George P. Hewes, III v. Cynthia Langston

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-IA-00646-SCT

GEORGE P. HEWES, III AND BROWN &
WILLIAMSON TOBACCO CORPORATION
v.
CYNTHIA LANGSTON

ON MOTION FOR REHEARING

DATE OF JUDGMENT: 04/07/1999
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: MICHAEL W. ULMER
WILLIAM F. GOODMAN, JR.
LEAH D. McDOWELL, JR.
MARGARET STEWART OERTLING
W. WAYNE DRINKWATER
DAVID W. CLARK
LAKE TINDALL
ATTORNEYS FOR APPELLEE: TERI DUNAWAY GLEASON
JEFFERY P. REYNOLDS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 09/11/2003
MOTION FOR REHEARING FILED: 07/02/2003; Denied 07/10/2003
MANDATE ISSUED: 07/17/2003

EN BANC.

COBB, JUSTICE, FOR THE COURT:

¶1. 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original opinions are withdrawn, and these opinions are substituted therefor.
¶2. 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.

¶3. 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.

¶4. 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

1
Each group of documents has an Item number, sequentially numbered from 1 to 68.
Also, each page of each document has a Bates number, beginning with GPH 000001, and
ending with GPH 000514. Of the 68 Items, only 29 are before this Court on appeal. For the
sake of clarity, we refer to each document at issue simply by its Item number. However,
where an Item contains multiple documents, which need to be distinguished from each other,
we refer to it by its Item and Bates number(s), for example: Item 23/Pages 184-85.

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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.

¶5. 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?

¶6. 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.

¶7. Concluding that the trial court erred in determining that all of the 29 Items were

discoverable, we reverse and remand.

FACTS

¶8. 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

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her then husband, Mike Miller, who was a manager for BellSouth Telecommunications.

Langston accused Miller of using his position at BellSouth 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.

¶9. 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.

¶10. 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

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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.

¶11. 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.

¶12. 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

¶13. 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

¶14. Prior to addressing the merits of this appeal, we first consider Langston’s contention

that the Governor should have appointed two special justices to participate in deciding this

appeal. Justices Waller and Diaz elected not to participate in this case. In her motion for

rehearing, Langston argues that under Article 6, Section 165 of the Mississippi Constitution

the Governor should have appointed two special justices to hear the case, “to assure that the

Court maintained a full complement of justices.” One of these vacancies, that of Justice

5
Diaz, was the result of Langston’s choice of Richard F. Scruggs for representation in this

case. Attached to her motion is a copy of a petition to the Governor urging these

appointments for rehearing.

¶15. Certainly, under proper circumstances, the Governor may make appointments of

special justices. Langston is incorrect, however, in her belief that any time fewer than nine

justices participate in a case the Governor must, under Section 165 of the Constitution,

appoint special justices to fill out a “full complement of justices.”

¶16. Even with two justices electing not to participate, there remain seven justices, more

than a quorum of the Court, to consider this case. Section 165 of the Constitution should not

be read in isolation. Section 145B provides that five justices constitute a quorum of the

Court. Most recently, the Court addressed this question in its unpublished but recorded

orders entered in Rein v. Benchmark Construction Co., No. 2001-CA-01885-SCT (Miss.

Jan. 3, 2003) and Doe v. Stegall, No. 2001-CA-1674-SCT (Miss. Jan. 3, 2003.) In those

cases, Presiding Justice McRae in an order recusing himself solicited the appointment by the

Governor of a special justice to sit in his stead. Due to the unusual nature of the request for

the special appointments, the Court, en banc, reconsidered the matter and issued its orders

holding that such appointments are not needed.

¶17. In PERS v. Hawkins, 781 So. 2d 899 (Miss. 2001), all justices recused in a case

brought by former Chief Justice Hawkins, and the parties agreed on five special justices,

who were appointed by the Supreme Court, to determine the case. Addressing the

constitutional and jurisdictional question of this panel’s authority, it was said:

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 This panel of Special Justices constitutes a quorum of the Court and has full
jurisdiction and authority pursuant to Article 6, Section 145B and Section 165
of the Mississippi Constitution to decide all issues raised by the filing of the
Petition of Interlocutory Appeal by Public Employment Retirement System of
Mississippi (PERS). . . .

Hawkins, 781 So. 2d at 900.

¶18. A similar question was raised in Carter v. State, No. 97-CT-01468-SCT (Miss. Jan.

28, 2001), where the appellant sought recusal of Justice Easley and the referral of the case

to the Governor for appointment of a special justice under Section 165. There, Justice Easley

had elected not to participate before the motion for recusal was filed, and the recusal motion

was dismissed as moot. Then the Court, by unpublished but recorded order, found that

“there is a quorum of the Court sufficient to decide the case,” and denied the request for

referral to the Governor.

¶19. In Slush v. Patterson, 201 Miss. 113, 29 So. 2d 311 (1947), the Court had before it

on suggestion of error a case in which the trial court was reversed. The case was decided by

a three to two vote during a time when the Court had six members. The appellee then raised

the point that during the period when the case was considered and decided one member of

the Court was absent due to illness. Holding that sitting without the absent justice was not

error, the Court addressed the argument that the Governor should have been asked to appoint

a special justice:

The commonly recognized definition of a quorum is that it is such a number
of a body as is competent to transact business in the absence of the other
members. 35 Words and Phrases, Perm.Ed., p. 672 et seq.

Acting upon this express authority, our Supreme Court during the entire
course of the thirty years since the amendment [increasing the Court to six
justices] has always proceeded with the business of the Court when as many

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 as four members are present and participating, and in the same manner as if
those present comprised the entire membership of the Court, and because
during the thirty years there has never been a time when less than four
members were present and participating, we have never within that period
made a request upon the Governor to appoint a special judge for the
Court. We have considered that the delay and expense incident to special
appointments were a material consideration in the incorporation of the
quoted language in the amendment, and we have conformed to its purpose.

In the year immediately next following the adoption of the amendment,
the case of Brewer v. Browning, 115 Miss. 358, 76 So. 267, L.R.A.1918F,
1185, Ann.Cas.1918B, 1013, was decided with five Judges participating--one
Judge disqualified. The decree of the Chancery Court was reversed by the
vote of three Judges, two voting for an affirmance. A case by case search
through the eighty volumes of our official reports since that time will disclose
that not less than a dozen cases have been disposed of under the same
procedure, consistently followed for more than a quarter of a century.

It is too late now to consider that all those cases were decided
without constitutional authority, because reversed by the vote of three
instead of four Judges, and we hereby expressly bring forward and affirm
what was said on the subject by Smith, C. J., in response to the suggestion of
error in Dean v. State, 173 Miss. 254, at pages 309 and 310, 160 So. 584, 162
So. 155.

Slush, 201 Miss. at 132, 29 So. 2d at 311 (emphasis supplied).

¶20. It is quite common for justices of this Court to elect for various reasons not to

participate in cases, whether or not parties file motions seeking recusal, and for reasons of

conscience or other reasons which may not, by law, disqualify them. It is estimated that

there are as many as 500 occasions per year in which a justice will not participate in a case.

Langston’s interpretation of Section 165 would require special appointments in each of these

instances, interfering with the orderly consideration of cases with a negative impact on the

cohesiveness of the established Court. To require appointments in every such situation

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would additionally impose a burden and expense on the state and place demands on the

Governor which the Constitution never intended.

