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1. Appeal and Error_appealability--discovery order_some documents protected, some
not_immediately appealable
The immediate appeal of a trial court discovery order protecting some but not all of the
documents in question affected a substantial right that would otherwise be lost, and the order was
reviewed. However, the order will be upset only by a showing that the trial court abused its
discretion.
2. Discovery_emails_attorney-client privilege_inapplicability
Emails exchanged between bank officials were not protected from discovery by the
attorney-client privilege where they suggested a purely business matter, were not for legal advice,
and the attorneys were copied merely for information. A document without privilege in the hands
of the client does not become privileged merely because it is handed to the attorney.
3. Discovery_emails--attorney-client privilege_applicability
The trial court did not abuse its discretion by finding that certain emails were protected
from discovery by the attorney-client privilege where the attorney-client relationship was firmly
established at the time the emails were sent; the emails were apparently exchanged in confidence;
they related to discovery matters about which the attorneys were being consulted; and they were
exchanged in the course of litigation and arbitration.
4. Discovery_attorney-client privilege_applicability
The trial court did not abuse its discretion by ruling that an email from counsel discussing
revisions to a draft resolution and an email from in-house counsel were protected from discovery
by the attorney-client privilege and that an email from attorneys requesting a meeting and an
email from defendant shared with attorneys and nonattorneys were not so protected.
5. Evidence_attorney-client privilege_draft document_pending litigation
A draft document prepared in relation to pending litigation but not as a confidential
communication between attorney and client was not protected by attorney-client privilege.
6. Evidence_emails_discovery_work product doctrine
The trial court did not abuse its discretion by determining that certain emails were not
shielded from discovery by the work product doctrine. A review of the text of the emails yields a
wholly reasonable determination that the intent of the exchange was not in anticipation of
litigation. Business emails which are copied to an attorney are not protected by the work product
doctrine solely due to the fact that they were sent while the business was contemplating litigation.
7. Discovery_emails_work product doctrine
The trial court did not abuse its discretion in its determination of whether certain emails
were protected by the work product doctrine and were discoverable. Plaintiff's email stating herinclination not to sign a document was not drafted by an attorney, nor was it necessarily prepared
in anticipation of litigation. However, the draft declaration defendant was asked to sign was
prepared by defendant's attorneys in anticipation of litigation, falls squarely within the definition
of attorney work product, and is protected.
8. Evidence_work product doctrine_exception_substantial need and evidence
unavailable elsewhere
The trial court did not abuse its discretion by applying an exception to the work product
doctrine to a document which plaintiff refused to sign (and for which she was allegedly fired)
where plaintiff adequately demonstrated a substantial need and inability to obtain the information
elsewhere.
9. Discovery_depositions allowed_further objections allowed
The trial court did not abuse its discretion by allowing plaintiff to depose individuals in
connection with discoverable documents, while allowing defendant to raise further attorney-
client and work-product objections.
10. Appeal and Error_preservation of issues--broadside assignment of error_dismissed
A single broadside assignment of error which encompassed at least three cognizable and
specific legal reasons for error was dismissed.
Murphy & Chapman, P.A., by Jenny L. Sharpe, for plaintiff.
Hunton & Williams, L.L.P., by Frank E. Emory, Jr., Anthony R.
Foxx, and K. Stacie Corbett, for defendant.
ELMORE, Judge.
Kathy L. Isom (Isom) and Bank of America, N.A. (Bank) enter
cross appeals from a discovery order granting, in part, the Bank's
motion for a protective order, and granting, in part, Isom's motion
to compel. After a careful review of the trial court's order, the
relevant law, and the parties' arguments, we determine the trial
court did not abuse its discretion in issuing the order. Isom worked for the Bank as a Vice President and manager in
the Consumer Deposits Products division. Her duties included
managing and implementing programs designed to assist individuals
and businesses with their checking needs, and interfacing with the
Bank's check vendors. In that capacity, she was intricately
involved in the Bank's check vendor consolidation project: an
apparent assessment to determine whether the Bank should convert
from dual check vendors to a single vendor. The Bank decided to
make the consolidation, thus creating a conflict with one of its
current vendors. That vendor, under the parties' contract, sought
arbitration of the alleged breach. In response, the Bank filed a
suit in federal court seeking preliminary and permanent injunctive
relief.
On or about 30 January 2004 Isom attended a meeting with bank
officials and the Bank's attorneys. There, Isom was asked to sign
a document relating to the pending dispute with the check vendor.
