COA: Order Returning Inadvertently Disclosed Discovery Documents Does Not Affect A Substantial Right

Today the COA held that an appeal from an order returning inadvertently disclosed discovery documents that contained only conclusory unsupported opinions by a professor was interlocutory and should be dismissed. The case is Harbour Point Homeowners' Association v. DJF Enterprises.

Harbour Point Homeowners' Association sued a group of defendants who each had some role in the development or construction of the Harbour Point townhome development. The HOA alleged that there were “substantial and numerous latent defects” in the buildings.

The HOA appealed the trial court's order returning two pages of a four page memo written by a professor of wood science to Defendant Georgia-Pacific Corporation that was inadvertently provided to Plaintiff during discovery. The memo contained the professor's opinions on a building material used in the development of Harbour Point.

Although the appeal was interlocutory, the HOA argued that it should be allowed because the issue affected a substantial right. The COA held that denial or granting of a discovery motion could affect a substantial right if the information desired is highly material to a determination of the critical question to be resolved in the case. The HOA argued that the memo showed that Georgia-Pacific knew of the existence of defects in the building material prior to its installation at Harbour Point and that this made the memo material.

The COA concluded that the memo was not "highly material" because it contained only conclusory opinions and was unsupported by information concerning the professor's qualifications, the basis for his opinions, the literature he reviewed, the testing he conducted, or the results of the tests. The memo thus did not establish what Georgia-Pacific's employees, outside product testers, and experts knew about the adequacy of the building material and when they knew it, which was critical to the HOA's breach of implied warranty claim. The COA noted that while the memo may have assisted in establishing the HOA's claims for negligence and breach of implied warranty, such prior knowledge was not essential to those claims.