¶21. Furthermore, 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. A more invidious possibility is that of parties creating

opportunities to recuse justices and then seeking appointments of more favorable

replacements. This seems to be more frequent in recent years and is an evil to which the

Court must be ever vigilant.

¶22. In her motion for rehearing, Langston relies heavily upon and quotes at length from

Presiding Justice McRae’s dissent, presenting no new arguments that were not previously

considered by the Court. Concerning the appointment of special justices, she relies entirely

on Presiding Justice McRae’s position which the Court has frequently rejected. His position

has been thoroughly considered by this Court in his repeated efforts to obtain appointment

of special justices where he was required to disqualify himself.

¶23. Presiding Justice McRae recused in the Rein and Doe cases due to the interest in

those cases of his daughter who is a lawyer and her lawyer husband, Shane Langston. He

also was required to recuse in other cases due to that relationship. See the discussion of

Stephens v. The Equitable Life Assurance Society, No. 2002-CA-498-SCT (Miss.); Owens

Corning v. Altria roup, Inc., No. 2001-CA-1285-SCT (Miss.); Lane v. R. J. Reynolds

Tobacco Co., No. 2001-CA-384-SCT (Miss.) and The Equitable Life Assurance Society v.

Irving, No. 2002-TS-513-SCT (Miss.), in the Chief Justice’s Separate Statements issued with

the Court’s orders in Rein and Doe. In each of those cases, Presiding Justice McRae wrote

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to the Governor suggesting the appointment of a special justice. The Governor has made no

such appointments.

¶24. Today we reiterate the long standing application of Section 165. The appointment of

a special justice to this Court 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. However, so

long as the Court has a quorum to conduct business, such an appointment is not authorized

by our Constitution. Therefore, we consider the merits of the appeal.

¶25. 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.

¶26. 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.

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

Attorney-Client Privilege

¶27. “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. “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).

¶28. 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.

2
Even though Rule 502 is actually entitled “Lawyer-Client Privilege”, in the present
case the parties and the trial judge refer to the privilege by its more common name, attorney-
client privilege. Thus we will do so as well.

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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 sense it is a two-way
street.

Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984) (emphasis added). Further: “[t]he

privilege does not require the communication to contain purely legal analysis or advice to

be privileged.” Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991)

(applying Mississippi law). “Instead, if a communication between a lawyer and client would

facilitate the rendition of legal services or advice, the communication is privileged.” Id. at

875.

¶29. A significant part of the attorney-client privilege for purposes of this appeal is the

“common interest” privilege, as set forth in Miss. R. Evid. 502(b)(3). According to the

comment to the rule: “The privilege extends to statements made in multiple party cases in

which different lawyers represent clients who have common interests.” Miss. R. Evid. 502

cmt.

The Work Product Doctrine

¶30. The work product doctrine protects an attorney’s thoughts, mental impressions,

strategies, and analysis from discovery by opposing counsel. Hickman v. Taylor, 329 U.S.

495, 510-11, 67 S. Ct. 385, 393, 91 L. Ed 451 (1947). As the Supreme Court said:

Historically, a lawyer is an officer of the court and is bound to work for the
advancement of justice while faithfully protecting the rightful interests of his
clients. In performing his various duties, however, it is essential that a lawyer

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 work with a certain degree of privacy, free from unnecessary intrusion by
opposing parties and their counsel. Proper preparation of a client's case
demands that he assemble information, sift what he considers to be the
relevant from the irrelevant facts, prepare his legal theories and plan his
strategy without undue and needless interference. That is the historical and the
necessary way in which lawyers act within the framework of our system of
jurisprudence to promote justice and to protect their clients' interests. This
work is reflected, of course, in interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and countless
other tangible and intangible ways--aptly though roughly termed . . . as the
"Work product of the lawyer."

Hickman, 329 U.S. at 510-11, 67 S. Ct. at 393. “Not even the most liberal of discovery

theories can justify unwarranted inquiries into the files and mental impressions of an

attorney.” Id. at 510. Further, “[t]he work product privilege is very different from the

attorney-client privilege.” Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir.

1989). It “does not exist to protect a confidential relationship but to promote the adversary

system by safeguarding the fruits of an attorney’s trial preparations from the discovery

attempts of an opponent.” Id. at 382. Without this privilege, “[i]nefficiency, unfairness and

sharp practices would inevitably develop in the giving of legal advice and in the preparation

of cases for trial.” Hickman, 329 U.S. at 511.

¶31. Rule 26(b)(3) of the Mississippi Rules of Civil Procedure explains the work product

doctrine as follows:

(3) Trial Preparation: Materials. Subject to the provisions of subdivision
(b)(4) of this rule, a party may obtain discovery of documents and tangible
things otherwise discoverable under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for trial by or for another party or by
or for that other party's representative (including his attorney, consultant,
surety, indemnitor, insurer, or agent) 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. In ordering discovery of such

13
 materials when the required showing has been made, the court shall protect
against disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning the
litigation.

Miss. R. Civ. P. 26(b)(3) (emphasis added).

¶32. Langston argues that a party seeking discovery of work product materials can do so

by showing a “substantial need” for the materials and the inability to obtain substantially

equivalent materials without “undue hardship.” However, as Hewes points out, this is a

misstatement of the law. Even if the party seeking discovery makes a showing of substantial

need and undue hardship, pursuant to the rule, “the court shall protect against disclosure of

the mental impressions, conclusions, opinions, or legal theories of an attorney.” Miss. R.

Civ. P. 26(b)(3) (emphasis added).

Crime-Fraud Exception

¶33. Rule 502(d) of the Mississippi Rules of Evidence creates several exceptions to the

attorney-client privilege. One such exception, relevant to the case sub judice, is what has

been termed the “crime-fraud” exception, which the rules of evidence explain as follows:

(d) Exceptions. There is no privilege under this rule:
(1) Furtherance of Crime or Fraud. If the services of the lawyer were sought
or obtained to enable or aid anyone to commit or plan to commit what the
client knew or reasonably should have known to be a crime or fraud. . . .

Miss. R. Evid. 502(d)(1).

¶34. Although this Court apparently has not spoken as to whether the crime-fraud

exception applies to the work product doctrine, the Fifth Circuit has held that it does, as have

the Second and Third Circuits. See In re Int'l Sys. & Controls Corp. Sec. Litig., 693 F.2d

1235, 1242 (5th Cir. 1982); In re John Doe Corp., 675 F.2d 482, 492 (2d Cir. 1982); In re

14
Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979). The Fifth Circuit has adopted

a two-part test for determining whether the crime-fraud exception applies to materials

protected by the work product doctrine: (1) there must be a prima facie showing of a

violation sufficiently serious to defeat the work product privilege, and (2) the court must find

some valid relationship between the work product under subpoena and the prima facie

violation. In re Int'l Sys., 693 F.2d at 1242.

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

¶35. Hewes and B&W argue that there was no evidence of a crime or fraud, and the trial

judge made no finding of a crime or fraud; therefore, it was improper for the judge to have

reviewed the documents, even in camera, absent such a finding. Langston disagrees,

claiming there is proof of a conspiracy, and the crime-fraud exception eliminates any

privilege otherwise afforded by the documents at issue.

