Wrongful Termination Cases

Ronald A. York vs. Zurich Scudder Investments, Inc. No. 05-P-976. Suffolk. March 3, 2006. June 26, 2006. Present: Greenberg, Duffly, & Katzmann, JJ. Contract, Employment, Performance and breach, Implied covenant of good faith and fair dealing, Misrepresentation. Employment, Termination. Damages, Quantum meruit. In the circumstances of a civil action brought in Superior Court by an at-will employee, seeking recovery of incentive compensation that his former employer had denied him after his termination during a cost-cutting initiative, the judge did not err in granting summary judgment in favor of the employer on the employee’s claims of breach of contract, breach of the implied covenant of good faith and fair dealing, misrepresentation, and quantum meruit, where the employee admitted facts that established that he had no reasonable expectation of proving any of his claims or any right to recover posttermination increments of incentive compensation. [614-620] Civil action commenced in the Superior Court Department on October 11, 2001. The case was heard by Nancy Staffier Holtz, J., on a motion for summary judgment. Richard C. Van Nostrand for the plaintiff. Scott A. Roberts for the defendant. Katzmann, J. Ronald A. York, who was an at-will employee of Zurich Scudder Investments, Inc., and its predecessors in interest (Scudder), filed suit in Superior Court seeking recovery of incentive compensation he claims was improperly denied him after Scudder terminated him. He alleged counts of breach of contract, breach of the implied covenant of good faith and fair dealing, misrepresentation, and quantum meruit. The judge allowed Scudder’s motion for summary judgment on all counts without written opinion, and York appeals. We affirm. Background. York’s claims center on incentive compensation that he argues Scudder should have continued to pay him even after he was terminated in 2000. We summarize the facts in the light most favorable to York. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). However, we note at the outset that where the facts conflict, we consider the statements made by York during his deposition, and not the assertions in his affidavit made two months later. See Morrell v. Precise Engr., Inc., 36 Mass. App. Ct. 935, 937 (1994), quoting from O’Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993) (“a party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition”). When York began his employment with Scudder in 1990 as a nonsales employee, he was not eligible for the sales incentive compensation program that is at the heart of this lawsuit. However, in 1994, York was recruited to become a sales representative, responsible for selling group retirement plans managed by Scudder. At that point, a manager named Mark Cassidy informed York that as a sales representative his salary would remain the same, but he would receive additional sales incentive compensation. The amount of the incentive compensation, according to Cassidy, would depend on the account value of each client York recruited over a period of years. Specifically, York was told that he would receive a certain percentage of the account value in the first year the account resided with Scudder, and a lesser percentage for each of the following three years of the account. York understood that the sales incentive payments would be made quarterly and would only commence if and when a client actually transferred funds to Scudder. York also understood that sales incentive compensation would cease during a payout period if the client withdrew the funds from Scudder, as clients were entitled to do at any time. Cassidy did not discuss with York the existence of any written Scudder policy that would govern his sales incentive compensation arrangement. Nevertheless, at the time of his discussion with Cassidy, there had been a written incentive compensation plan in existence for two years (the 1992 plan) that was substantially similar to the arrangement described to York by Cassidy. York acknowledges that he learned of the 1992 plan at some point and accepted that it governed his incentive compensation from 1994 through at least 1999. The 1992 plan did not provide that an employee would forfeit earned but unpaid incentive compensation if his employment was terminated during the payout period. The 1992 plan also did not require that sales representatives perform any further work with a particular client after the sale in order to receive incentive compensation. In January, 1998, Scudder issued a new employee handbook that covered a broad array of topics and was published on Scudder’s intranet. As part of its content on employment termination, the handbook stated: “In every separation, the formal employer-employee relationship ceases as of the separation date. The privileges and rights associated with employment end as of the separation date, including all forms of compensation, commissions, benefits, vacations, and