Hewes v. Langston, 1999-IA-00646-SCT.

• Decision Date: 19 June 2003
• Docket Number: No. 1999-IA-00646-SCT.,1999-IA-00646-SCT.
• Parties: George P. HEWES, III and Brown & Williamson Tobacco Corporation v. Cynthia LANGSTON.
• Court: Mississippi Supreme Court

848 So.2d 800

George P. HEWES, III and Brown & Williamson Tobacco Corporation v. Cynthia LANGSTON.

No. 1999-IA-00646-SCT.

Supreme Court of Mississippi.

June 19, 2003.

Rehearing Denied July 10, 2003.

Michael W. Ulmer, William F. Goodman, Jr., Leah D. McDowell, Jr., Margaret Stewart Oertling, W. Wayne Drinkwater, David W. Clark, Lake Tindall, Jackson, attorneys for appellants.

Teri Dunaway Gleason, Jeffery P. Reynolds, Jackson, attorneys for appellee.

EN BANC.

COBB, Justice, for the Court.

¶ 1. This is the second time this interlocutory appeal has been before this Court with the same issue for review. Attorney George P. Hewes, III and the Brown & Williamson Tobacco Corporation (B & W) 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.

¶ 2. For purposes of an in camera inspection by the trial court, the documents were divided into 68 numbered "Items,"¹ with some of the Items containing multiple documents. After the in camera inspection, the trial judge concluded that 38 of the Items were not discoverable, but ordered the remaining 30 Items to be turned over to Langston, finding "that the documents reviewed are relevant to the issues raised in Plaintiff's complaint and are therefore discoverable." From that order, Hewes and B & W sought and were granted permission to bring this interlocutory appeal. See M.R.A.P. 5.

¶ 3. Hewes and B & W subsequently withdrew their objection to Item 38, a letter and draft affidavit from Alan Perry (Hewes's original counsel in this action), to Richard Roberts, counsel for Mike Miller, Langston's ex-husband. Further, Item 23 is a chronology of events with numerous attachments. The trial judge concluded that the chronology of events, itself, was not discoverable but that the attachments to the chronology were discoverable. Hewes and B & W withdrew their objection to most of the attachments to Item 23, but maintained their objection to one of the letters that was part of the attachments, Item 23/Page 183. Thus on appeal, of the original 30 Items, there remain 29 at issue.

¶ 4. When this interlocutory appeal was first before us, we determined that the trial court's findings of fact and conclusions of law were insufficient for a meaningful review, and we remanded the case to the trial court to enter "findings of fact and conclusions of law regarding each of the twenty-nine items as to which discovery is now contested." After further findings by the trial court, this interlocutory appeal is now before us for a second time with the same issue for review:

DID THE CIRCUIT COURT ERR IN ORDERING HEWES TO PRODUCE TWENTY-NINE ITEMS OF PRIVILEGED MATERIALS?

¶ 5. To more effectively discuss this issue, we have divided this issue into the following subsections:

A. Application of the Attorney-Client Privilege, the Work Product Doctrine, and the Crime-Fraud Exception

B. The Trial Court's in Camera Review of the Materials at Issue

C. Findings of Fact and Conclusions of Law Regarding Each of the Twenty-nine Items as to which Discovery is now Contested.

¶ 6. Concluding that the trial court erred in determining that all of the 29 Items were discoverable, we reverse and remand.

FACTS

¶ 7. In 1996, Cynthia Langston served as counsel for the plaintiffs in Butler v. Phillip Morris, Inc., a wrongful death action filed in the Jones County Circuit Court against tobacco manufacturers. While that litigation was ongoing, Langston was in the process of divorcing her then husband, Mike Miller, who was a manager for BellSouth Telecommunications. Langston accused Miller of using his position at Bell-South to improperly access her telephone records. Langston further alleged that sometime before the divorce was finalized, Miller contacted George P. Hewes, III, an attorney with the law firm of Brunini, Grantham, Grower & Hewes, PLLC (the Brunini firm), which represented the tobacco companies, claiming to have proof of improper ex parte contact between Langston and Circuit Judge Billy Joe Landrum, the presiding judge in the tobacco case. Approximately one year later, the defendants in the tobacco case successfully pursued Judge Landrum's disqualification from that case.

