Retaliation Cases

William DeRoche vs. Massachusetts Commission Against Discrimination & another. Middlesex. April 6, 2006. June 12, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Employment, Discrimination, Retaliation. Emotional Distress. Anti-Discrimination Law, Employment, Age, Attorney’s fees. Damages, Emotional distress, Interest, Attorney’s fees. Massachusetts Commission Against Discrimination. Interest. Governmental Immunity. Massachusetts Tort Claims Act. Practice, Civil, Attorney’s fees. Evidence in a civil action for damages based on a municipal employer’s unlawful retaliation against the plaintiff employee for filing a complaint alleging age discrimination in violation of G. L. c. 151B, § 4, did not support an award for emotional distress. [7-9] This court announced that prejudgment interest may properly be imposed on a damages award under G. L. c. 15 IB against a public employer, where the Legislature has expressed its intention, manifest through a natural and ordinary reading of the statute, that sovereign immunity with respect to the imposition of interest on a G. L. c. 151B damage award has been waived [9-11]; therefore, such interest was properly awarded in a civil action for retaliatory discrimination against a municipal utility company, which was, as a department of the town, a public entity [11-14]. A Superior Court judge acted well within his authority in modifying an award of back pay by the Massachusetts Commission Against Discrimination (commission) to include an assessment of interest in conformity with the statutory rate of twelve per cent provided for in G. L. c. 231, § 6B, where the commission had denied interest based on an error of law [14-15]; nevertheless, the plaintiff was not entitled to prejudgment interest on his front pay award [15], and there was no justification for calculating the back pay interest from a date that preceded the unlawful retaliatory conduct on which the action was premised [15-16]. This court concluded that the language of G. L. c. 151B, § 5, providing that a prevailing party before the Massachusetts Commission Against Discrimination (commission) is entitled to reasonable costs and attorney’s fees, supports an award of reasonable attorney’s fees and costs to a prevailing plaintiff in an administrative appeal pursuant to G. L. c. 151B, § 6 [16-18]; accordingly, a plaintiff who succeeded in defending a favorable decision from the commission appropriately made a motion in the Superior Court requesting such fees and costs, and a judge in that court could consider an award compensating the plaintiff for expenses incurred in connection with those issues on which the plaintiff prevailed in the Superior Court [18-19]. Civil actions commenced in the Superior Court Department on October 15 and October 17, 2003. After consolidation, the cases were heard by Geraldine S. Hines, J., on motions for judgment on the pleadings, and a motion for attorney’s fees and costs was heard by Stephen E. Neel, J. The Supreme Judicial Court granted an application for direct appellate review. Nicholas J. Scobbo, Jr. (Ann Ryan-Small with him) for Wake-field Municipal Gas & Light Department. Seth H. Hochbaum for the plaintiff. Beverly I. Ward for Massachusetts Commission Against Discrimination. The following submitted briefs for amici curiae: Thomas F. Reilly, Attorney General, & Peter Sacks, Assistant Attorney General, for the Commonwealth. James S. Weliky for National Employment Lawyers’ Association, Massachusetts Chapter. Wakefield Municipal Gas & Light Department (department). Greaney, J. This appeal arises out of a decision by the Massachusetts Commission Against Discrimination (commission) that the Wakefield Municipal Gas & Light Department (department) unlawfully retaliated against the plaintiff for filing a complaint with the commission claiming that the department had discriminated against him on the basis of his age in violation of G. L. c. 151B, § 4 (4). The commission ordered the department to pay the plaintiff damages in the amount of $260,000, including $50,000 to compensate him for emotional distress, but failed to provide for interest on the damages. The plaintiff and the department both sought judicial review of the commission’s decision pursuant to G. L. c. 151B, § 6. After a hearing in accordance with standards set forth in G. L. c. 30A, § 14, a judge in the Superior Court entered a judgment affirming the commission’s determination that the department had committed retaliatory employment action and the commission’s award of damages, and, in addition, declaring that interest be assessed on the damages. A second judge in the Superior Court denied the plaintiff’s motion for reasonable attorney’s fees and costs for services performed during the G. L. c. 30A proceedings in the Superior Court. Both parties have appealed. The department does not contest its liability under G. L. c. 15IB, but claims that the judge lacked authority to assess interest on the damages awarded the plaintiff and, further, that the award of $50,000 in damages for emotional distress is unsupported by the plaintiff’s evidence. The plaintiff, in turn, asserts his entitlement to reasonable attorney’s fees and costs incurred in connection with successfully defending the commission’s decision before the Superior