leaves of absence.” Scudder also issued other policies on various topics from time to time on its intranet. Although York never discussed the handbook and policies with anyone, he did know that they were available, and he recognized that he was subject to them, at least where they did not conflict with his oral negotiations with Cassidy. On January 1, 1999, Scudder issued a new incentive compensation plan for sales representatives. Under this plan, sales representatives would only be paid the incentive compensation for three instead of four years, but additional assets would be included in calculating incentive compensation. In addition, Scudder issued a new incentive compensation plan for senior sales representatives, also effective as of January 1, 1999, that was substantially identical in relevant respects to the plan for sales representatives. (We refer to both plans collectively as the 1999 plan.) The 1999 plan stated the following: “Participants who terminate employment with [Scudder] for all other reasons (e.g., voluntary termination, involuntary termination with or without cause, etc.) prior to the payment of incentive awards, forfeit all rights to the payment of any and/or all awards under this Plan.” From 1994 to 1999, York secured a number of new accounts and was paid in accordance with the 1992 plan. In October, 1999, York was promoted to senior sales representative and given a new territory. York did not dispute that his sales incentive compensation was subject to the 1999 plan after January, 1999. By late spring of 2000, however, York was told that Scudder managers were cutting costs, including employee compensation costs, and that there would be layoffs. On August 28, 2000, York was informed that his employment was being terminated as of September 15, 2000, because his position was being eliminated in a sales group restructuring, and because Scudder did not believe that there were enough business opportunities to justify his position. Between October, 1999 (when he assumed his new position), and August, 2000, York did not bring any funds under management to Scudder. During his deposition, York admitted that he did not believe that Scudder’s business decision was “improper” or that Scudder was not exercising “honest judgment” in terminating him. When Scudder terminated York, it also terminated thirty-five other employees, including three sales people, and it closed requisitions for fifty-nine open positions. After York was terminated, his former territory was divided between the Chicago representative and a more senior representative who previously shared the New England territory with York and whose territory geographically surrounded that of York. During his deposition, York acknowledged that he had no basis to state that Scudder’s reason for terminating him was to avoid paying him commissions after the date of his termination. Moreover, York did not contend that Scudder made false representations to him during his employment. Scudder contends that York was paid all the salary and incentive compensation that he was due through the date of his termination. York was told that he would not be receiving any further incentive payments after his employment ended, although Scudder would pay him a severance package as provided in the 1998 employee handbook. In accordance with Scudder’s separation policy applicable to involuntary terminations resulting from job restructuring, York received severance pay of $137,933.31, which included an enhanced severance benefit of $58,604.31. Subsequently, York brought suit in Superior Court, claiming that at the time of his termination, he was still owed incentive compensation of approximately $212,000 for sales made prior to 1999, and another $223,000 for sales made after January 1, 1999. York also claims that before he was terminated, he had received verbal commitments from four new clients that they would bring their assets to Scudder, and that he is owed incentive compensation for these clients as well. Discussion. “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). In his deposition and by his failure to controvert in relevant respects Scudder’s statement of undisputed facts, York has admitted facts that establish that he has no reasonable expectation of proving any of his claims or any right to recover posttermination increments of incentive compensation. York first contends that the judge erred in entering summary judgment on his breach of contract claim because she ignored a factual dispute whether his employment contract was defined by his oral agreement with Cassidy in 1994, at least with .regard to when his incentive compensation discontinued, or whether it included the documents Scudder issued between 1992 and 1999, as Scudder claims. Under York’s theory of the case, an oral employment contract was formed when he accepted the sales representative position on the terms offered by Cassidy, and any subsequent modification that conflicted with those terms did not apply to him unless he specifically agreed. However, York’s employment contract was at-will, and as such Scudder could modify its terms or “terminate!] [the employment] at any time for any reason or for no reason at all,” with limited exceptions, such as public policy considerations. Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 n.6 (1981). See, e.g., Smith v. Graham Refrigeration Prod. Co., 333 Mass. 181, 186 (1955); Kolodziej v. Smith, 412 Mass. 215, 221-222 (1992). That being the case, even if York’s original agreement in 1994 did not contain any provision discontinuing incentive compensation on termination, the documents Scudder issued in 1998 and 1999 modified the terms of the incentive compensation program to include termination provisions. Moreover, York’s deposition testimony and his responses to Scudder’s statement of undisputed facts both evince York’s awareness of Scudder’s modifications and his general acceptance of them. York merely claims that he believed that the modifications did not apply to him to the extent that they differed from his conversation with Cassidy. Since his was an at-will employment, York’s belief was incorrect. York’s breach of contract claim thus fails. York also argues that Scudder breached an implied covenant of good faith and fair dealing by terminating his employment so that it would not be required to pay him his additional incentive compensation. York relies largely on Gram v. Liberty Mut. Ins. Co., supra at 660 (Gram), which permitted an at-will employee who was not terminated in bad faith to recover “identifiable, reasonably anticipated future compensation, based on his past services, that he lost because of his discharge without [good] cause.” We think that York’s Gram claim must fail because, at the very least, he has established no reasonable expectation of proving that his termination was without good cause. See id. at 666-672 (court discussed concept of good cause in context of terminating at-will employee). Similar to Gram, in Fortune v. National Cash Register Co., 373 Mass. 96, 101 (1977), the Supreme Judicial Court, in the context of a bad faith termination, held that in certain limited circumstances, an at-will employment contract “contains an implied covenant of good faith and fair dealing.” The court recognized the legitimate business interests of an employer in controlling its workforce and for wide discretion, often subjective, to adapt to changing environments. Id. at 101-102. At the same time, an injustice arises when an employer terminates an employee in such a way that it violates the covenant of good faith and fair dealing. See id. at 102; Gram v. Liberty Mut. Ins. Co., supra at 660, 672. There are several principles that emerge to guide our analysis of good faith and fair dealing in order to place the instant appeal in context. First, where an at-will employee has been terminated in bad faith, such as where an employer has acted to deprive an employee of a commission due, or about to be due, and to benefit financially at the employee’s expense, the employee may recover compensation for work performed. Fortune v. National Cash Register Co., supra at 104-105. Second, where an at-will employee is discharged without good cause, but the employer has not acted in bad faith, the employer is liable under the obligation of fair dealing “for the loss of compensation that is so clearly related to an employee’s past service.” Gram v. Liberty Mut. Ins. Co., 384 Mass. at 672. Third, bad faith is not established where there is no evidence that an employer was motivated by improper reason, even though an employee’s termination may be “ ‘bad, unjust, and unkind’ . . ., contrary to [his] reasonable expectations, and the product of inadequate investigation.” Id. at 670, quoting from Richey v. American Auto Assn., 380 Mass. 835, 839 (1980). See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 385, cert. denied sub nom. Globe Newspaper Co. v. Ayash, 126 S. Ct. 397 (2005) (“There is no general duty on the part of an employer to act ‘nicely’ ”). The “absence of good cause itself or the mistaken belief that there is good cause [is not] conclusively demonstrative of bad faith.” Gram v. Liberty Mut. Ins. Co., 384 Mass. at 670. “[T]ermination in the absence of good cause does not establish bad faith, and it is only a factor in determining whether there was fair dealing.” Id. at 668. On the other hand, “good cause to discharge an employee would tend to negate the existence of bad faith in the decision to discharge an employee.” Ibid. Gram does not explicitly define good cause, as it was clear in that case that Gram was fired without such cause. Elsewhere, Massachusetts courts have consistently defined good cause (occasionally referred to as “just” or “due” cause) as the existence of either “(1) a reasonable basis for employer dissatisfaction with a new employee, entertained in good faith, for reasons such as lack of capacity