This Newsletter focuses on decisions of the North Carolina Business Court . It is rare for me to write about a decision from the Courts of Appeal of North Carolina
But it is not very often that the North Carolina Supreme Court weighs in on a discovery matter. Its decision in Sessoms v, Toyota Motor Sales U.S.A., Inc., delivered just three weeks ago, on August 14. 2026, is a bookend to its last pure discovery decision 50 years ago in Willis v. Duke Power Co., 291 N.C. 19, 34 (1976).
I can summarize the central holding of Sessoms in less than a paragraph: if you are confronted with an unreasonably broad 30(b)(6) deposition notice, to which you have objected in a timely way per the Rules of Civil Procedure, you do not need to make a Motion for a Protective Order in order to preserve your objections. The burden falls to the deposition seeking party to pursue a Motion to Compel.
While that conclusion seems reasonably straightforward, it divided the Supreme Court three ways. There was a majority opinion handed down by Justice Earls, a concurring opinion delivered by Justice Dietz in which Justice Newby joined, and a dissenting opinion written by Justice Riggs. Each deserves mention.
What is the case about? It is a wrongful death action filed by Plaintiff Sessoms, the Administratrix of her son Matthew’s Estate. Matthew was burnt to death in a horrible way following an accident while driving his Toyota Scion. The focus of the lawsuit is on the design of the firewall in the Scion. Automobile manufacturer Subaru is a co-Defendant as it was a joint developer of the Scion.
The First Amended Complaint in the case was filed in January 2022 and has been stalled by discovery disputes from the beginning. A Superior Court Judge entered an Order granting a Motion to Compel (the “Discovery Order”) in August 2023and an Order granting sanctions against defendant Toyota (the “Sanctions Order”) in December 2023. The Sanctions Order was vacated by the North Carolina Court of Appeals in December 2024 following a grant of a Petition for Certiorari
The Supreme Court’s Observations on the Rule30(b)(6) Deposition
the Supreme Court set out the following laundry list of requirements regarding a 30(b)(6) deposition:
“A Rule 30(b)(6) deposition is a distinctive type of deposition.”
“Unlike an ordinary deposition, where a party seeking discovery takes an oral examination of a specified person. . . , a deposition under Rule 30(b)(6) enables a party to depose a business, corporation, or organization itself.
“This provision “articulates particular procedures that apply.”
“The deposing party notices the deposition as against the organization by name and identifies “with reasonable particularity the matters on which examination is requested.”
“The deponent organization picks a witness or witnesses to testify on its behalf. ‘The persons so designated shall testify as to matters known or reasonably available to the organization.’”
“By its plain language, Rule 30(b)(6) imposes ‘concomitant responsibilit[ies]’ on both the deposing party and the deponent organization.”
“The deposing party must clearly identify the topics for the deposition and the organization must produce a witness “who can speak knowingly as to the topic” even if that person must be “educate[d]” so they can do so).”
“The noticing party must be reasonably clear about the topics to be covered, and the deponent organization must adequately prepare its designees to speak to the identified topics.”
Op. at 22-23 (emphasis added).
the Supreme Court noted that the obligation to identify with "reasonable particularity" the topics on which the deponent is to be deposed and the entity to be deposed’s obligation to adequately adequately prepare its designees to testify as to the identified topics “thus implies parties may have to confer after receiving the notice and prior to the taking of the deposition to be aligned on the deposition’s focus and to meet their mutual obligations.” Op. at 23.
Rules 30(b)(6) and 30(b)(5) of the North Carolina Rules of Civil Procedure
The last vestige of the Discovery Order entered by the trial judge before the Supreme Court concerned NCRCP 30(b)(5) and 30(b)(6). You are undoubtedly familiar with Rule 30(b)(6). You are probably less familiar with Rule 30(b)(5), which permits the deposition seeker to accompany his Notice of a 30(b)(6) Deposition with a Rule 34 document request. The standard thirty day response time granted by Rule 34 does not apply, however. Rule30(b)(5) also says that the request “must be served at least 15 days earlier than would otherwise be required by Rule 30(b)(1) (15 days prior to the taking of the deposition), and any objections to such a request must be served at least seven days prior to the taking of the deposition.”
