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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
KATHY L. ISOM, Plaintiff, v. BANK OF AMERICA, N.A., Defendant
Filed: 2 May 2006
1. Appeal and Error_appealability--discovery order_some documents protected, some
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
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
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
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.
Cross appeals by defendant and plaintiff from an order entered
13 April 2005 by Judge W. Robert Bell in Mecklenburg County
Superior Court. Heard in the Court of Appeals 7 February 2006.
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.
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
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
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.
 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
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
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.
 The attorney-client privilege protects communications if:
(1) the relation of attorney and client
existed at the time the communication was
made, (2) the communication was made in
confidence, (3) the communication relates to a
matter about which the attorney is being
professionally consulted, (4) the
communication was made in the course of giving
or seeking legal advice for a proper purpose
although litigation need not be contemplated
and (5) the client has not waived the
State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981);
Evans, 142 N.C. App. at 32, 541 S.E.2d at 791.
As to the first group, those emails exchanged between bank
officials, the trial court ruled the attorney-client privilege was
not applicable to protect their discovery. We agree. Through our
review, these emails do not seem to have been sent or received for
the purpose of giving or seeking legal advice. Much to the
contrary, the emails suggest a purely business matter. The Bank's
attorneys appear to have been copied in the exchange merely for
informational purposes. [A] document, which is not privileged in
the hands of the client, will not be imbued with the privilege
merely because the document is handed over to the attorney. Mason
C. Day Excavating, Inc., v. Lumbermens Mut. Cas. Co., 143 F.R.D.
601, 607 (M.D.N.C. 1992) (citing Gould, Inc. v. Mitsui Min. &
Smelting Co., 825 F.2d 676, 679-80 (2nd Cir. 1987)). As such, thetrial court did not abuse its discretion in ordering these emails
 As to the second group, emails discussing the pending
vendor litigation and arbitration, the trial court found these
documents were protected by the attorney-client privilege. We
again determine no abuse of discretion in this ruling. At the time
these emails were sent, the attorney-client relationship was firmly
established; the emails were apparently exchanged in confidence;
they related to discovery matters about which the attorneys were
being professionally consulted; and they were exchanged in the
course of litigation and arbitration proceedings. See Evans, 142
N.C. App. at 32, 541 S.E.2d at 791.
 The trial court issued more individualized rulings to the
third group of documents than the previous two. This group
consisted of: 1) an email discussing revisions to the draft
declaration Isom was asked to sign; 2) an email from outside
counsel to various individuals requesting a meeting to discuss
those revisions; 3) an email from in-house counsel to various
individuals; and 4) an email written and sent by Isom, in which she
expressed her reluctance to sign the document. Although if
permitted to consider the decision on these documents anew, we may
arrive at a different conclusion, we cannot say that the trial
court's application of the attorney-client privilege here was
manifestly unsupported by reason. See Bourlon, 172 N.C. App. at
601, 617 S.E.2d at 45. The trial court found that the first and
third emails were protected, but under the circumstances the secondand fourth emails were not. An email requesting a meeting and
another shared with both attorneys and non-attorneys are not
generally protected by the attorney-client privilege. See Hartsell
v. Hartsell, 99 N.C. App. 380, 392-93, 393 S.E.2d 570, 578 (1990)
(attorney's request to client to come to office was not protected
by attorney client privilege, only communications that were
intended to be confidential are), aff'd. per curiam, 328 N.C. 729,
403 S.E.2d 307 (1991).
 As to the last group, the draft declaration itself, the
trial court ruled it was not protected by attorney-client
privilege. Since the declaration does not appear to have been
intended as a confidential communication between attorney and
client, but rather a court document prepared in relation to the
pending vendor litigation, it can hardly be said that the trial
court abused its discretion. It does, however, highlight the
Bank's alternative argument for protection.
The Bank argues that those documents not deemed protected by
the attorney-client privilege were nevertheless protected by the
work product doctrine, and thus the trial court erred in ruling
some of the in camera documents discoverable. In order to
successfully assert protection based on the work product doctrine,
the party asserting the protection, the Bank here, bears the burden
of showing '(1) that the material consists of documents or
tangible things, (2) which were prepared in anticipation of
litigation or for trial, and (3) by or for another party or itsrepresentatives which may include an attorney, consultant . . . or
agent.' Evans, 142 N.C. App. at 29, 541 S.E.2d at 789 (quoting
Suggs v. Whittaker, 152 F.R.D 501, 504-05 (M.D.N.C. 1983)).