¶36. Before a trial judge may engage in an in camera review, the party seeking disclosure

must show “a factual basis adequate to support a good faith belief by a reasonable person,”

that in camera review will show the applicability of the exception. Zolin, 491 U.S. at 572.

The evidentiary burden that the party seeking disclosure must meet before in camera review

is appropriate is therefore significantly less than is needed to actually overcome the privilege

itself. Id. Once a party seeking disclosure of allegedly privileged materials sets forth a

prima facie case that the crime-fraud exception applies, the decision of whether to engage

in an in camera review is committed to the sound discretion of the trial court. Id.

¶37. Langston's Motion to Compel states that Hewes had meetings with Miller; that

Langston's phone records were accessed improperly; that Miller worked for BellSouth at the

15
time the phone records were accessed; that all of these events took place at suspicious times

during the course of the Butler litigation; and that they evidenced a conspiracy to gain access

to her private records and those of the trial judge in Butler.

¶38. Based on these allegations and arguments, and the fact that Hewes apparently had a

role in the removal of the trial judge in the tobacco litigation, we conclude that a reasonable

person could believe in good faith that an in camera review of the documents in question

could show whether the crime-fraud exception was applicable. Zolin, 491 U.S. at 572.

Therefore, the circuit court did not abuse its discretion in reviewing the documents in

camera.

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

¶39. The circuit court initially inspected the documents in camera and concluded that

some of the documents should be produced, but it did not provide any rationale for its

decision as to why some documents were privileged and others were not. On remand, the

trial court once again has failed to provide this Court with sufficient information for effective

review. For that reason, we are precluded from reviewing the decision of the trial court for

clear error and will instead conduct a de novo review of the documents at issue to determine

whether they are protected or not.

¶40. Langston argues that the assertions of privilege were defeated primarily because the

documents fit within the crime-fraud exception. (The prima facie case for establishing the

crime-fraud exception carries a higher burden than the prima facie case for getting an in

camera review of disputed documents.) The former requires proof that the crime or fraud

16
actually occurred. The latter just requires sufficient proof of a crime or fraud such that a

review of the documents would reveal whether they were protected. Zolin, 491 U.S. at 572.

Having carefully reviewed all of the documents at issue, individually, we conclude that

none of the documents supports Langston’s claim that Hewes conspired with Miller to access

Langston’s telephone records. We further conclude that Langston has failed to meet her

burden of proving that a crime or fraud has actually occurred. Thus, the crime-fraud

exception is not applicable.

¶41. We turn next to the determination of whether the documents at issue are protected by

the attorney-client privilege or the work product doctrine.

Item 2: A file memo by Hewes concerning his May 1996 encounter
with Miller in downtown Jackson.

¶42. Item 2 is a file memorandum prepared by Hewes, dated May 6, 1996, that describes

a chance encounter when Hewes “bumped into” Miller in downtown Jackson, and Miller

voluntarily indicated he wanted to “get back in touch” with Hewes. Hewes argues that an

attorney’s memorandum to the office file and other attorneys, noting conversations with third

parties, is protected by the work product doctrine. We agree, particularly with regard to the

content of this Item. In fact, such memos receive even greater protection because they

necessarily reveal the attorney’s mental impressions. Upjohn, 449 U.S. at 400-02. They

may be obtained through discovery only in rare situations, and upon a far stronger showing

than for other work product documents. Id. Langston has failed to meet that burden here.

Thus, Item 2 is not discoverable, and the trial court erred in determining otherwise.

Item 25: A legal research memo to Hewes

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¶43. Item 25 is a legal research memo, dated February 20, 1998, prepared by a Brunini law

firm associate for Hewes. Hewes correctly argues that research undertaken by an attorney

to respond to a client’s request falls within the purview of the attorney-client privilege. See

Nguyen v. Excel Corp., 197 F.3d 200, 206 (5th Cir. 1999). As such, the trial court erred in

determining that Item 25 was discoverable.

Items 47-68 (excepting Items 51 and 54): Itemized billing records and
corresponding DayTimer entries

¶44. Langston sought production of all itemized bills reflecting services Hewes rendered

to B&W in the course of the Butler case, over nearly a three-year period, along with his

DayTimer entries from which the bills were created. The trial court ordered all but two of

the itemized bills produced. Hewes points out that the court gave no explanation or reason

in making that determination. In fact, Hewes contends that the two excepted Items, 51 and

54, are identical in type to Items which the court ordered produced.3 Further, Hewes claims

he has already redacted and produced all references in the billing records to communications

with Miller and has testified at length regarding those meetings.

¶45. Although this Court has not dealt with this specific issue, courts in other jurisdictions

have. In Clarke v. American Commerce Nat'l Bank, 974 F.2d 127 (9th Cir. 1992), the

Ninth Circuit discussed the criteria it uses in determining whether billing records are

discoverable:

3
Because those two billing records are not before this Court, we can neither confirm
nor deny that allegation. Also, the trial judge has given us no hint as to why two of the
monthly billing statements were protected, but the rest were not.

18
 the identity of the client, the amount of the fee, the identification of payment
by case file name, and the general purpose of the work performed are usually
not protected from disclosure by the attorney-client privilege. However,
correspondence, bills, ledgers, statements, and time records which also
reveal the motive of the client in seeking representation, litigation strategy,
or the specific nature of the services provided, such as researching
particular areas of law, fall within the privilege.

Id. at 129 (citations omitted & emphasis added). See also Chaudhry v. Gallerizzo, 174 F.3d

394, 403 (4th Cir. 1999) (holding that billing records which identified specific statutes being

researched were privileged). While a simple invoice ordinarily is not privileged, itemized

legal bills necessarily reveal confidential information and thus fall within the privilege. As

one court explained:

billing records describing the services performed for his clients and the time
spent on those services, and any other attorney-client correspondence relating
to the performance of legal services and the rates therefor . . . may reveal the
client’s motivation for seeking legal representation, the nature of the services
provided or contemplated, strategies to be employed in the event of litigation,
and other confidential information exchanged during the course of the
representation.

In re Horn, 976 F.2d 1314, 1317-18 (9th Cir. 1992).

¶46. Hewes argues that the billing statements, along with their DayTimer entries at issue,

describe the identities of parties to conversations and correspondence, and the dates and

subject matter of legal research performed by Hewes for his client over a period of nearly

three years. After reviewing of the billing statements and DayTimer entries, we agree. The

documents at issue do not merely indicate the client’s name, the amount of payment, and the

general nature of the work performed. Instead, the documents detail an hour-by-hour

rendition of the work performed for a client over a three-year period. These documents

detail, by name, the people with whom Hewes talked, and the topics they discussed. These

19
documents describe the subjects that Hewes researched and the papers he reviewed. These

descriptions necessarily reveal strategies, confidential communications, and the thought

processes behind the representation. Allowing discovery of these documents would, in

effect, allow Langston to be the proverbial “fly on the wall” of the Brunini firm.

¶47. It should be further noted that the Mississippi Bar apparently views detailed billing

statements as privileged and confidential. Ethics Opinion No. 246, rendered April 8, 1999,

prohibits an attorney from producing billing statements to third parties auditors without the

informed consent of the client. The Mississippi Bar concluded:

In summary, it is the opinion of the Committee that an attorney may ethically
. . . provide a detailed billing statement to a third party legal auditing service
for review only with the informed consent of the insured and that consent may
not be requested by the lawyer if a disinterested lawyer would conclude that
the client should not agree to such disclosure.