¶ 8. Subsequently, Langston came into possession of a letter, written on the letterhead of the Phelps Dunbar, LLP law firm, that accused Hewes and two attorneys with Phelps Dunbar of communicating with Miller about Langston's private telephone conversations regarding the tobacco litigation. The letter was signed "haunted friend"; however, the attorney whose printed name appeared on the official stationery, by affidavit, denied any knowledge of or involvement in the production of the letter.

¶ 9. In June 1998, Langston filed the present suit in the Hinds County Circuit Court against BellSouth, B & W (and its parent corporations) and the Brunini firm, as well as Hewes and Miller individually, alleging negligence, conspiracy to invade privacy and negligent infliction of emotional distress. During discovery, Langston sought to compel Hewes to produce numerous documents which Hewes claimed were privileged. After reviewing the documents in camera, the trial judge concluded that thirty-eight of the Items were not discoverable, but thirty were, and ordered that they be produced. Hewes filed an interlocutory appeal, and the trial court stayed the order pending our review.

¶ 10. Because the trial judge's initial order requiring Hewes and B & W to produce the documents was general in nature and did not make findings of fact and conclusions of law as to why each of the Items were discoverable, this Court was unable to conduct a proper review. For that reason, we remanded this case to the trial court to complete that task.

¶ 11. On remand, the trial judge entered a six-page order which responded to our request. It contained a lengthy explanation of the facts and history of the case, and, generally, of the applicable law. However, we were not provided any specific explanation of the trial judge's basis for concluding why certain documents were discoverable and others were not. Having now reviewed the documents and trial judge's response, we reverse and remand.

STANDARD OF REVIEW

¶ 12. The application of privilege is properly a mixed question of law and fact, with the circuit court's factual findings reviewed for clear error and its interpretation of the law reviewed de novo. United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.1994).

DISCUSSION

¶ 13. While in the past we have entertained interlocutory appeals concerning questions of privilege where there were "arguably a question of law or law application, within the meaning of [M.R.A.P. 5]," we have categorically rejected the "wholesale granting of interlocutory appeals of civil discovery disputes." Haynes v. Anderson, 597 So.2d 615, 617 (Miss.1992) (quoting In re Knapp, 536 So.2d 1330, 1333 (Miss.1988) ("Pre-trial discovery is governed by flexible rules well within the administrative capacity of our trial courts")). In Haynes we noted that application of privilege should be considered by the trial court "using a case by case, item by item approach." Haynes, 597 So.2d at 619. Accordingly, in Haynes we ultimately remanded the case due to the trial court's failure to explain whether the materials at issue were privileged work product subject to an exception or whether they were not actually considered work product at all. Id. at 620.

¶ 14. Hewes and B & W argue that all 29 Items at issue are protected by the attorney-client privilege or the work product doctrine. Langston responds that the documents are not so protected, and even if they were, they would fit within the crime-fraud exception to the privilege.

A. Application of the Attorney-Client Privilege, the Work Product Doctrine, and the Crime-Fraud Exception

Attorney-Client Privilege

¶ 15. "The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby to promote broader public interests in the observance of law and administration of justice." Id. at 389, 101 S.Ct. 677. "That purpose, of course, requires that clients be free to make full disclosure to their attorneys." United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989).

¶ 16. In its version of the attorney-client privilege, Mississippi follows the uniform rule adopted by a majority of the states. Rule 502(b) of the Mississippi Rules of Evidence explains the privilege² as follows:

(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of a client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

Miss. R. Evid. 502(b) (emphasis added). This Court has interpreted the scope of the attorney-client privilege under Mississippi law broadly, stating:

the privilege relates to and covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client. Included are communications made by the client to the attorney and by the attorney to the client. In that

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