privately before the witness answers questions about them.

2.           The parties may conduct only that discovery specifically provided for in this order.

3.           No extensions of time shall be granted without written consent of the opposing party or by Order of the Court.

C.            Protective order

The parties shall submit to the Court any proposed protective orders by ___________.

D.            Choice of Law

The law of the State of shall govern all substantive and procedural issues in this case.

E.            Any dispositive motions relating to the defendant's liability must be filed no later than ______________.

 

SO ORDERED, this the ___ day of __________.

 

 

___________________________

The Honorable Ben F. Tennille

Special Superior Court Judge

For Complex Business Cases