The Discovery Process in North Carolina Child Custody Cases

In civil cases, such as child custody proceedings, either party can serve discovery requests on the other party. Discovery is the term used to describe the process of exchanging documents and information. It can include various methods, including interrogatories, requests for production of documents, requests for admission, and depositions.

Parties in child custody cases can use discovery to obtain information relevant to the case, but there are limitations.

Privileged Information and Discoverable Material

In Heijman v. Heijman, a case decided by the North Carolina Court of Appeals, the central issue was discovery served upon Mother by Father. Both parents filed motions to modify their custody agreement, and in November 2022 the trial court entered an Amended Order to Compel regarding discovery requests served upon Mother.

Mother objected to responding to discovery, and she appealed the trial court’s interlocutory order compelling her to provide the requested information. Generally, interlocutory orders are not appealable because they are not considered permanent or final. Exceptions are made when the order involves a substantial right. The Court of Appeals in the Heijman case agreed to review the lower court’s decision because Mother asserted that the Order involved documents that could contain attorney-client privileged, FERPA-protected, and work product doctrine information.

North Carolina’s discovery rules impose limits on discoverable information; one such limitation is privileged information, like the material that Mother alleged might be included in the documents requested by Father. However, the trial court included a requirement that Mother’s documents first be examined by an independent, court-appointed forensic expert. This safeguard would protect her potentially privileged information from being released to Father and allow her to conduct a privilege review.

Electronically Stored Information in North Carolina Custody Cases

The state’s discovery rules also include details regarding electronically stored information, which is described as including metadata that is reasonably accessible and enables the requesting party to access details like author, recipients, date sent, and date received. Mother in Heijman argued that her electronically stored information was not reasonably calculated to lead to discoverable material, and the search criteria included in Father’s discovery requests were overly broad. However, the appellate court disagreed.

A third issue in this case was Mother’s objection regarding the cost associated with a privilege review. Because she felt the scope of the electronically stored information was excessive, she argued that she would not be able to perform a meaningful privilege review due to her limited resources. The Court of Appeals felt that the forensic expert would limit the search to the terms listed in the Order and in Father’s discovery requests, thus making Mother’s privilege review much more manageable. The appellate court disagreed with each of Mother’s arguments and affirmed the trial court’s ruling in this case.