Hewes, et al. v. Langston
| Docket Number: | 1999-IA-00646-SCT Linked Case(s): 1999-M-00646 ; 1999-IA-00646-SCT ; 1999-IA-00646-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-11-2003 Opinion Author: Cobb, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Appointment of justices - Miss. Const. section 145B - Discovery - Attorney-client privilege - M.R.E. 502(b) - Work product doctrine - M.R.C.P. 26(b)(3) - Crime-fraud exception - M.R.E. 502(d) Judge(s) Concurring: Pittman, C.J., Smith, P.J. and Carlson, J. Non Participating Judge(s): Waller and Diaz, JJ. Dissenting Author : Easley and Graves, JJ. Dissenting Author : McRae, P.J. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 04-07-1999 Appealed from: Hinds County Circuit Court Judge: Tomie Green Disposition: Ordered the Appellant to provide provide attorney Cynthia Langston with a number of documents which they claimed to be privileged. Case Number: 98601CIV |
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| Note: | The motion for rehearing was denied in this case by order issued July 10, 2003. The original opinions are withdrawn, and these opinions are substituted therefor. | |
| Party Name: | Attorney Name: | |||
| Appellant: | George P. Hewes, III and Brown & Williamson Tobacco Corporation |
MICHAEL W. ULMER
WILLIAM F. GOODMAN, JR.
LEAH D. McDOWELL, JR.
MARGARET STEWART OERTLING
W. WAYNE DRINKWATER
DAVID W. CLARK
LAKE TINDALL |
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| Appellee: | George P. Hewes, III and Brown & Cynthia Langston | TERI DUNAWAY GLEASON JEFFERY P. REYNOLDS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Appointment of justices - Miss. Const. section 145B - Discovery - Attorney-client privilege - M.R.E. 502(b) - Work product doctrine - M.R.C.P. 26(b)(3) - Crime-fraud exception - M.R.E. 502(d) |
| Summary of the Facts: | The motion for rehearing is denied, and these opinions are substituted for the original opinions. Attorney George Hewes, III and the Brown & Williamson Tobacco Corporation seek review of orders by the Hinds County Circuit Court compelling them to provide attorney Cynthia Langston with a number of documents which they claim to be privileged. |
| Summary of Opinion Analysis: | Issue 1: Appointment of justices In her motion for rehearing, Langston argues that the Governor should have appointed two special justices to participate in deciding this appeal, since Justices Waller and Diaz elected not to participate. Section 145B of the Mississippi Constitution provides that five justices constitute a quorum of the Court. Even with two justices electing not to participate, there remain seven justices, more than a quorum, to consider this case. Not only would requiring appointments in such cases impose a burden and expense on the state and place demands on the Governor which the Constitution never intended, but such an interpretation could in closely controverted cases, where a single vote will be decisive, place the ultimate power to adjudicate with the executive branch rather than with the judiciary. The appointment of a special justice is appropriate where the Court lacks a quorum and where the parties are unable to agree in the selection of special justices to hear a case. Issue 2: Discovery Hewes and B&W argue that the 29 items at issue are protected by the attorney-client privilege and the work product doctrine. The privilege under M.R.E. 502(b) covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client including communications made by the client to the attorney and by the attorney to the client. The privilege extends to statements made in multiple party cases in which different lawyers represent clients who have common interests. The work product doctrine under M.R.C.P. 26(b)(3) protects an attorney’s thoughts, mental impressions, strategies, and analysis from discovery by opposing counsel even if the party seeking discovery makes a showing of substantial need and undue hardship. M.R.E. 502(d) creates several exceptions to the attorney-client privilege including the “crime-fraud” exception. The Fifth Circuit’s test for determining whether the crime-fraud exception applies to materials protected by the work product doctrine includes a prima facie showing of a violation sufficiently serious to defeat the work product privilege and a finding by the court of some valid relationship between the work product under subpoena and the prima facie violation. A review of the documents in question shows that Langston has failed to meet her burden of proving that a crime or fraud has actually occurred. Item 2, a file memorandum prepared by Hewes, is not discoverable because an attorney’s memorandum to the office file and other attorneys, noting conversations with third parties, is protected by the work product doctrine. Item 25, a legal research memo, is not discoverable because research undertaken by an attorney to respond to a client’s request falls within the purview of the attorney-client privilege. Items 46 through 68, itemized bills reflecting services Hewes rendered to B&W over nearly a three-year period along with his DayTimer entries from which the bills were created, are not discoverable because these itemized legal bills necessarily reveal strategies, confidential communications, and the thought processes behind the representation and thus fall within the privilege. Items 23, 26, 30, 31, 35, 36, and 37 which include letters, draft affidavits, and other correspondence circulated among defense counsel on matters of common interest are protected under the “common interest” prong of the attorney-client privilege as well as under the work product doctrine. |
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