Court. We allowed the plaintiff’s application for direct appellate review and, for reasons set forth in this opinion, conclude that the plaintiff is entitled to (1) no damages for emotional distress for the department’s retaliatory conduct; (2) prejudgment interest, at the rate of twelve per cent per annum, assessed on the damages for back pay, calculated from May 6, 1996, the date of the retaliatory conduct, until June 1, 2005, the date judgment entered in his favor; and (3) reasonable attorney’s fees and costs incurred during the appeal to the Superior Court of the commission’s award in connection with those issues on which he ultimately prevailed. We remand the case to the Superior Court for modification of the judgment in accordance with this opinion. The background of the case may be summarized as follows. The department is a municipal electric department established by the voters of the town of Wakefield (town), pursuant to G. L. c. 164, § 34, to operate the light plant owned by the town. The plaintiff was employed at the department from 1950 until 1993, when he retired (believing that his retirement was mandatory) at age sixty-five. The town retirement board processed the plaintiffs application for retirement without informing him that, due to a change in the public employee retirement statute, G. L. c. 32, he was not required to retire until he was seventy years of age. Approximately two years later, a manager at the department notified the plaintiff of the change in G. L. c. 32. The plaintiff responded to this unexpected news, first, by requesting a financial settlement to compensate for his premature retirement and, later, by requesting from the department reinstatement to his former position and reimbursement of lost wages and overtime pay. The plaintiff sought answers from the department and the retirement board as to how such a mistake could happen, but his attempts to pinpoint responsibility in the matter proved fruitless. On February 15, 1996, the plaintiff filed a complaint with the commission alleging that the town retirement board and the department had “forced” his retirement, thereby unlawfully discriminating against him on account of his age, in violation of G. L. c. 151B. In response to the plaintiff’s complaint, the department offered to reinstate the plaintiff to his former position. The plaintiff returned to work in May, 1996, but resigned, after only one day, on learning that he had been assigned to the position of lead lineworker in a line crew, which was a more dangerous and physically demanding position than the one he left in 1993, which was lead lineworker in a home service crew. The plaintiff then amended his complaint with the commission to add a claim of retaliation. After a hearing, a commission hearing officer determined that the department’s failure to inform the defendant that he was not required to retire at age sixty-five did not constitute discrimination under G. L. c. 151B, but that the department’s conduct in assigning the plaintiff to the line crew rather than the home service crew on his May, 1996, return to employment was adverse action in retaliation for the plaintiff’s having filed a complaint with the commission. The hearing officer ordered the department to pay the plaintiff compensatory damages in the sum of $260,000, representing $210,000 in damages for back and front pay and $50,000 in damages for emotional distress. Under the authority of a decision of the Appeals Court, see Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234 (1995), the hearing officer denied the plaintiff’s request to assess interest against the department. On appeal to the full commission, brought by both the department and the plaintiff, the hearing officer’s decision was affirmed in all respects. Both the department and the plaintiff sought judicial review of the commission decision, and the cases were consolidated in the Superior Court. The department challenged the commission’s finding of retaliation and its award of emotional distress damages. The plaintiff appealed from that part of the order which denied the assessment of interest on the award. Prior to the hearing before the judge in the Superior Court, the commission, which had taken the position that the department’s status as a public entity rendered it exempt from paying interest on damages awarded under G. L. c. 151B, joined the plaintiff’s efforts to reverse its own decision on that point. Considering the parties’ motions for judgment on the pleadings, a judge in the Superior Court affirmed the commission’s decision that the department had retaliated against the plaintiff and its award of damages. The judge, however, reversed the commission’s decision with respect to the imposition of interest, based on her determination that the department is not a public entity and, therefore, not protected by principles of sovereign immunity. Accordingly, the judge denied the department’s motion for judgment on the pleadings and allowed the plaintiff’s motion for judgment on the pleadings with respect to the assessment of interest on the damages award of front and back pay. The department’s motion for reconsideration of the judge’s order was denied, and the department thereafter filed an appeal from the judge’s orders. The judge subsequently issued