Be Careful What You Ask For: Costs of Issuing Broad Subpoena May Significantly Outweigh Benefits


Rule 45 of the North Carolina Rules of Civil Procedure allows parties to litigation to subpoena documents and electronically stored information from nonparties. In a recent opinion, Kelley v. Agnoli, COA09-179 (July 6, 2010), the North Carolina Court of Appeals made clear that parties issuing subpoenas to nonparties may be required to pay significant sums for the time and effort nonparties undertake to comply with overly broad subpoenas.

Underlying Facts

In Kelley, the plaintiff Thomas Michael Kelley and defendant Francesca Agnoli, who were engaged to be married, had entered into an “engagement agreement” which obligated Mr. Kelley to support Ms. Agnoli for the rest of her life irrespective of whether they ever married. Eventually, however, Mr. Kelley came to suspect that Ms. Agnoli never intended to marry him, but had instead merely manipulated him for personal gain. He filed suit against her, asserting fraud-related claims. He served a subpoena on the law firm Davis & Harwell, P.A., who had represented Ms. Agnoli in preparing the engagement agreement and was representing her in the litigation commenced by Mr. Kelley. Among other things, the subpoena sought all documents related to agreements or draft agreements between Mr. Kelley and any third party, “including but not limited to all notes, correspondence, memoranda, emails, drafts or final agreements, and documents concerning conversations with anyone regarding these matters.”

Davis & Harwell objected to the subpoena on the grounds of relevance, attorney-client privilege, work product, and undue burden and expense....

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