or diligence, failure to conform to usual standards of conduct, or other culpable or inappropriate behavior, or (2) grounds for discharge reasonably related, in the employer’s honest judgment, to the needs of [its] business. Discharge for a ‘[good] cause’ is to be contrasted with discharge on unreasonable grounds or arbitrarily, capriciously, or in bad faith.” G & M Employment Serv., Inc. v. Commonwealth, 358 Mass. 430, 435 (1970), appeal dismissed sub nom. G & M Employment Serv., Inc. v. Department of Labor & Indus., 402 U.S. 968 (1971). See Klein v. President & Fellows of Harvard College, 25 Mass. App. Ct. 204, 208 (1987); Goldhor v. Hampshire College, 25 Mass. App. Ct. 716, 723 (1988). See also Losacco v. F.D. Rich Constr. Co., 992 F.2d 382, 384-385 (1st Cir.), cert. denied, 510 U.S. 923 (1993); Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1176 (1st Cir. 1996). Honest judgment is assessed in the context of “the general principles that an employer is entitled to be motivated by and to serve its own legitimate business interests; that an employer must have wide latitude in deciding whom it will employ in the face of the uncertainties of the business world; and that an employer needs flexibility in the face of changing circumstances. We recognize the employer’s need for a large amount of control over its work force.” Fortune v. National Cash Register Co., 373 Mass. at 101-102. See Siles v. Travenol Labs., Inc., 13 Mass. App. Ct. 354, 359 (1982). It is uncontested that Scudder terminated York, along with thirty-five other employees, as part of a cost-cutting initiative. Further, York admits that he has no basis to say that Scudder’s decision to terminate him was not reasonably related to Scudder’s honest judgment of the needs of its business. Nonetheless, York claims that by acknowledging that it laid him off as part of a cost-cutting initiative, Scudder essentially confessed to firing him so that it could keep his incentive compensation, and therefore, a material factual issue exists for the jury. Cost-cutting, however, is a legitimate business reason on which to base a termination for cause. See, e.g., Karcz v. Luther Mfg. Co., 338 Mass. 313, 320 (1959) (“Discharges because of economic conditions on a nondiscriminatory basis must be regarded as for ‘just cause’ ”); Amoco Oil Co. v. Dickson, 378 Mass. 44, 47-48 (1979) (collecting cases); Losacco v. F.D. Rich Constr. Co., supra at 385 (“Appellant has directed us to, and we have found, no cases involving just cause which prohibit economically-motivated terminations”). Indeed, Fortune v. National Cash Register Co., 373 Mass. at 102, recognized the legitimacy of an employer’s business reasons for terminating employees. Scudder’s nondiscriminatory discharge of York, for cost-cutting reasons, falls within the definition of good cause. No doubt that whether a termination was for good cause commonly presents a fact question for the jury, see Goldhor v. Hampshire College, supra at 722; however, on this record, there would be no room for a jury to infer that York’s termination was not for grounds “reasonably related, in the employer’s honest judgment, to the needs of [its] business.” G & M Employment Serv., Inc. v. Commonwealth, supra at 435. Contrast Maddaloni v. Western Mass. Bus Lines, Inc., 386 Mass. 877, 882 (1982) (allowing recovery under Fortune and Gram where evidence permitted an inference that termination was not for the legitimate business reasons posited by the employer). Despite his claim, York, during his deposition, admitted that he has no basis to contend that Scudder terminated him for the purpose of depriving him of sales incentive compensation. Because there is no basis for a jury to infer that he was not fired for good cause, York has no reasonable expectation of successfully proving his claim under Gram, and summary judgment was properly allowed. Next, the judge properly granted summary judgment on York’s claim of misrepresentation. York states that he worked diligently to acquire clients, relying on Cassidy’s representation that he would receive incentive compensation for those clients. York, however, testified at his deposition that Scudder did not make false representations to him during his employment. Additionally, in his response to Scudder’s statement of undisputed facts, York “admitted] that he is unaware of particular statements made by Scudder or Zurich Scudder employees that such employees knew were false at the time they made them.” Bound by these admissions, York had no reasonable expectation of proving his misrepresentation claim. Finally, York’s quantum meruit claim was properly rejected. Both York

