Work Product Doctrine North Carolina
The Supreme Court of North Carolina has held that, in deciding whether the attorney-client privilege attaches to a particular communication, the trial court must consider whether:
"(1) the relation of attorney and client existed at the time the communication was made;
(2) the communication was made in confidence;
(3) the communication relates to a matter about which the attorney is being professionally consulted;
(4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated;
(5) the client has not waived the privilege."
In Re Miller, 357 N.C. at 335, 584 S.E.2d at 786 (quoting State v. McIntosh, 336 N.C. 517, 523-24, 444 S.E.2d 438, 442 (1994)).
"If any one of these five elements is not present in any portion of an attorney-client communication, that portion of the communication is not privileged." Id.
The party who claims the privilege bears the burden of demonstrating that the communication at issue meets all the requirements of the privilege. Id. at 336, 584 S.E.2d at 787.
The work product doctrine prohibits an adverse party from compelling "the discovery of documents and other tangible things that are 'prepared in anticipation of litigation' unless the party has a substantial need for those materials and cannot 'without undue hardship . . . obtain the substantial equivalent of the materials by other means.'" Long v. Joyner, 155 N.C. App. 129, 136, 574 S.E.2d 171, 176 (2002) (quoting N.C. Gen. Stat. 1A-1, Rule 26(b)(3)).
Pursuant to the rules of discovery, N.C. Gen. Stat. 1A-1, Rule 26(b)(3), "documents prepared in anticipation of litigation are afforded a qualified immunity from discovery by the party seeking those documents." Cook v. Wake County Hospital System, 125 N.C. App. 618, 623, 482 S.E.2d 546, 550 (1997) (holding that an accident report prepared by a hospital regarding a doctor's slip and fall did not constitute work product).