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Scottie Lee covers “New Amendments to the North Carolina Business Court Rules”

Jul 2, 2019 | Greensboro, NC
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Scottie Forbes Lee

Last month, the Supreme Court of North Carolina issued an order amending the North Carolina Business Court Rules.  The new amendments took effect yesterday, July 1.  A clean—and newly formatted—version of the rules can be accessed here.

In 2016, the Business Court amended its rules for the first time since 2006.  Those amendments, which took effect in January 2017, were substantial.  While not nearly as substantial as the 2017 changes, the latest amendments include important changes.

1.            Motions to seal

The list of motions in BCR 7.10 that do not require briefs has been expanded to include motions to seal confidential information. 

The amendments carve out an exception to that rule:  if the party who files the motion for leave to file under seal is not the designating party (that is, the party who wants the material filed under seal), then the designating party may file a supplemental brief that supports the sealing motion.  The designating party, as the party seeking to keep the material under seal, will have the burden of establishing that the material should be filed under seal. 

2.            Amicus briefs

The rules now include a procedure for filing amicus briefs.  Here are a few key points about BCR 7.14:

  • To file a brief, amicus curiae must first seek leave of court.  Similar to the requirements in Appellate Rule 28(i), a motion for leave under BCR 7.14 should identify amicus curiae’s interest, the issues that the amicus brief will address, amicus curiae’s position on those issues, and the reasons that an amicus brief would aid the court. 
  • The standard word count under BCR 7.8 does not apply to amicus briefs.  Instead, amicus briefs are limited to 3,750 words.
  • A party must obtain leave to respond to an amicus brief.
  • Amicus curiae must seek leave of court to participate in oral argument.  Unlike Appellate Rule 28(i)(7), however, BCR 7.14(g) does not require amicus curiae to show extraordinary cause.

3.            Junior attorneys

Junior attorneys, the court wants to hear from you.  Indeed, newly added BCR 6.5 welcomes junior attorneys to participate at oral argument.  The rule’s purpose is to “promote the professional development of junior attorneys.”  With the addition of BCR 6.5, the Business Court joins a growing trend of courts that recognize the importance of speaking opportunities for young lawyers.

4.            Procedure following remand from federal court

The amendments clarify how to proceed in the Business Court when a case is remanded from federal court.  This procedure applies only to an action “governed by these rules”—that is, a case that has been designated to the Business Court and removed to federal court.  Upon remand from federal court, the parties must file a status report in the Business Court within fourteen days of the remand order.

5.            Extensions of time

If you’re like most Business Court litigants, you’ve been grateful at some point for BCR 4.1(c)’s automatic grace period following a motion for extension of time.  That rule states that the filing of a motion to extend time automatically extends the time for filing or performing the act for which the extension is sought until the earlier of (a) the expiration of the extension requested, or (b) a ruling by the court. 

The amendments make clear, however, that this grace period does not apply to deadlines set by court order—including deadlines for completing discovery.