a “corrected judgment on finding of the court” clarifying that the department is to pay the plaintiff the sum of $308,890.40 (the total sum awarded by the commission, representing $210,000 in front and back pay damages, $50,000 in emotional distress damages, and $48,890.40 for reasonable attorney’s fees and costs, see note 4, supra), with interest in the amount of $290,119.80 (reflecting a rate of twelve per cent assessed on the total amount of damages from February 15, 1996, to June 1, 2005), and ordering postjudgment interest to accrue from and after June 1, 2005 (the date the original judgment entered). The plaintiff filed a motion for attorney’s fees and costs incurred in connection with the G. L. c. 30A review of the commission’s decision. This motion was considered by a second judge in the Superior Court who, after a hearing, concluded that there is no statutory authority for the award of the requested fees. The plaintiff appealed from the denial of his request for reasonable attorney’s fees and costs, and as has been mentioned, we granted the plaintiffs application for direct appellate review. 1. We first address the commission’s award of $50,000 in emotional distress damages. In Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 575-577 (2004), we clarified the standards governing an award by the commission for damages to compensate a plaintiff for emotional distress caused by an employer’s discriminatory conduct and enumerated factors a reviewing judge should consider in determining whether such an award may stand. A critical point expressed in our Stonehill decision was that a finding by the commission of discrimination, or retaliation, is insufficient by itself, as matter of law, to permit an inference of emotional harm. See id. at 576, citing Equal Employment Opportunity Commission: Policy Guide on Compensatory and Punitive Damages under 1991 Civil Rights Act (July 7, 1992), reprinted in Fair Empl. Prac. Man. (BNA) 405:7091-405:7102. We emphasized that emotional distress, to be compensable, must be proved by substantial evidence of the emotional suffering that occurred, as well as substantial evidence of a causal connection between the complainant’s emotional distress and the respondent’s unlawful act. See id. at 576-577. Factors to be considered include “(1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the complainant has suffered and reasonably expects to suffer; and (4) whether the complainant has attempted to mitigate the harm (e.g., by counseling or by talcing medication).” Id. at 576. The factual basis for emotional distress damages awarded by the commission must be clear on the record, and a reviewing judge must set aside (or remit to an appropriate amount) awards that are not supported by substantial evidence. See id. at 576-577; G. L. c. 30A, § 14. An emotional distress damage award may not be imposed as a substitute for punitive damages (which the commission is not authorized, under G. L. c. 15IB, § 5, to award). See id. at 575-576. The hearing officer found that the plaintiff, his wife, and his daughter presented “sincere, credible, and compelling” testimony about the emotional impact on the plaintiff resulting from his original retirement in September, 1993. The plaintiff described his work at the department as “his whole life.” His wife testified that the plaintiff “dreaded” the approach of his sixty-fifth birthday and was “shattered” that he had to give up his job after forty-three years when he did not feel physically or mentally ready to retire. The plaintiff’s daughter used the words “despondent,” “devastated,” and “very depressed” to describe the plaintiff in the days leading up to his retirement. She stated that her father, on learning of the mistake that had occurred with respect to his mandatory retirement age, was “brokenhearted” and “couldn’t understand and still can’t understand how (a) something like this could happen and (b) no one could give him an explanation.” According to his wife, the plaintiff felt “devastated” and “angry” at the manner in which the department and the retirement board “shuffled him back and forth” and described the plaintiff’s outrage that he was not treated with dignity or respect after forty-three years of service to the department. The plaintiff testified that his attempts to assign responsibility, and obtain redress, for the mistake, made him feel like a “yo-yo going back and forth.” When asked specifically how he felt on being assigned to the line crew, the plaintiff responded, “I just couldn’t understand the line of reasoning.” The department argues that this evidence does not support the commission’s award of $50,000 in damages for emotional distress. We agree. The award appears to be a classic example of what the principles set forth in our Stonehill decision were intended to discourage. The evidence presented at the hearing with respect to the plaintiff’s distressed emotional state relates either to emotions experienced by the plaintiff in the months and weeks leading up to his impending retirement in 1993, or to the plaintiff’s reaction after being informed of the mistake, in the fall of 1995, and lacks any causal connection with the finding of retaliation against the department. According to the plaintiff’s testimony, his over-all health had