Miss. Bar, Ethics Opinion No. 246 - Independence of Counsel: Third Party Auditor.

¶48. We conclude that the billing statements and DayTimer entries are the type of detailed

statements that are protected by the work product doctrine, and the trial court erred in

ordering them produced.

Items 23 (attachment, page 183 only): 26, 30, 31, 35, 36, and 37:
Various correspondence and attachments, including draft affidavits,
circulated among Butler defense counsel and Alan Perry

¶49. Hewes points out that all of these documents are letters, draft affidavits, and other

correspondence circulated among defense counsel in Butler, or this action, on matters of

common interest. Thus, these documents are protected under the “common interest” prong

of the attorney-client privilege as well as under the work product doctrine. Hewes further

argues that only attorneys involved either in the Butler case, or this case, have had access

20
to any of these communications. With the exception of the attachment to Item 23/Page 183,

all of these documents were generated after Langston asserted her claims of wrongdoing and

were in response to actual or anticipated litigation. We agree that they are protected by the

work product rule and the “common interest” prong of the attorney-client privilege, and it

was error for the trial court to order these documents produced.

CONCLUSION

¶50. It is not the intention of this Court to make a habit of conducting de novo review of

items challenged during discovery. As a general rule, we have declared that we are “not

about to become involved in the wholesale granting of interlocutory appeals of civil

discovery disputes.” Haynes, 597 So. 2d at 617 (citing In re Knapp, 536 So. 2d at 1333).

However, we went further in Knapp and carved out a limited exception, saying that “[i]f the

matter thought privileged is ordered disclosed and is in fact disclosed, our later reversal

would be founded on the Humpty Dumpty syndrome.” 536 So. 2d at 1333. The present case

is another in which Humpty Dumpty could not be put back together again, had we not

granted interlocutory relief.

¶51. The trial court had two opportunities to conduct an item by item review and ruling,

but did not. Thus, we undertook that responsibility in this case, not only to avoid another

time-consuming remand to the trial court, but also to clarify this Court’s position with regard

to review of such discovery challenges. In Haynes, we said that “the trial court should deal

with each matter in the file on an item by item basis.” Haynes, 597 So. 2d at 620. However,

the contents of the file were not before the Court in Haynes, and thus the interlocutory

appeal was denied. In the present case, we do have the challenged documents before us.

21
After reviewing the documents item by item, we conclude that all of the documents at issue

fall within either the attorney-client privilege or the work product doctrine and thus it was

error for the trial court to order them produced.

¶52. We reiterate that when objections to discovery of specific documents are made, the

trial court should deal with each on an item-by-item basis, carefully considering each

objection, deciding whether to allow discovery, and stating the rule or exception which

provides the basis for the decision.

¶53. For these reasons, the circuit court's orders compelling production of the 29 Items are

reversed, Langston's motion to compel production of the 29 Items is denied, and this case is

remanded to the circuit court for further proceedings consistent with this opinion.

¶54. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., AND CARLSON, J., CONCUR. EASLEY AND
GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. McRAE,
P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. WALLER AND DIAZ,
JJ., NOT PARTICIPATING. WALLER, J., RESPONDS TO PRESIDING JUSTICE
McRAE’S DISSENT WITH SEPARATE WRITTEN STATEMENT JOINED BY
PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ.

McRAE, PRESIDING JUSTICE, DISSENTING:

¶55. As my objection to the order executed July 10, 2003, in this case has already stated,

this is just another classic example of the "majority caucus" activity at this Court which

undermines the administration of justice and casts a shadow upon this Court's reputation and

integrity. The "majority caucus" faced with the opportunity to pass upon the merits and

application of Miss. Constitution, Art. 6, § 165 has chosen to ignore our State's highest law

in the Mississippi Constitution. The majority alleges that the Slush v. Patterson, 201 Miss.

22
113, 29 So.2d 311 (1947), "five vote" rule supports its decision. They are sadly mistaken

as a closer look at not only Slush, but also Dean v. State, 173 Miss. 254,162 So. 155 (1935),

and Brewer v. Browning, 115 Miss. 358, 76 So. 519 (1917), casts serious doubts on the

majority's "five vote" rule. The majority even goes so far as to state that Governor is not

“constitutionally authorized” to appoint a special justice, unless a quorum does not exist to

rule upon a particular case. If our forefathers wanted or intended such an interpretation, then

they would have said so. Suffice it to say, this Court does not have authority to restrict the

clear constitutional power vested in the Governor by Art. 6, § 165 which places no such

restrictions on his appointment power or the litigants' right to agree to a substitute the justice.

Additionally, the majority’s failure to afford Langston the rights and protections provided

by Art. 6, § 165 deprives her of her rights to due process of law and equal protection of the

laws. Lastly, on motion for rehearing, the majority refuses to see that the application of the

crime/fraud exception is supported by the record and the confidential in camera documents

disclosed to the trial court and this Court for review. I dissent to the underhanded tactics

and manipulative procedures employed by the majority during this motion for rehearing, the

majority's failure to uphold the supreme law of our State, and the majority's erroneous

findings with regard to the application of the crime/fraud exception to the confidential in

camera documents. The majority's having an emergency “en banc” and voting to preclude

the litigants and the Governor from appointing substitute justices and entering an order with

opinions to follow is disingenuous.

¶56. As a preliminary matter, I would like to respond to the "formal response" which was

sent to the Governor by the "majority caucus" following their premature Order concerning

23
the Governor's power to appoint a special justice when a Justice is recused or not

participating in a proceeding. The "formal response;" or as the "majority caucus" likes to call

it the "response letter;" was sent to the Governor without circulation within this Court and

without notice given to myself. The "formal response" contained personal statements

concerning myself and the views I have expressed concerning the issues presented on this

appeal. Specifically, the "majority caucus" attacked my assertions that the Governor does

have Constitutional power to appoint special justices in situations such as this, where the

recusal or non-participation of a Justice has an effect on the outcome of the proceeding. I

find it more than curious that the "majority caucus" has chosen to circumvent the circulation

procedures of this Court in an attempt to discredit my views before the publication of this

opinion.

¶57. The procedures and manipulative tactics employed by this Court on the motion for

rehearing are astonishing and abominable. According to our Internal Operating Procedure

and statute, this Court is currently on a writing break with no published opinions or regularly

scheduled en banc conference. Despite our own Internal Operating Procedure, the "majority

caucus" has decided to circumvent the rules and order an "emergency" en banc on a motion

for rehearing which could certainly have been prescribed the same treatment as all other

motions for rehearing. As alluded to in my Objection to the July 10, 2003 order, the

"minority" of this Court, as labeled by the "majority caucus", was not notified of the

"emergency" en banc set for July 10, 2003, at 9:30 a.m. until Wednesday, July 9, 2003, at

3:30 p.m. Before the en banc began, it was discovered that on Wednesday, Chief Justice

Pittman, and Justices Smith, Waller, Cobb, and Carlson, the "majority caucus", met

24
separately to discuss this case and made a determination as to the outcome without an en

banc or vote ever having been conducted. During en banc, the "majority caucus"

acknowledged that the "emergency" en banc was just a "formality." As under the "five vote"

rule in Slush, the majority had indeed already decided the outcome of the proceedings and

had central legal staff (Pool) draft an order which as documented by our internal computer

system was completed at 9:31:17(sec.) a.m. on Wednesday, exactly twenty-four hours before

en banc was scheduled, for release at 1:30 p.m. on Thursday.