 As to the first group of documents, the trial court
determined these emails were not shielded from discovery by the
work product doctrine. We see no abuse of discretion in that
determination. Notwithstanding the fact that these emails were
exchanged during the pending legal dispute between the Bank and its
check vendor, a review of their text yields a wholly reasonable
determination that the intent of the exchange was not in
anticipation of litigation or for the purpose of preparing for
trial. These emails appear to be nothing more than that which
would be sent in the ordinary course of business. And, it goes
without saying that any otherwise business emails, copied to an
attorney, are not protected by the work product doctrine solely due
to the fact they were sent during a time when the business is
anticipating litigation. See Mason C. Day Excavating, 143 F.R.D.
 Since the trial court determined the second group of
documents, as well as the first and third email from the third
group, was covered by the attorney-client privilege, there is no
need to review whether the work product doctrine was applicable to
them. However, the remaining documents produced for in camera
inspection_the email written by Isom, the email containing a
meeting request, and the draft declaration Isom was asked to
sign_must be reviewed since the trial court ruled theattorney-client privilege did not shield them. The trial court
ruled these documents were also not protected by the work product
doctrine, or otherwise fell within the doctrine's exception, and
were thus discoverable. We see no abuse of discretion in that
determination either. Ms. Isom's email was not drafted by an
attorney, nor was it necessarily prepared in anticipation of
litigation; it is a statement of her inclination not to sign a
document. And since the work product doctrine should be narrowly
construed consistent with its purpose, which is to safeguard the
lawyer's work in developing his client's case, see Suggs, 152 F.R.D
501 at 505, we cannot say that the trial court abused its
discretion when ruling on the meeting request. Last is the draft
declaration Isom was asked to sign. This document was clearly
prepared by the Bank's attorneys in anticipation of the litigation
and arbitration between the Bank and its check vendor. Therefore,
it falls squarely within the definition of attorney work product
and, barring a showing by Isom of any exception, is protected.
 Isom may discover a document protected by the work product
doctrine if she can demonstrate that a substantial need for the
document exists and she would undergo undue hardship if forced to
obtain a substantial equivalent by other means.
[A] party may obtain discovery of documents
and tangible things otherwise discoverable
under subsection (b)(1) of this rule and
prepared in anticipation of litigation or for
trial . . . only upon a showing that the party
seeking discovery has substantial need of the
materials in the preparation of his case and
that he is unable without undue hardship to
obtain the substantial equivalent of the
materials by other means.
N.C. Gen. Stat. § 1A-1, Rule 26(b)(3) (2005). The trial court
stated that Isom had adequately demonstrated a substantial need and
inability to obtain the information elsewhere. Her cause of action
and theory of the case is based on proving that she was fired for
refusing to sign this draft declaration. And, since the Bank is
the only party in possession of this particular document, we
determine the trial court did not abuse its discretion in applying
the exception to the work product doctrine for this declaration.
 The Bank additionally argues that the trial court abused
its discretion in allowing Isom to depose those individuals named
in the discoverable documents. While such depositions are allowed
by the order, the Bank is not precluded from asserting any
privilege that might protect other documents or testimony uncovered
during the deposition but not yet reviewed by the trial court.
Any deposition taken pursuant to this Order
shall be considered protected information by
all parties. Any information Defendant
considers protected by the work-product
doctrine and/or attorney-client privilege may
be submitted first to the Trial Court for an
in camera review and determination within 30
days of the deposition.
As such, we cannot say that the trial court abused its discretion
in allowing Isom to depose individuals in connection to the
discoverable documents, while yet allowing the Bank to raise
 Isom's cross appeal rests on the assumption that all the
documents should have been discoverable. Isom alsoargues that the crime-fraud exception to the attorney-client
privilege is applicable to all the documents related to the
declaration. However, Isom's single assignment of error does not
comport with the Rules of Appellate Procedure and warrants
dismissal. See, e.g., May v. Down East Homes of Beulaville, Inc.
175 N.C. App. 416, 623 S.E.2d 345 (2006); Walker v. Walker
N.C. App. 778, 624 S.E.2d 639 (2005); Wade v. Wade
, 72 N.C. App.
372, 375-76, 325 S.E.2d 260, 265-66, disc. review denied
, 313 N.C.
612, 330 S.E.2d 616 (1985); Electric Co. v. Carras
, 29 N.C. App.
105, 107-08, 223 S.E.2d 536, 538 (1976). Her broadside assignment
of error encompasses at least three, if not more, cognizable and
specific legal reasons why the trial court erred. See
P. 10(c)(1) (Each assignment of error shall, so far as
practicable, be confined to a single issue of law; and shall state
plainly, concisely and without argumentation the legal basis upon
which error is assigned.). Furthermore, the assignment of error
makes no specific reference to the crime-fraud exception.
Accordingly, we dismiss Isom's cross appeal.
In conclusion, we determine that the trial court exercised
reasoned and deliberate care in ordering that some of the in camera
documents were discoverable and some were shielded. Naturally,
this appeal is limited to the order before us and we take no
position as to the merits of the underlying case.
Judges McCULLOUGH and LEVINSON concur.
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