Richard Gasior vs. Massachusetts General Hospital. Suffolk. January 3, 2006. May 11, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, S osman, & Cordy, JJ. Employment, Discrimination. Anti-Discrimination Law, Handicap, Termination of employment, Damages. Damages, Under anti-discrimination law, Punitive. Statute, Construction. Practice, Civil, Survival of action. Survival of Action. This court concluded, pursuant to the Massachusetts survival statute, G. L. c. 228, § 1, that a claim that an employee was wrongfully dismissed in violation of G. L. c. 151B, § 4 (16), survives the employee’s death [648-653], as do all of the remedies available to the employee under G. L. c. 151B, including punitive damages [653-656], Civil action commenced in the Superior Court Department on June 19, 2001. A motion to dismiss was heard by Bonnie H. MacLeod, J., and a question of law was reported by her. The Supreme Judicial Court granted an application for direct appellate review. Shannon Liss-Riordan for the plaintiff. Frank E. Reardon {John R Puleo with him) for the defendant. The following submitted briefs for amici curiae: Jonathan J. Margolis & Robert S. Mantell for Massachusetts Employment Lawyers Association. Beverly I. Ward for Massachusetts Commission Against Discrimination. Marshall, C.J. We consider in this case whether an employee’s claim of unlawful employment termination in violation of G. L. c. 15IB, § 4 (16), survives the employee’s death and, if so, what damages may be awarded. The employee, Richard Gasior, filed a complaint against his employer, Massachusetts General Hospital (MGH), claiming it had violated G. L. c. 15IB, § 4, and the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 103, by refusing to permit him to return to work as a plumber after an authorized medical leave of absence. While the case was pending, Gasior died for reasons unrelated to his authorized medical leave. MGH thereupon moved to dismiss the action on the grounds that Gasior’s discrimination claim did not survive his death, and that his MERA claim was barred by the exclusivity provision of G. L. c. 151B. A judge in the Superior Court denied MGH’s motion to dismiss the discrimination claim insofar as Gasior claimed compensatory damages, but allowed its motion as to that claim insofar as he claimed punitive damages. She also allowed MGH’s motion as to Gasi- or’s MERA claim. On a joint motion of the parties, the judge then reserved and reported to the Appeals Court pursuant to Mass. R. Civ. R 64, as amended, 423 Mass. 1410 (1996), so much of her ruling as concerned Gasior’s discrimination claim: “Does an employment discrimination claim under G. L. c. 151B, § 4, survive the plaintiff’s death pursuant to G. L. c. 228, § 1, insofar as the plaintiff claims compensatory but not punitive damages?” We granted Gasior’s application for direct appellate review. We address the narrow question presented by the circumstances of this case, not the broader question reported by the judge. See McStowe v. Bornstein, 377 Mass. 804, 805 n.2 (1979) (“Reported questions need not be answered . . . except to the extent that it is necessary to do so in resolving the basic issue”). We conclude that a claim that an employee was wrongfully dismissed in violation of G. L. c. 151B, § 4 (16), survives the employee’s death. We therefore affirm so much of the order as denied MGH’s motion to dismiss. We further conclude that all of the remedies available to the employee under G. L. c. 15 IB survive his death. We therefore vacate so much of the judge’s decision that allowed MGH’s motion to dismiss as to punitive damages. 1. Background. The issue for our consideration is the correctness of the interlocutory order entered in the Superior Court on MGH’s motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). See McStowe v. Bornstein, supra. Although MGH challenges some of the factual allegations in Gasior’s complaint, in particular the circumstances of Gasior’s efforts to return to work as a plumber, we review the question under the settled standard of review for a motion to dismiss pursuant to rule 12 (b) (6): “We take as true ‘ “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor ...” Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). In evaluating the allowance of a motion to dismiss, we are guided by the principle that a complaint is sufficient “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96, 98 (1977) ....’” Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004). Under the “generous principles” that govern our review, Connerty v. Metropolitan Dist. Comm’n, 398 Mass. 140, 143 (1986), we summarize the facts alleged in the unverified complaint. Gasior worked as a plumber for MGH for nineteen years, beginning in 1981. In February, 2000, he began an authorized medical leave of absence because of a heart condition. A physician approved Gasior’s return to work in August, 2000. Gasior claims that from that time forward he was able to perform the essential functions of his job as a plumber “with or without reasonable accommodation,” and that despite repeated attempts to return to his job as a plumber, MGH refused to permit him to return to work at that time, notwithstanding that MGH had posted several openings for plumbers. In June, 2001, after exhausting his administrative remedies by filing a claim with the Massachusetts Commission Against Discrimination, Gasior filed a complaint in the Superior Court. He requested relief consisting of reinstatement, back pay, front pay, lost benefits, emotional distress damages, punitive damages, and attorney’s fees and costs, and any other relief to which he might be entitled. At some point while his action was pending, Gasior became terminally ill. He filed motions to advance his trial date, but died in September, 2003, one week before the trial was scheduled to begin. 