¶58. Justice Waller; a member of the "majority caucus" which met to decide the outcome

of the case on Wednesday, is recused from this case. Despite his recusal, Justice Waller and

the "majority caucus" attempt to justify his participation by describing the proceedings as an

"administrative matter". Despite the majority's assertions, there should be no such thing as

an "administrative participation". There is nor should there be no participation of a Justice,

if he or she is recused. When a Justice involves himself in the deliberations of a case,

whether they be procedural or substantive, he is still affecting the merits of the case. The

"appearance of impropriety" still looms for which recusal and non-participation is not only

necessary but mandated by our own Code of Judicial Conduct. Miss. Code. Jud. Cond.

Canons 1, 2, & 3. The Preamble to the Code of Judicial Conduct even states that "[i]ntrinsic

to all sections of this Code are the precepts that judges, individually and collectively, must

respect and honor the judicial office as a public trust and strive to enhance and maintain

confidence in our legal system." In line with this purpose, this Court has found that "[t]he

participation of the recused person in the selection of a replacement may itself raise

questions of impropriety." Nelson v. State, 626 So.2d 121, 125 (Miss.1993) (citing Ferry v.

25
State, 245 Ga. 698, 267 S.E.2d 1 (1980)) (such practices violates the Code of Judicial

Conduct). In addition, this Court has explained that "the provisions of § 9-1-105(1) should

be used in all instances where there is a recusal and the entry of the appointing order requires

the participation of a judge who is recused." Id. Under these familiar standards, this Court

has found error when a recused trial judge appoints a special judge to sit in his place.

Banana v. State, 638 So.2d 1329, 1331 (Miss. 1994). It is without question that if a judge

is forbidden from participating in the appointment of a judge to proceed over matters for

which he is recused and/or not participating, then that judge is also forbidden from blocking

the appointment of a replacement judge to preside over that which he is recused. These

same principles must apply to the Supreme Court. Justice Waller, who is listed as not

participating in this proceeding, should not be allowed to block the appointment of a

replacement in these proceedings by citing his power to participate in an “administrative

matter.” If a recused trial judge attempted to "administratively" participate on a case and

thereby transfer or block the transfer of the proceedings to another jurisdiction or judge under

the guise of an “administrative matter,” he would be before this Court in no time on

discipline charges. Why, then is it, that we continue to allow the Justices of this Court to do

the same?

¶59. The recusal of Justice Waller on this motion for rehearing is also supported by the

circumstances of the present proceedings. Langston seeks this Court's invocation of Article

6, Section 165 of the Mississippi Constitution which provides for the Governor to appoint

a "special justice" when a justice of this Court has recused himself. Justice Waller is a

Brigadier General in the Mississippi National Guard. He was appointed by Governor Ronnie

26
Musgrove, the very person who under the present circumstances Langston seeks to appoint

"special justices" to this Court. What more of a conflict can one imagine, than the

participation of Justice Waller in a proceeding in which a litigant seeks a gubernatorial

appointment of a "special justice" to the Supreme Court?

¶60. Justice Waller makes $120,000 with per diem as a Justice, and it is assumed

somewhere around $80,000 with per diem as a Brigadier General. This makes him the

highest paid elected public official in the State. With his dual positions, Justice Waller

serves in two branches of government. As a Justice he is part of the Judicial Branch and as

a Brigadier General he is part of the Executive Branch, as his power in the militia is subject

to orders from the Governor. See Miss. Const. art. 5, § 119 (specifically stating "[t]he

governor shall be commander and chief of the army and navy of the state and of the militia,

except when they shall be called into the service of the United States."); Miss. Const. art. 9,

§ 217 (specifically providing that "[t]he governor shall be commander-in-chief of the militia,

except when it is called into the service of the United States, and shall have power to call

forth the militia to execute the laws, repel invasion and to suppress riots and insurrections.");

Miss. Const. art. 9, § 216 (specifically stating "[a]ll officers of militia, except non-

commissioned officers, shall be appointed by the governor, by and with the consent of the

senate . . . . "); Miss. Const. art. 9, § 218 (specifically providing "[t]he governor shall

nominate, and, by and with the consent of the Senate, commission one major-general for the

state . . . , and also one brigadier-general for each congressional district, who shall be a

resident of the district for which he shall be appointed, and each district shall constitute a

militia division."); and Miss. Const. art. 6, § 144 (specifically stating "[t]he judicial power

27
of the state shall be vested in a Supreme Court and such other courts as are provided for in

this constitution.") How is it that Justice Waller can participate in a matter not only where

he is "recused" on the merits, but where he also has an obvious conflict of interest as

Governor Musgrove, the one who Langston seeks to have appoint "special justices," is also

his commander-in-chief?

¶61. Of course, this is not the first time that Chief Justice Pittman, Justice Waller, and the

caucus of five have manipulated the system in what they deemed "administrative matters."

In Dillard v. Musgrove, 838 So.2d 261 (Miss. 2003), which involved a challenge to the

Supplemental Legislative Retirement Plan (SLRP) which bestowed upon Legislators and the

Lieutenant Governor supplemental benefits beyond the retirement benefits offered to all

other State employees, a similar tactical manipulation was used by the "majority caucus."

When Dillard initially came before the Court, Justice Waller listed himself as "not

participating," since Governor Musgrove, one of the defendants in the action, appointed

Justice Waller as a Brigadier General in the Mississippi National Guard.4 As discussed

above, with his dual positions, Justice Waller serves in two branches of the government. As

a Justice he is part of the Judicial Branch and as a Brigadier General he is part of the

Executive Branch as his power in the militia is subject to orders from the Governor. See

Miss. Const. Art. 5, § 119; Miss. Const. Art. 9, § 217; Miss. Const. Art. 9, § 216; Miss.

Const. Art. 9, § 218; and Miss. Const. Art. 6, § 114 Justices Cobb and Diaz also recused

themselves from the case since both would benefit from SLRP as former legislators.5

4
See Dillard v. Musgrove, 838 So.2d 261, 269-70 (Miss. 2003).
5
See id. at 261 & 266.

28
¶62. On appeal, the only issue before the Court was whether the trial court erred in

dismissing the action for lack of standing.6 The trial court did not address the merits of

SLRP; therefore, there was no need for this Court to address the merits of the proceedings

either.7 Presiding Justice Smith wrote the majority decision for the Court and originally only

secured four votes, those being himself, Chief Justice Pittman, Justice Carlson, and Justice

Graves. Justice Easley and I dissented. With only four votes it would have been a plurality

vote and not law. Presiding Justice Smith and Chief Justice Pittman were aware that the

majority would not be "law;" since under Slush, they have constitutionally claimed that five

votes are needed for a majority opinion.