been exemplary since 1996. The plaintiff stated that he never had to seek medical help, or take medicatian, for symptoms related to emotional distress. There was no testimony that the plaintiff experienced physical manifestations of distress, such as loss of appetite or difficulty in sleeping, or that the plaintiff was compelled to curtail his life activities in any way due to stress from the department’s retaliatory action. The only evidence offered by the plaintiff on his mental state after his assignment to the line crew in May, 1996, was his testimony that he “couldn’t understand” the reasoning that led to the assignment. This testimony falls far below the factual basis for an emotional distress award deemed sufficient in our Stonehill decision and cannot constitute substantial evidence to support the commission’s determination that such an award was warranted. The commission’s award of emotional distress damages, therefore, cannot stand. 2. We next address the department’s challenge to the imposition of interest on the damages awarded the plaintiff. In Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234, 245-246 (1995), the Appeals Court recognized that G. L. c. 15IB is silent on the subject of interest on awards against the Commonwealth or its instrumentalities. Relying on decisions of this court addressing the issue of interest under the Massachusetts Tort Claims Act, G. L. c. 258, see Onofrio v. Department of Mental Health, 411 Mass. 657, 659 (1992), and under the statute providing compensation to victims of violent crimes, G. L. c. 258A, see Gurley v. Commonwealth, 363 Mass. 595, 600 (1973), the Appeals Court held that interest could not permissibly be imposed on an award under G. L. c. 15 IB against a public entity. See Boston v. Massachusetts Comm’n Against Discrimination, supra. In a later case, Salem v. Massachusetts Comm’n Against Discrimination, 44 Mass. App. Ct. 627 (1998), the Appeals Court reiterated the rule, explaining that the rule “presents an application of the doctrine of sovereign immunity.” Id. at 646. On appeal, the commission and the plaintiff take the position that the Boston decision was wrongly decided and that G. L. c. 151B, § 5, creates a waiver of sovereign immunity with respect to interest. The department, on the other hand, argues that (a) it is a public entity, and (b) therefore, not subject to the assessment of interest under G. L. c. 151B; but (c) to the extent that interest may be assessed, it should not be computed at twelve per cent, but at the floating interest rate set forth in G. L. c. 231, § 61, and (d) should be calculated only on that portion of the damage award representing back pay and (e) from the date of the retaliatory action and not from the date that the plaintiff filed his original complaint with the commission. (a) We agree with the department that it is a public entity. The citizens of the town voted to create the department, G. L. c. 164, § 55, and the department’s board of commissioners (board) is comprised of members elected by those same citizens. Id. It is the town that owns the light plant that the department operates. G. L. c. 164, § 34. The manager of the department, who has “full charge of the operation and management of the plant,” is appointed by the board. G. L. c. 164, § 56. The Legislature has specifically placed the department in the class of entities subject to the Tort Claims Act, thereby reflecting its view that the department is in that class of entities afforded the protections of sovereign immunity. See G. L. c. 258, § 1 (“[pjublic employer” means “any . . . town . . . and any department . . . thereof . . . including a municipal gas or electric plant”). The department is subject to the requirements of G. L. c. 39, § 23B (open meeting law), and G. L. c. 66, § 10 (public records statute), which apply only to public entities. See G. L. c. 39, § 23A. Se

KATHY L. ISOM, Plaintiff v. BANK OF AMERICA, N.A., Defendant No. COA05-946 (Filed 2 May 2006) 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: Plaintiffs email stating her inclination 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. 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. 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 wrongful discharge, 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 court on 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 discovery order 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 document Isom refused to sign. The final in camera document, and the final group, was the draft declaration that Isom had been asked to sign. I. The attorney-client privilege protects communications if: (I) 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 privilege. 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, the trial court did not abuse its discretion in ordering these emails discoverable. 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 second and 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. II. 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 its representatives 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. at 607. 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 the attorney-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. III. 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 uncov