2. Survival of the discrimination claim. We first discuss the survival of Gasior’s G. L. c. 151B claim under the Massachusetts survival statute, G. L. c. 228, § l. We then turn to the issue of the relief that may be available. The Massachusetts survival statute, G. L. c. 228, § 1, provides in pertinent part that, “[i]n addition to the actions which survive by the common law,” certain enumerated claims, including certain specifically identified tort claims, survive the death of a party. A claim of employment discrimination in violation of G. L. c. 151B, § 4 (16), is not a claim among those specifically enumerated in the statute. To remain viable after Gasior’s death, therefore, the claim must fall within one of the enumerated tort claims or be deemed an action that survives “by the common law.” G. L. c. 228, § 1. Generally speaking, at common law contract claims, including those based on an implied contract, survive the death of a party. See Rendek v. Sheriff of Bristol County, 440 Mass. 1017 (2003); McStowe v. Bornstein, supra at 806-807, and cases cited. We have not previously decided whether a claim of discrimination pursuant to G. L. c. 151B survives a plaintiff’s death. In other circumstances, in assessing whether a claim survives a party’s death, we have observed that “[w]hat constitutes a contract claim has not been rigidly defined.” Rendek v. Sheriff of Bristol County, supra at 1017. We have also recognized the close relationship between some employment discrimination claims and actions for what we have characterized as breaches of contract. See id. at 1017-1018 (claim for unlawful termination in violation of G. L. c. 35, § 51, is “contractual, or quasi contractual,” and therefore survives plaintiff’s death, because statute “control[s] a critical term of the employment — permissible grounds for termination”). See also Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 582 (2004) (Sosman, J., concurring) (“some discrimination claims are ‘rooted’ in theories of contract [in essence reading the prohibitions of G. L. c. 151B into the parties’ employment contract and then allowing suit for ‘breach’ of that contract]”). In this case, we are presented with a specific question of alleged discrimination: does the claim of a plaintiff who has an established employment relationship with the defendant and who alleges that he was wrongfully dismissed or not reinstated by his employer, survive the plaintiff’s death? The answer turns in part on the nature of the employment relationship. Gasior claimed that he had a “good work record” and received “positive performance evaluations” while working at MGH, but his complaint is otherwise silent as to any other aspect of his employment relationship with MGH. Gasior has not, for example, alleged the existence of an employment contract for a definite period, or that he was a member of a union protected by any collective bargaining agreement that might govern his termination. We therefore assume, without deciding, that he was an at-will employee at MGH. See Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). See also S.C. Moriearty, J.F. Adkins, L.F. Rubin, & D.J. Jackson, Employment Law § 2.3, at 94 (2d ed. 2003) (“Presumptively the employment relationship is at-will, meaning that either party may terminate the relationship at any time, with or without cause”). Although we have not characterized every at-will employment relationship as itself constituting a form of contract — such a relationship could, for example, be viewed as a contract of successive performances of indefinite duration — we have had no difficulty in concluding that an at-will employment relationship contains implied terms, the breach of which is actionable. See, e.g., DeRose v. Putnam Mgt. Co., 398 Mass. 205, 210 (1986) (permitting at-will employee to recover damages on a breach of contract theory for discharge in violation of public policy); Fortune v. National Cash Register Co., 373 Mass. 96, 101 (1977) (written contract for at-will employment “contains an implied covenant of good faith and fair dealing, and a termination not made in good faith constitutes a breach of the contract”). See also Jackson v. Action for Boston Community Dev., Inc., supra at 9 (recognizing that prohibition against discrimination in employment contained in G. L. c. 151B, § 4, restricts employer’s ability to discharge at-will employee). Here, the relevant