¶63. During this time, the Legislature was in its 2003 session. Chief Justice Pittman had

many bills before the Legislature that he wanted passed , particularly his personal pay bill

for himself and other justices. These bills touched upon issues such as higher salaries for

Justices and the implementation of a state drug court. The state drug court was to be Chief

Justice Pittman's legacy for which he spoke openly and publicly about in an effort to secure

support. The Members of the Legislature whose support were critical to the passage of these

bills included Lieutenant Governor Amy Tuck and Speaker of the House Tim Ford, both of

whom benefit from SLRP. Even Governor Musgrove himself benefits from SLRP, as he too

is a former legislator. Chief Justice Pittman had numerous meetings concerning these bills

with Speaker Ford, Lt. Governor Amy Tuck, Governor Musgrove, and other key legislators

all of whom were interested in our opinion on their SLRP retirement. It against this

6
See id., at 262-63.
7
See id., at 262-63.

29
background that these facts, that Chief Justice Pittman went to Justice Waller and requested

that he get back into the Dillard case and participate.8 With a five to two vote, the majority

was secure in their opinion and pushed for an immediate February, 2003 hand down of the

case.

¶64. The contents of the opinions in Dillard are also important. Presiding Justice Smith,

in his majority opinion, did not stop at addressing the lack of standing issue before the Court,

but went further to address the constitutionality of the SLRP.9 I wrote a dissenting opinion

which found Dillard had standing to bring suit and also found that there were insufficient

facts in the record to make a determination as to the constitutionality of the SLRP.10 With this

opinion the Dillard majority made law and secured the legislators an extra retirement over

other public employees. I went on to attach an intra-office e-mail whereby Justice Waller

explained that he was changing his position from "not participating" to "participating" at the

request of Chief Justice Pittman.11 Chief Justice Pittman, in his concurring opinion,

admonished my attachment of Justice Waller's intra-office e-mail.12 Curiously enough,

Justice Cobb who had recused herself from the case due to her past legislative position,

decided to join in Chief Justice Pittman's concurrence citing her "authority" under "matters

8
See id. at 269-70.
9
See id. at 264-66.
10
See id. at 267-70.
11
See id. at 269-70.
12
See id. at 266.

30
of court administration".13 Justice Waller also wrote a concurrence defending his actions.14

He attempted to justify his actions, by stating that he was originally "not participating" which

is different from a "recusal".15 Not so.

¶65. In Dillard this Court was not even called upon to address the constitutionality of

SLRP, but the majority did it anyway with no regard to the financial implications of its

holding. The majority's holding in Dillard will no doubt cost millions of dollars out of the

general retirement fund since all legislators and Lieutenant Governors from 1989 forward

will receive retirement benefits from the Public Employees' Retirement System (PERS). It

is more than suspicious that, at a time when Chief Justice Pittman was lobbying support for

legislation, the Dillard case was pushed rapidly through the Court for hand down and Justice

Waller after a year and a half suddenly decided to "participate" in the merits of the case

when it was discovered that there were insufficient votes to make Presiding Justice Smith's

majority "law" and constitutional. What happened to only needing five Justices to decide

a case?

¶66. After the events in Dillard, I felt compelled to bring up for discussion the suspicious

events I had witnessed. In response, Justice Waller wrote a letter stating that he was not

appointed by the Governor, but by President Bill Clinton and confirmed by the U.S. Senate

and was not an employee of the Governor, and is merely a federal employee. Well, these

assertions are riddled with problems.

13
See id. at 266.
14
See id. at 266-67.
15
See id. at 267.

31
¶67. First of all, if it is true that Justice Waller's appointment was confirmed by the United

States Senate, and in order to be considered for such nomination, he had to first secure a

recommendation and "appointment" from the Governor. He serves at the will and pleasure

of the governor during his term. The Mississippi Constitution provides for the Governor to

be commander-in-chief of the militia, commonly referred to as the Mississippi National

Guard. See Miss. Const. art. 5, § 119 & art. 9, § 217. Under his power over the militia, the

Governor is vested with the authority to appointment a Brigadier General to the Mississippi

National Guard. See Miss. Const. art. 9, § 216 & § 218. Even though the Governor's

recommendation for Brigadier General must be confirmed by the Senate, it still nevertheless

an "executive appointment." Even our Chief Justice has recognized that Justice Waller’s

appointment was from Governor Musgrove. On February 1, 2000, Chief Justice Pittman sent

a mass e-mail to Supreme Court employees in which he recognized Justice Waller’s

appointment.16 Second, as a Brigadier General, Justice Waller is under the orders of the

Governor. Members of the National Guard are subject to the orders of the Governor. See

Miss. Const. art. 5, § 119 & art. 9, § 217. Third, even if Justice Waller's paycheck comes

from the federal government, he is still in violation of separation of powers since he is not

only an employee of the State but also the federal government. The Mississippi Constitution

provides that "[n]o person holding or exercising the rights or powers of any office or honor

or profit, either in his own right or as a deputy, or while otherwise acting for or in the name

or by the authority of another, under any foreign government, or under the government of the

16
See attached email.

32
United States, shall hold or exercise in any way the rights and powers of any office of honor

or profit under the laws or authority of this state, except notaries, commissioners of deeds,

and United States commissioners." Miss. Const. art. 14, § 266.

¶68. There is no valid argument which can justify the dual positions of Justice Waller. If

he is an employee of the State, then he is serving in two branches of State government which

is prohibited by the Mississippi Constitution, specifically Art. 1, § 1 & 2. In fact, Article 1,

§ 2 of the Mississippi Constitution provides that a person serving in one branch of

government who accepts an appointment in another branch of government must "vacate any

and all offices held by the person so accepting in either of the other departments." Likewise,

if Justice Waller is claiming to hold an office at the state level and the federal level, he is still

in violation of the Mississippi Constitution. As quoted above, Article 13, § 266 of the

Mississippi Constitution forbids the simultaneous holding of offices at the state and federal

level.

¶69. This Court is fraught with underhanded and manipulative processes. The "majority

caucus" rules the roost with little concern as to the appearance of impropriety and the

mandates of the Code of Judicial Conduct.

¶70. As to the merits of the motion for rehearing, the majority disregards the supreme law

of this State and holds that Miss. Const. Art. 6, § 165 is not applicable. In fact, the majority

even states that the Governor is not “constitutionally authorized” to appoint special justices

unless there is an absence of a quorum of this Court on a case. The majority rests its

assertions upon the theory that all that is needed for a majority vote to reverse the trial court

33
is a "vote of five" as alluded to in Slush, 201 Miss. 113, 29 So.2d 311. The majority's

reading of Slush is misleading.

¶71. In 1916, the Constitution was amended to change the composition of this Court from

three to six Justices. Miss. Const. art. 6, § 145A. Section 145A specifically provided, in

relevant part that:

The Supreme Court shall consist of six judges, that is to say, of three
judges in addition to the three provided for by section 145 of this
Constitution, any four of whom when convened shall form a quorum.

Miss. Const. art. 6, § 145A (emphasis added). Under this constitutional mandate, four out

of six Justices were required for a "quorum." As early as 1917, this Court was given an

opportunity to pass upon the application of Section 145A. In Brewer v. Browning, 115

Miss. 358, 76 So. 267 (1917) (Brewer I), this Court was called upon to determine the legal

status of an alleged adopted child as it pertained to her inheritance rights. Id. at 268-69. In

ultimately deciding the issues presented, only three members of the six member Court

formed the majority. Id. at 267-68. One member of the Court did not participate, and two

other members of the Court dissented. Id. at 273-79. It was upon these facts, that Brewer

v. Browning, 115 Miss. 358, 76 So. 519 (1917) (Brewer II), came before this Court. In

Brewer II, this Court failed to recognize the true mandates of Section 145A and instead

found that there was "no limitation in the Constitution on the power of the court to overrule

decisions, or change its decision when in the opinion of the court a former decision may be

erroneous or wrongful." Id. at 519.