She refused to sign the document at that time and several times
thereafter, claiming it was not accurate.
In February 2004, Isom's supervisor reviewed discovery
documents from the check vendor that indicated Isom had relayed
sensitive Bank information regarding those proceedings to one of
the vendor's employees. That employee was deposed 15 March 2004,
and confirmed Isom had provided him with the information contained
in the discovery documents.
Thereafter, in late March, the Bank terminated Isom's
employment. Isom, in her complaint against the Bank for wrongfuldischarge, contends the Bank fired her because she would not sign
a court-related document presented by the Bank's attorneys, a
document that she claims was inaccurate or not truthful. She
alleges her termination was in violation of our state's public
policy. The Bank responds that Isom was fired for disclosing
confidential information, in violation of a non-disclosure
agreement related to its check vendor consolidation project.
Accordingly, the Bank filed a counterclaim against Isom alleging
breach of contract, breach of ethics policies, and breach of
fiduciary duties.
The trial court's order at issue before us arises from
discovery matters in Isom's wrongful termination suit. Generally
speaking, Isom sought information from the Bank related to its
dispute with the check vendor. She requested the document she
refused to sign, correspondence exchanged between her and the
Bank's attorneys pertaining to the vendor dispute, as well as
correspondence exchanged between her and other bank officials. The
Bank argued that these requests were protected by attorney-client
privilege or the work product doctrine, and thus were
non-discoverable. The Bank also advanced these theories in
protecting information requested by Isom in two depositions. The
Bank filed a motion for a protective order regarding the requested
documents and testimony on 14 July 2004. Several days later, on 27
July 2004, Isom filed a motion to compel discovery.
Following a hearing on the parties' motions, held 30 August
2004, the Bank presented the requested documents to the trial courton 2 September 2004 for in camera inspection. The trial court sent
a letter to the Bank's attorneys on 29 October 2004, stating that
it had determined some of the documents were discoverable and were
to be produced as requested. The Bank responded by requesting an
order clarifying the court's ruling and certifying the issue for
appeal. By order issued 13 April 2005, the trial court listed the
documents that were to be discovered pursuant to Isom's motion to
compel and stated that the remaining documents were
non-discoverable pursuant to the Bank's motion for a protective
order. The order also certified the issue for immediate appeal.
On appeal, Isom and the Bank, respectively, contend that all the
documents should have been discoverable or all the documents should
have been protected. As such, each party asks us to affirm in part
and reverse in part the trial court's order.
[1] A review of discovery orders is generally considered
interlocutory and therefore not usually immediately appealable
unless they affect a substantial right. [W]here a party asserts
a statutory privilege which directly relates to the matter to be
disclosed under an interlocutory discovery order, and the assertion
of such privilege is not otherwise frivolous or insubstantial, the
challenged order affects a substantial right . . . . Evans v.
United Servs. Auto. Ass'n, 142 N.C. App. 18, 24, 541 S.E.2d 782,
786, cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001). And, since
this appeal affects a substantial right that would be lost if not
reviewed before the entry of final judgment, the issue is properly
before us. That said, our review of a trial court's discoveryorder is quite deferential: the order will only be upset on appeal
by a showing that the trial court abused its discretion. See id.
at 27, 541 S.E.2d at 788. To demonstrate such abuse, the trial
court's ruling must be shown to be manifestly unsupported by
reason or not the product of a reasoned decision. Nationwide
Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 601, 617 S.E.2d
40, 45 (2005), aff'd. per curiam, 360 N.C. 356, 625 S.E.2d 779
(2006). When the trial court acts within its discretion, [t]his
Court may not substitute its own judgment for that of the trial
court. Id.
Consequently, we will review the in camera documents presented
to the trial court and determine whether it abused its discretion
in determining that some, but not all, of the documents were
protected. We will address the parties' questions presented
according to the two theories of protection asserted: first, the
theory of attorney-client privilege, and should any documents not
be protected by that privilege, we will next review the trial
court's determinations as to the work product doctrine. Then, we
will review the court's application of any exception to the work
product doctrine.
The sixteen documents addressed in the trial court's order can
be generally characterized as falling into four distinct groups.
The first group consists of six emails exchanged between bank
officials and copied to its attorneys. The next group of five
emails discusses various discovery issues in the pending vendor
dispute. A third group of four emails involves the actual documentIsom refused to sign. The final in camera document, and the final
group, was the draft declaration that Isom had been asked to sign.
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