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Playing by the (New) Rules in the North Carolina Business Court: Part 2

The North Carolina Business Court’s new Rules went into effect January 1, 2017 and apply to every civil action designated as a mandatory complex business case or assigned to a Business Court judge, regardless of whether it was filed prior to the Rules’ effective date. They are meant to supplement, rather than supplant, the Rules of Civil Procedure and General Rules of Practice, but if there is a conflict with local rules or standing orders from the county of venue, the Business Court’s Rules will govern.

 

Part 1 of this topic addressed the changes in Notices of Designation, filing, electronic filing technology problems, motions practice, and emergency motions. For more information about those issues, please see Part 1.

 

 

Case Management Requirements

 

Rule 9 seeks to simplify the requirements of former Rule 17.1(a) and states, “the case management process…should be applied in a flexible, case-specific fashion.” The Rules also encourage novel and creative ideas if they efficiently resolve the case. If the parties need a different schedule for the case management report and case management meeting, Rule 9.1(b) permits them to ask the Court to consider allowing a different schedule.

 

In furtherance of that objective, Rule 9.1(b) allows more time for case management meetings. Now, the meeting must occur no later than sixty (60) days after the designation of an action as a mandatory complex business case or assignment to a Business Court judge. This allows attorneys to familiarize themselves with the case and aligned parties, if any.  It also makes service of multiple parties somewhat easier.

 

After the case management meeting, the court now allows thirty (30) days to conduct a second meeting on discovery issues should one be necessary. In permitting time for additional discovery issues, the Court does not expect the parties to put aside discovery issues until a second meeting (see Rule 10.3). They are still required to submit a case management report stating whether discovery issues have been resolved and, if not, what topics remain to be discussed at the second meeting. They must also identify when the meeting will occur. Within 10 days of the second discovery meeting, parties must file a supplement to the Case Management Report.

 

The Rules also give the Court discretion as to when and whether to convene a Case Management Conference as well as whether more than one is necessary. This allows the Court to wait until parties complete discovery discussions or hold the conference earlier in the matter. Alternatively, they could also elect not to have a Case Management Conference at all.

 

Appendix 2 of the new Rules provides a template case management report listing the topics parties need to resolve. However, in the spirit of the increased flexibility of Rule 9, parties retain a good deal of discretion.

 

 

Pretrial Preparation Process

 

The revised rules endeavor to provide more guidance regarding the pretrial process while recognizing the circumstances of each case play a role in deadlines and requirements and can be modified by the Court where appropriate. Rule 12.3 provides a chart showing the standard pretrial activity with presumptive deadlines staggered over the course of the pretrial period.

 

For the pretrial order, attorneys can refer to Appendix 5, which contains the Business Court’s Proposed Pretrial Order Template. The order covers stipulations, lists of trial exhibits, proposed issues for trial, trial witnesses, outstanding motions, issues to be tried, technology and who is to provide it, and other case-specific issues or accommodations needed for trial.

 

For motions in limine, the revised rules provide timing and briefing requirements, particularly with a new, condensed word limit of 3,750 words. The presumptive deadline for motions in limine is well in advance of the final pretrial conference, so the Court will rule on them potentially at the pretrial conference, rather than on the day of trial.

 

Rule 12.10 provides requirements for the submission of proposed jury instructions. The requirements as to the format of the submission enable the Court to more efficiently craft the final jury instructions.

 

Finally, Rule 12.12 gives parties the discretion to determine whether to submit trial briefs. If they choose to do so, the Rule explicitly states there is no Rule 7 limit on the number of words.

 

If you have questions about the new Rules, it is wise to consult an attorney who can guide you through the process. Please call, e-mail, or visit us as www.lindleylawoffice.com.

 

 

Coming soon: Part 3 which will discuss discovery motions, discovery processes, and protective orders.

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