34
¶72. Then in 1935, this Court again was given a chance to pass upon the application of

Section 145A in Dean,162 So. 155. In Dean, this Court stated that:

Counsel for the appellant, in another suggestion of error, says that
where the judges of this court are equally divided on the question of
error vel non in the rulings of the trial court, the judgment of that court
should be reversed; but all of us agree that this can only be done with
the concurrence of a majority of the judges. . . . .

Id. at 156 (emphasis added). Under this holding, at least four out of six Justices were

required to concur upon an issue in order to form a majority. Under this interpretation, a

nine Justice Court must have two thirds of its Justices concur in order to constitute a

majority. As such, six out of nine Justices are required to concur for the formation of a

majority. Regardless of the number of Justices which are participating on the case. It is of

no consequence that only seven or even six Justices are participating. Six Justices concurring

is still required.

¶73. Likewise, it was under Section 145A that this Court in 1947 in Slush, 201 Miss. 113,

28 So.2d 738, held the following:

During the period within which this case was submitted, considered
and decided one of the six members of the Court was absent because
of illness. The decree of the trial court was reversed by the
concurrence of three judges, two dissenting. Appellee raises the point,
and presents it in an interesting manner, that a decree or judgment is
not lawfully reversed except by the concurrence of a majority of the
entire Court–that three judges in banc are not empowered to order a
reversal.
The amendment to the Constitution of 1890 made in 1916, Sec. 145A,
which increased the membership of the Supreme Court to six Judges
contained the provision that, "any four of whom when empowered shall
form a quorum." The commonly recognized definition of a quorum is
that it is such a number of a body as is competent to transact business
in the absence of the other members. 35 Words and Phrases, Perm.Ed.,
p. 672 et seq.

35
 Acting upon this express authority, our Supreme Court during the entire
course of the thirty years since the amendment has always proceeded
with the business of the Court when as many as four members are
present and participating, and in the same manner as if those present
comprised the entire membership of the court, and because during the
thirty years there has never been a time when less than four members
were present and participating, we have never within that period made
a request upon the Governor to appoint a special judge for the Court.
...
In the year immediately next following the adoption of the amendment,
the case of Brewer v. Browning, 115 Miss. 358, 76 So. 267,
L.R.A.1918F, 1185 Ann.Cas.1918B, 1013 was decided with five judges
participating, one judge disqualified. The decree of the Chancery Court
was reversed by the vote of three Judges, two voting for an affirmation.
A case by case search through the eighty volumes of our official reports
since that time will disclose that not less than a dozen cases have been
disposed of under the same procedure, consistently followed for more
than a quarter of a century.
It is too late now to consider that all those cases were decided
without constitutional authority, because reversed by the vote of
three instead of four Judges. . . .

201 Miss. 116, 28 So.2d at 311-12 (emphasis added). As one can clearly see, this Court did

not hold; as the majority so finds; that the vote of three Justices constituted a majority.

Rather, what this Court did hold is that the vote of three was "without constitutional

authority;" however it was too late to reverse for such cause. Id.

¶74. Then in 1950, the Constitution was amended to once again change the composition

of this Court to nine Justices. Miss. Const. Art. 6, § 145B. Section 145B, in relevant part,

provides that:

The Supreme Court shall consist of nine judges, that is to say, of three
judges in addition to the six provided for by section 145A of this
Constitution, any five of whom when convened shall constitute a
quorum.

36
Miss. Const. art. 6, § 145B (emphasis added). Under the amendment, five out of nine

Justices are required for a "quorum." Miss. Const. art. 6, § 145B. Looking not only to the

case law, but also to the constitutional provisions themselves, one can clearly see that with

only five participating it is a plurality vote and nothing more.

¶75. The implication and application of Section 165 of the Mississippi Constitution is the

most important issue before this Court for consideration. Section 165 provides, in relevant

part, that:

Whenever any judge of the Supreme Court or the judge or chancellor
of any district in this state shall, for any reason, be unable or
disqualified to preside at any term of court, or in any cause where the
attorneys engaged therein shall not agree upon a member of the bar
to preside in his place, the governor may commission another, or
others, of law knowledge, to preside at such term or during such
disability or disqualification in the place of the judge or judges so
disqualified.

Miss. Const. art. 6, § 165. As an integral part of our original Constitution, Section 165 was

and still is supreme law. Only the people of this State have the power to alter, amend, and/or

abolish any portion of the Constitution. Miss. Const. art. 15, § 273. As the supreme law of

this State, any suggestion by the majority of this Court that judicial precedent is contrary and

superior to this constitutional section is a denial of the due process and equal protection

rights as she has been vested with and afforded the protections and application of Section

165 as a citizen of this State. Miss. Const. art. 3, §§ 14 & 32. By not giving Langston and

the other litigants notice of the recusal and/or non-participation of two Justices, the majority

denied Langston the right to assert and seek special appointment under Section 165. The

majority attempts to trivialize the notice requirement and dismiss the need for notice by

37
asserting that if notice was required under these circumstances, judicial delay would be

created since three to five hundred cases a year require Justice recusal or non-participation.

My response to this claim is that due process is not a matter of judicial economy, but a

matter of right. They delayed this case for over four years already. Their argument is

disingenuous. Under Section 165, Langston has not only a right to petition the Governor

for the appointment of a "special justice," when a Justice of this Court has recused himself

but attempt to get the other litigants to agree on substitutions. This right cannot be taken

away without due process of law. Additionally, under Hoskins v. Howard, 214 Miss. 481,

502, 59 So.2d 263, 271-73 (1952), the appointment of a special judge pursuant to Section

165 is necessary if the appointment of such judge could affect the outcome of the

proceedings.

¶76. It is also worth noting, that currently before this Court on Motion for Rehearing is the

case of Wise v. Valley Bank, -- So.2d -- , 2003 WL 21101211 (Miss. 2003). The Petitioners

in Wise also attempt to invoke Section 165 and claim that they were prejudiced by the

recusal and/or non-participation of a Justice. They argue that the outcome of the case could

have been different if nine Justices would have decided their case. One has to wonder, why

the rush to an "emergency" en banc in the present case, and not in the Wise case? I am of

the opinion that more litigants have been aggrieved by the manipulative affect of recusal

and/or non-participation of Justices so that the outcome is changed. Maybe if the legal

community opens its eyes to see the underhanded practices of the "majority caucus," then

eventually someone will convince this Court to change their beliefs or convince someone

else that a system of checks and balances is needed to ensure that Justice is indeed "blind."

38
 Interestingly enough, the "majority caucus" does not complain about the Governor's

appointment of Justice Carlson to the bench in 2002. Even the facts surrounding this

appointment seem more than a little sketchy. Justice Carlson and his wife own the

controlling shares of the Bank of Batesville. As a member of the banking industry, Justice

Carlson and Aubrey B. Patterson, Jr., the BankcorpSouth President, are "acquaintances" to

say the least. It is not a coincidence that Justice Carlson was appointed by the Governor,

since Aubrey Patterson, attorney Richard F. Scruggs, and Governor Ronnie Musgrove are

friends. It is also suspicious and causes concerns that Justice Carlson has not recused

himself from this case despite the fact that Scruggs is an attorney in this case. Perhaps there

was a higher calling since Langston is considered a trial lawyer and Patterson is diverse to

them.

