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NORTH CAROLINADavid M. DukeShannon S. FrankelDavid A. Senter, Jr.YOUNG MOORE AND HENDERSON, P.A.3101 Glenwood Avenue, Suite 200Raleigh, NC 27612Phone: (919) 782-6860www.youngmoorelaw.comdmd@youngmoorelaw.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Generally, yes. North Carolina courts consistently hold that documents created inanticipation of litigation are considered work product or trial preparation materials andare, therefore, protected. Documents prepared in anticipation of litigation include notonly materials prepared after the other party has secured an attorney, but also thoseprepared under circumstances in which a reasonable person might anticipate litigation.Materials prepared in the ordinary course of business, however, are generally notprotected as they are not prepared under circumstances in which a reasonable personmight anticipate a possibility of litigation. See Fulmore v. Howell, 189 N.C. App. 93,101, 657 S.E.2d 437, 443 (2008); Willis v. Duke Power, 291 N.C. 19, 35, 229 S.E.2d191, 201 (1976). However, an adverse party may still discover these materials undercertain circumstances. N.C. R. Civ. P. 26(b)(3) provides that “a party may obtaindiscovery of documents and tangible things otherwise discoverable . . . and prepared inanticipation of litigation or for trial by or for another party . . . upon a showing that theparty seeking discovery has substantial need of the materials in the preparation of thecase and that the party is unable without undue hardship to obtain the substantialequivalent of the materials by other means. Even when the required showings havebeen made, however, the court still may not permit “disclosure of the mentalimpressions, conclusions, opinions, or legal theories” of an attorney or otherrepresentative concerning the subject litigation.2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?With regard to a party’s own statement, Rule 26(b)(3) provides that “[a] party may obtainwithout the required showing [i.e. substantial need, undue hardship] a statementconcerning the action or its subject matter previously made by that party.” On the otherhand, a party seeking the statement of a witness or other related individual will besubject to the work product provisions of Rule 26(b)(3), discussed above.