Hewes v. Langston

848 So. 2d 800, 2003 Miss. LEXIS 300, 2003 WL 21403738
CourtMississippi Supreme Court
DecidedJune 19, 2003
DocketNo. 1999-IA-00646-SCT
StatusPublished

This text of 848 So. 2d 800 (Hewes v. Langston) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hewes v. Langston, 848 So. 2d 800, 2003 Miss. LEXIS 300, 2003 WL 21403738 (Mich. 2003).

Opinions

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 Plaintiffs 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 [802]*802letter 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 28 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 Lang-ston 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 [803]*803parent 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tsai-Son Nguyen v. Excel Corp.
197 F.3d 200 (Fifth Circuit, 1999)
In Re Grand Jury Subpoena
220 F.3d 406 (Fifth Circuit, 2000)
In Re Santa Fe International Corp.
272 F.3d 705 (Fifth Circuit, 2001)
Clark v. United States
289 U.S. 1 (Supreme Court, 1933)
Hickman v. Taylor
329 U.S. 495 (Supreme Court, 1947)
Upjohn Co. v. United States
449 U.S. 383 (Supreme Court, 1981)
United States v. Zolin
491 U.S. 554 (Supreme Court, 1989)
United States v. Albert A. Goldfarb
328 F.2d 280 (Sixth Circuit, 1964)
United States v. Dominick E. Bartone
400 F.2d 459 (Sixth Circuit, 1969)
Southern Railway Company v. Carl Talmadge Lanham
403 F.2d 119 (Fifth Circuit, 1969)
United States v. Jesse Ray Pipkins
528 F.2d 559 (Fifth Circuit, 1976)
United States v. T. Windle Dyer
722 F.2d 174 (Fifth Circuit, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
848 So. 2d 800, 2003 Miss. LEXIS 300, 2003 WL 21403738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hewes-v-langston-miss-2003.