By Order dated June 15, 2022, the Supreme Court of North Carolina has approved amendments to the North Carolina Business Court Rules. Effective July 1, 2022, the Amended Rules will apply to all cases before the Business Court pending on or after that date. The Amended Rules do not alter or modify case management orders in existing Business Court cases in the event those orders conflict with the Amended Rules.
The Amendment affects Rules 3, 5, 6, 7, 12, and 15 and Appendix 3. Rule 15 and Appendix 3 have been deleted in light of the passage of the new North Carolina Commercial Receivership Act, N.C. Gen. Stat. §§ 1-507.20, et seq. The other rules were modified in whole or in part. Those litigating in the Business Court should review both the Order and the Rules to make note of the amendments, but the following summarizes some key changes.
Rule 3.5. This Rule now incorporates the Court’s approved formatting for filed documents, Specifically,
Except for exhibits and other supporting materials, documents filed with the Court must be letter size (8½ x 11″), double-spaced, formatted with a margin of at least one inch on each side, and prepared using a proportionally spaced font with serifs that is no smaller than 12-point and no larger than 14-point in size. The Court prefers Century Schoolbook font. Except for proposed orders and proposed jury instructions, each document filed with the Court must be submitted as a PDF file.BCR 3.5, eff. July 1, 2022
The Business Court’s font preference is consistent with our Appellate Courts’ preferences as well.
Rule 5. The sealing procedure(s) in North Carolina’s state and federal courts has been a frequent topic of discussion in recent years. This is especially true in the Business Court, which like federal courts, utilizes electronic filing and maintains online public access for full case dockets. The new Rule 5 expressly notes the “open courts” policy of the Business Court:
A person who appears before the Court should strive to file documents that are open to public inspection and should file a motion to seal a document only if necessary. A person who seeks to have a document sealed bears the burden of establishing the need for sealing the document. Reference to a stipulation or protective order that allows a party to designate a document as confidential is not sufficient to establish that the document should be sealed.BCR 5.1(c), eff. July 1, 2022
Other changes to Rule 5 include:
- The sealing procedures now do not distinguish between motions to seal filed in cases with or motions to seal filed in cases without protective orders, but Rule 5.3 does clarify how parties are to treat the Rule 5.2 sealing procedures vis-à-vis existing protective orders.
- Rule 5.1(d) makes it more explicit that the sealing procedures do not apply to documents that are closed to public inspection by operation of statute or other legal authority, nor does the Rule affect a person’s responsibility to omit or redact private information from court documents pursuant to statute or other legal authority.
- Rule 5.2(c) clarifies that anyone (including nonparties who have an interest in the confidentiality of a document) may file a brief in support of or in opposition to a motion to seal within twenty (20) days, following the same rules as other briefs pursuant to Business Court Rule 7.
- Rule 5.2(a), (d), and (f) clarify the procedure for filing documents “provisionally under seal” and public versions of the same, with redactions. Notably, parties now have ten (10) days (as opposed to the five (5) days permitted under the old Rules) to file a public version of any document filed provisionally under seal.
Rule 6. There is a slight amendment to Rule 6.2. The Rule now notes that, in the Court’s discretion, a hearing may be conducted by audio and video transmission in accordance with N.C. Gen. Stat. § 7A-49.6. Rule 6.4 was also amended to require that any written communication with the Court must copy all pro se parties and all counsel of record for each represented party.
Rule 7. This Rule covers the filing and form for motions and briefs filed with the Court. As Rule 3.5 was amended to address the Court’s formatting preferences (as noted above), a sentence was removed from Rule 7.2 that previously addressed those formatting preferences. A similar edit was made to Rule 7.8. Rule 7.7 now makes explicit that, with respect to reply briefs, the Court has discretion to decline consideration of any issues or arguments raised by the moving party for the first time in the reply brief. Rule 7.10, which addresses those motions that can be filed without supporting briefs, was amended to add two new categories: motions to withdraw as counsel and motions for a bill of costs.
Rule 12. There was one slight change to this rule, which covers pretrial and trial procedures. Rule 12.7 now omits the requirement that pretrial hearings must be attended “in person.”
As noted above, the Amended Rules do not alter or modify case management orders in existing Business Court cases in the event those orders conflict with the Amended Rules.