Plaintiff Sessoms noticed her 30(b)(6) deposition of Defendant Toyota on April 18, 2023. She included document requests. In her document request she requested that the documents identified be produced 14 days before the deposition. Defendant Toyota responded in a timely way per the dictates of Rule 30(b)(5) by objecting to the deposition topics and the accompanying request for documents seven days prior to the taking of the deposition.
Mrs. Sessoms and her counsel proceeded to take the deposition notwithstanding the objections raised by Toyota. She then filed a second motion to compel in July 2023 arguing that Toyota had not timely responded to the Rule 30(b)(5) request’s instruction that it respond 14 days before the deposition and had thereby waived its objections. She also objected to Toyota's attempt to limit the scope of the deposition topics. She asserted that those objections have been waived since Toyota had not obtained a protective order prior to the deposition. Op. at 7.
Plaintiff Sessoms was wildly successful on her Second Motion to Compel, which yielded the Sanctions Order. On December 1, 2023, presiding Superior Court Judge James Gregory Bell (a law school classmate of whom I have no memory) entered a 13 page e Order granting the Motion to Compel and the accompanying Motion for Sanctions. The sanctions entered by Judge Bell were in a word, nuclear. He ruled that certain facts should be designated as established against Defendant Toyota, including:
that the engine department and firewall and side structure of the car in question had been "defectively designed and manufactured”
that Toyota had actual and/or constructive knowledge that the engine compartment firewall and side structure had been "defectively designed and manufactured at the time of sale.”
That at the time of manufacture there was a "reasonable alternative design” to those design elements which could have been reasonably adopted.
December 1 Order at 10-11.
In addition, Judge Bell ruled that multiple paragraphs of Plaintiff's Amended Complaint should be deemed as established against Defendant Toyota
I am sure that Mrs. Sessoms walked away from her attorney’s explanation of that Order believing that the case was nearly over and that Toyota would have no choice but to capitulate.
But Toyota appealed that devastating Sanctions Order on a Petition for Certiorari and it was vacated by the Court of Appeals. The COA affirmed the trial court's ruling that Toyota had waived its objections to the deposition topics and the request for production of documents by failing to respond in a timely manner.
In its ruling, the Supreme Court held that this part of the Court of Appeals decision “was legal error.” Op. at 16.
Opposing Counsel Cannot Unilaterally Impose a Shorter Deadline on its Adversary Than One Dictated by the Rules of Civil Procedure
There was no dispute that Toyota had served its objections to the 30(b)(6) notice and the document request at least seven days prior to the deposition. It had therefore met the time constraint imposed by the Rules of Civil Procedure. The Supreme Court held that:
one party may not unilaterally impose tighter deadlines on their adverse party than those prescribed by the Rules and expose the other party to sanctions on that basis.
Op. at 16. Parties may negotiate shorter deadlines and mutually agree to them, but that had not happened in the case before the Court.
Why Wasn't a Protective Order Necessary?
The Plaintiff’s argument on why Toyota was required to seek a Protective Order was hung on the shaky hook of a provision in NCRCP 37(d) which says that “a party must apply for a protective order where a party “fail[s] . . . to appear before the person who is to take the deposition, after being served with a proper notice.”
The Supreme Court said that provision was limited to the situation where a party totally fails to comply with the deposition notice and refuses to appear at all. That was not the situation here, where Toyota had a designee appear at the deposition, but had disputed the appropriate scope of the topics on which that designee was to testify.
Nothing in the Court’s Opinion bars the Party Providing the Designee from Seeking a Protective Order
Don't think that this Opinion discourages a party responding to a 30(b)(6) notice from seeking a Protective Order.
The court said exactly the opposite:
Our holding here should not be construed as limiting any party’s ability to bring disputes over Rule 30(b)(6) deposition topics to the trial court’s attention. A motion for a protective order under Rule 26(c) remains another mechanism to put a discovery dispute to a trial court.
Op. at 26.
What the Concurring Opinion Had to Say
in his concurring Opinion, Justice Dietz (joined by Chief Justice Newby) laid the blame for what he referred to as a "comedy of errors” resulting in the Discovery Order at the feet of the parties’ counsel.
He said that “the genesis of these errors was not the trial court’s order; it was the breadth of plaintiff’s discovery and the parties’ failure to adequately meet and confer on its scope as the rule envisions.” Op. at 33 (emphasis added).
He chastised all counsel during oral argument for being unable to specify about when they had met and conferred and what steps they had taken to work out the pending objections. Op. at 34.