provisions of G. L. c. 15 IB controlled a term of Gasior’s employment at MGH: that term prohibited MGH from dismissing or refusing to reinstate him because of invidious, discrimination. See G. L. c. 151B, § 4 (16). Because Gasior has alleged that MGH did not permit him to return to work after his medical leave in violation of this implied contractual term of his employment relationship with MGH, his claim is among those that survive “by the common law.” See Rendek v. Sheriff of Bristol County, supra. See also United States v. Burke, 504 U.S. 229, 247-248 (1992) (Sauter, J., concurring) (Tide VB’s statutory ban on employment discrimination “easily envisioned as a contractual term implied by law”); Hishon v. King & Spalding, 467 U.S. 69, 74 (1984) (“Once a contractual relationship of employment is established, the provisions of Title VII attach and govern certain aspects of that relationship”). Our holding that a claim by an employee that he suffered invidious discrimination when he was dismissed or not reinstated by his employer survives his death is consistent with the decisional law of the majority of courts that have considered analogous questions. See, e.g., Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 (1984) (former employee’s claim that employer refused to permit him to return to work following a disabling accident, in violation of § 504 of the Rehabilitation Act of 1973, survives his death); Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 n.3 (4th Cir. 1985) (former employee’s claim that he had been terminated in violation of Age Discrimination in Employment Act [ADEA] survives his death as matter of Federal law); Hawes v. Johnson & Johnson, 940 F. Supp. 697, 704 (D.N.J. 1996) (former employee’s claim of constructive discharge in violation of the ADEA and the New Jersey law against discrimination survives his death as a matter of Federal common law and under State survival statute, respectively); Duart v. FMC Wyo. Corp., 859 F. Supp. 1447, 1451 n.2 (D. Wyo. 1994) (former employee’s claim that he had been terminated from employment in violation of the ADEA survives his death); Shkolnik v. Combustion Eng’g, Inc., 856 F. Supp. 82, 88 (D. Conn. 1994) (former employee’s claim that he had been terminated from employment in violation of the ADEA survives his death); Anspach v. Tomkins Indus., Inc., 817 F. Supp. 1499, 1510 (D. Kan. 1993) (former employee’s Title VII claim survives his death under State survival statute); Small v. American Tel. & Tel. Co., 759 F. Supp. 1427, 1430 (W.D. Mo. 1991) (former employee’s claim that he was discriminated against and ultimately terminated because of his race, in violation of Title VII and 42 U.S.C. § 1981, survives his death under State survival statute); Oliver v. United States Army, 758 F. Supp. 484, 485 (E.D. Ark. 1991) (former employee’s claim that his employer failed to accommodate his disability in violation of the Rehabilitation Act, leading him to terminate his employment, survives his death pursuant to State survival statute); Worsowicz v. Nashua Corp., 612 F. Supp. 310, 312 (D.N.H. 1985) (former employee’s claim that he had been terminated from employment in violation of the ADEA survives his death); Pedreyra v. Cornell Prescription Pharmacies, Inc., 465 F. Supp. 936, 939 (D. Colo. 1979) (former employee’s claim that she was terminated in violation of Title VII survives her death pursuant to State survival statute). We conclude that Gasior’s claim that MGH violated G. L. c. 151B, § 4 (16), by dismissing or refusing to reinstate him following an authorized medical leave, survives his death. We turn next to the issue of damages. 3. Survival of punitive damages. Relying on Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212, 216-217 (1979), the judge concluded that Gasior could recover compensatory damages, but that there was “no doubt” that Gasior’s claim for punitive damages abated because it is “punitive rather than compensatory in nature.” We recognize that the purpose of punitive damages has been described as punishment and deterrence, rather than compensation of an injured party, see, e.g., Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-267 (1981), citing Restatement (Second) of Torts § 908 (1979), and — in the context of G. L. c. 151B — as not merely vindicating personal rights, but comprising part of a scheme to vindicate a “broader public interest in eradicating systemic discrimination.” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563 (2004). Consistent with the broad remedial purposes of G. L. c. 151B, which both mandates that the provision concerning remedies available to the victims of discrimination be construed liberally for the accomplishment of the statute’s purposes, G. L. c. 151B, § 9, and acts as a deterrent to those employers who engage in invidious discrimination, we conclude that to the extent a deceased plaintiffs discrimination claim survives him, he should have available to him all of the remedies provided under the antidiscrimination statute. This includes punitive damages. See G. L. c. 15IB, § 9 (petitioner may be awarded “actual and punitive damages”); Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 624 (2005) (punitive damages may be awarded for employment discrimination in violation of G. L. c. 151B). We see no reason to distinguish as to statutory remedies between a plaintiff who has suffered the indignities of unlawful discrimination (if proved) and who survives, and a similarly aggrieved plaintiff who is deceased, simply because the exigencies of court scheduling may delay the granting of relief until after the plaintiffs death. As Gasior noted, individuals claiming unlawful discrimination must first exhaust their administrative remedies, see G. L. c. 151B, § 9, and their cases sometimes take years to reach resolution. It would cause grave injustices to those plaintiffs who have embarked on the often burdensome and expensive journey to vindicate their rights if the full scope of their damages were to evaporate simply because of the fortuity of death. Our conclusion is consistent with the broad remedial purposes underlying this Commonwealth’s antidiscrimination statutes, which we have repeatedly emphasized in construing G. L. c. 151B. See, e.g., Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 390 (2005) (statutory limitations on tort liability of charitable entities do not “shield charitable institutions from the full effects of liability under G. L. c. 151B”); Bain v. Springfield, 424 Mass. 758, 763 (1997) (Commonwealth and its political subdivisions are liable for damages for violations of G. L. c. 151B); Conway v. Electro Switch Corp., 402 Mass. 385, 387 (1988) (damage award for lost future earnings and benefits, or “front pay,” available pursuant to G. L. c. 151B, § 9). The Legislature has provided for a broad range of remedies, including the availability of punitive damages, to those who suffer invidious discrimination. See G. L. c. 151B, § 9. In determining whether Gasior’s estate should be deprived of damages to which he himself would have been entitled had he survived, “we need not look beyond the words of the statute where the language is plain and unambiguous.” State Bd. of Retirement v. Boston Retirement Bd., 391 Mass. 92, 94 (1984). Our decision that Gasior may have access to all of the remedies available under G. L. c. 15IB is also consistent with the Legislature’s determination that the “remedies provision contained in § 9 expressly states that it should be ‘construed liberally for the accomplishment of’ the purposes of G. L. c. 151B and that ‘any law inconsistent with any provision [of G. L. c. 15 IB] shall not apply.’ ” Ayash v. Dana-Farber Cancer Inst., supra at 391-392, quoting G. L. c. 151B, § 9. 4. Conclusion. A claim that an employee was wrongfully dismissed in violation of G. L. c. 151B, § 4 (16), survives the employee’s death, as do all of the remedies available to him under G. L. c. 151B. We affirm so much of the judge’s order as denied MGH’s motion to dismiss, and vacate so much of her order as allowed MGH’s motion as to punitive damages. The case is remanded to the Superior Court for entry of an order consistent with this opinion. So ordered. following Richard Gasior’s death, his attorney moved to substitute Gasi- or’s estate as the plaintiff. The motion is pending resolution of this appeal. For ease of reference we shall refer to the plaintiff as Gasior. As noted above, Gasior also alleged that MGH had violated his rights under the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 103. The judge allowed MGH’s motion to dismiss as to that claim, but did not report that aspect of her order to the Appeals Court. We therefore do not consider it. We acknowledge the amicus briefs filed by the Massachusetts Commission Against Discrimination and the Massachusetts Employment Lawyers Association. General Laws c. 228, § 1, provides: “In addition to the actions which survive by the common law, the following shall survive: — “(1) Actions under chapter two hundred and forty-seven; “(2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury;

<bold>1. Appeal and Error — appealability —</bold> <bold>discovery order — some documents protected, some not</bold> <bold>— immediately appealable</bold> <block_quote> 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.</block_quote> <bold>2. Discovery — emails — attorney-client</bold> <bold>privilege — inapplicability</bold> <block_quote> 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.</block_quote> <bold>3. Discovery — emails — attorney-client</bold> <bold>privilege — applicability</bold> <block_quote> 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.</block_quote><page_number>Page 407</page_number> <bold>4. Discovery — attorney-client privilege —</bold> <bold>applicability</bold> <block_quote> 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 an

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