Prenuptial Agreement or “Engagement Agreement”

The North Carolina Court of Appeals recently considered a case where the trial court awarded $40,000.00 for an overly broad subpoena. This case involved a tort action on an “Engagement Agreement” containing a provision where Plaintiff (prospective husband) was obligated to support Defendant (prospective wife) for the rest of their lives whether they married or not. Prospective husband, convinced that prospective wife never intended to marry him, sued prospective wife for fraud and other such claims. The prospective husband thought that he had signed a prenuptial agreement, rather than an “Engagement Agreement.” Through the course of litigation, prospective husband subpoenaed documents from several of prospective wife’s former attorneys who were involved in the drafting of the “Engagement Agreement” – all objected.

One of the subpoenaed law firms, was also representing prospective wife in the subject litigation. This law firm was ultimately compelled to comply – and comply they did. Subsequently, The law firm sought reimbursement (the law firm calculated that it had incurred an expense of $53,704.06 and had used 232.2 hours of labor). Plaintiff appealed from an order requiring him to reimburse the law firm $40,000 for “lost earnings and expenses” incurred by the attorneys in complying with the trial court’s order compelling the law firm to submit a privilege log and copies of documents related to the “Engagement Agreement” requested in Plaintiff’s subpoena duces tecum, served on the law firm. The North Carolina Court of Appeals concluded that an award for lost earnings and significant expense was warranted under Rule 45(c)(1) and (c)(6).

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