He said that this "failure is how this case went adrift and correcting it will steer the case back on course.” According to him, “the next step should be for the parties to genuinely meet and confer and work out a plan that resolves these disputes.. . . If they cannot do so, they need to schedule a discovery conference with the trial court. Op. at 34.
He cautioned that the parties should not go back to the trial court seeking another ruling on the pending motions. He said that would be "skipping ahead.” Op. at 34.
What About the Dissent? A Warning to Lawyers Seeking Certiorari from the Court of Appeals
Justice Riggs took an entirely different approach in her dissenting Opinion. She did not deal at all with the compliance or noncompliance with Rule 30. She did not target either side's counsel for creating a "comedy of errors. ” Instead, she blamed the Court of Appeals for granting certiorari over the Discovery Order in the first place. In other words, she took the position that the case should never have been before the Court of Appeals at all. The Sanctions Order had been immediately appealable because it affected a substantial right. Op. at 35 & n.2. The Diiscovery Order, however, was an interlocutory order which was not immediately appealable, Id.
She said that the Court of Appeals had not taken into account the standard set out by the North Carolina Supreme Court for allowing certiorari. It did that three years ago in the case of Cryan v. National Council of Young Men’s Christian Associations of United States, 384 N.C. 569 (2023).
The Cryan decision dictates a two-part test for determining whether the Court of Appeals should grant a writ of certiorari. The court must assess “(1) the likelihood that the case has merit or that error was committed below and (2) whether there are extraordinary circumstances that justify issuing the writ.” Op. at 37. Justice Riggs recognized that error had been committed at the trial court level but blithely observed that “not all errors need to be corrected, particularly at an interlocutory stage.” Op. at 38.
She focused more heavily on the impact of allowing this interlocutory appeal. She noted that the general rule is that "interlocutory orders are not immediately appealable” and that it existed for a good reason.Op. at 39,
Interlocutory appeals delay the resolution of a case. The North Carolina Supreme Court has said that:
There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders. The rules regulating appeals from the Superior Court to the Supreme Court are designed to forestall the useless delay inseparable from unlimited fragmentary appeals, and to enable courts to perform their real function, i.e., to administer ‘right and justice . . . without sale, denial, or delay.’ N.C.Const. Art. I, Sec. 35.
Op. at 39(emphasis added)(citation omitted).
She recognized that” some litigants might prefer to have more case law from this Court addressing discovery matters,” but that the Supreme Court “should not provide such guidance in a case where the parties cannot even agree on a Rule 26(f) discovery order.”Op. at 40.
She called out the majority opinion for ”signaling to future litigants that our courts will entertain more fragmented litigation, this Court’s decision today (with the tolerance it signals for piecemeal discovery appeals) throws open wide the doors for more delays in the administration of justice, made in both good and bad faith, and the other harms associated with litigating interlocutory appeals. Dilatory tactics will become an even more pervasive norm than they currently are, reminding us of the truth in the adage that justice delayed is justice denied.” Op. at 41(emphasis added).
Although Justice Riggs complemented the majority opinion on not engaging with the validity of Toyota's arguments regarding its objections to the discovery (Op. at 42-43) and refraining from “such unhelpful commentary,” (Op. at 47 & n.1) she went on to provide exactly that. She suggested that Toyota had waived some of its objections by the way in which its deposition designee respond to certain questions and that it had failed to comply with the trial court's Discovery Order or the Rules of Civil Procedure.
One More Thing
I apologize for the length of this post, but there is one more thing I need to say. Another issue resolved by the appellate courts concerned Toyota's production of documents written in the Japanese language. The Plaintiff sought to compel Toyota to translate those documents into English, a request which the Discovery Order granted.
The Opinion from the Court of Appeals reversed that ruling and the Supreme Court declined to review that.
The per curiam Opinion from the COA said the following:
Rule 26 of our Rules of Civil Procedure allow a party to seek documents in the possession of the adverse party; it does not generally require the adverse party to pay for any said documents to be translated into the English language. See N.C. R. Civ. P. 26. In other words, there is no duty to produce documents that do not exist.
COA Op. at 6. It said that it was “persuaded by what we perceive to be the greater weight of authority in the United States that a party producing documents is not required to create new documents consisting of English translations of documents already provided.” Id.
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