¶77. As to the merits of Langston's claims regarding the application of the crime/fraud

exception to the confidential in camera documents, I stand by my original dissent. Since my

original dissent correctly analyzes the facts and law, I will not change one word and will only

restate its contents as an illustration of how convinced I am that the crime/fraud exception

applies.

¶78. This interlocutory appeal has been before this Court for over four years concerning

a pre-trial discovery matter. One can only wonder if the delay has been intentional. In the

present proceeding, the case has flipped twice. Justice Cobb won back the majority recently

after a Justice recused himself. It is of the utmost importance that Article 6, Section 165 of

the Mississippi Constitution be utilized here where so few Justices are participating in the

case. Under that provision, the Governor is given power to appoint a Special Justice "to

39
preside at such term or during such disability or disqualification in the place of the judge or

judges so disqualified." Miss. Const. art. 6, § 165.

¶79. The majority erroneously finds that the thirty documents, which the trial judge

reviewed in camera and ordered production, are protected by the attorney client and work

product privileges. The majority's findings are repugnant to the spirit of the privileges and

go against the very purpose of privilege protection. The trial court's order of production

should be affirmed. For this reason, I dissent.

FACTS

¶80. The majority fails to include many facts which are pertinent to this case. For this

reason, I will give a short rendition of those facts which were so cleverly deleted from its

opinion. This case involves the husband of an attorney for a litigant who allegedly accessed

her phone records and gave out the information to the attorney for the other side of the suit.

The defendants to this suit now assert the attorney client privilege, the work product

privilege, and the common interest privilege.

¶81. In 1994, during the tobacco litigation, Cynthia Langston (Langston) was involved in

a heated divorce proceeding with Mike Miller (Miller). Miller worked in management for

Bell South Telecommunications (Bell South) in Jackson, Mississippi. In the past, George

Hewes's (Hewes) daughter had worked under Miller at Bell South.

¶82. After the anonymous "haunted friend" letter came to light, Langston discovered that

Hewes and Miller had met on several occasions to discuss what both describe as possible ex

parte meetings between Langston and the Honorable Billy Joe Landrum (Judge Landrum),

40
the trial judge in the tobacco lawsuit.17 Evidence on the record reveals a sequence of events,

communications, and conversations concerning Miller and Hewes's contacts with one

another.

¶83. In 1996, while Miller and Langston were going through a divorce, Miller contacted

Hewes to discuss information "he might be interested in." When Hewes, Miller, and Charles

Adams, met for the first time they all claim to have had a thirty (30) to forty-five (45) minute

conversation in complete "hypotheticals." On the record, Hewes and Miller denied having

any further contact with one another in 1996, besides a happenstance meeting in downtown

Jackson.

¶84. Hewes admitted to contacting Miller in 1997 and having lunch with him to follow up

on their previous discussion. At this time, Miller told Hewes about his divorce settlement

and how he was not supposed to interfere with Langston's personal or business life.

Thereafter, Hewes volunteered to review the settlement agreement. After this, the two claim

to have had no further contact.

¶85. The thirty documents at issue reveal a quite different scenario than that claimed by

Hewes and Miller. The in camera documents reveal at least seventy-six and one tenth (76.1)

hours billed to Brown and Williamson Tobacco Co. (B&W) concerning contacts,

discussions, and information gathered from Miller. Numerous telephone conversations are

contained in the documents and other notations which may also involve information

17
Just one year after the alleged communications between Miller and Hewes began,
Hewes and Brown & Williamson Tobacco Co. successfully pursued Judge Landrum's
disqualification in the tobacco litigation.

41
exchanged between the two. In 1996 alone, when allegedly only one meeting took place,

nine notations appear in Hewes's billing statements to B&W concerning contacts with Miller

and discussions concerning information related to Miller. This is five more entries than

claimed by Hewes. Those nine entries in 1996 constituted thirty and one half (30.5) billed

hours to B&W. Furthermore, in 1997, Hewes's billing statements include ten entries

concerning contacts, conversations, and discussions with Miller totaling thirty and one half

(30.5) billed hours to B&W. A total of thirty-five (35) entries constitute seventy-six and one

tenth (76.1) billed hours to B&W.

¶86. During this two year period when the alleged contacts between Miller and Hewes took

place, Miller admits to accessing the phone records of Langston. He even admits that after

he was terminated by Bell South, the accessing of Langston's telephone records "greatly

diminished."

DISCUSSION

I. DID THE CIRCUIT COURT ERR BY CONDUCTING AN IN
CAMERA REVIEW OF THE DOCUMENTS IN QUESTION?

¶87. Even though the majority addresses the issue of whether the circuit court erred by

conducting an in camera review of the documents in question, it fails to state the accurate

standard to be applied by the trial court in making its decision with regard to whether in

camera review is appropriate. Hewes and B&W assert that United States v. Zolin, 491 U.S.

554, 109 S.Ct. 2619, 105 L. Ed. 2d 469 (1989) requires that "the party seeking discovery

must make a prima facie showing of a crime or fraud before the trial court can ever review

42
the privileged documents in camera."18 The majority agrees and finds that under Zolin in

camera review is appropriate "[o]nce a party seeking disclosure of allegedly privileged

materials sets forth a prima facie case that the crime-fraud exception applies . . . ." This

statement is entirely incorrect as Zolin only requires that a reasonable good faith belief be

shown that the crime fraud exception applies in order to invoke in camera review.

¶88. In Zolin, the United States Supreme Court addressed "whether in camera review at

the behest of the party asserting the crime-fraud exception is always permissible, or, in

contrast, whether the party seeking in camera review must make some threshold showing that

such review is appropriate." 491 U.S. at 570, 109 S.Ct. at 2630. The Supreme Court held

that:

In fashioning a standard for determining when in camera review is
appropriate, we begin with the observation that "in camera inspection . . . is
a smaller intrusion upon the confidentiality of the attorney-client relationship
than is public disclosure." Fried, Too High a Price for Truth: The Exception
to the Attorney-Client Privilege for Contemplated Crimes and Frauds, 64
N.C.L.Rev. 443, 467 (1986). We therefore conclude that a lesser evidentiary
showing is needed to trigger in camera review than is required ultimately
to overcome the privilege. Ibid. The threshold we set, in other words, need
not be a stringent one.
We think that the following standard strikes the correct balance. Before
engaging in in camera review to determine the applicability of the crime-
fraud exception, "the judge should require a showing of a factual basis
adequate to support a good faith belief by a reasonable person," Caldwell
v. District Court, 644 P.2d 26, 33 (Colo. 1982), that in camera review of the
materials may reveal evidence to establish the claim that the crime-fraud
exception applies.
Once that showing is made, the decision whether to engage in in
camera review rests in the sound discretion of the district court. The court
should make the decision in light of the facts and circumstances of the
particular case, including, among other things, the volume of materials the

18
This quote comes specifically from Brief of Appellant George P. Hewes, III.

43
 district court has been asked to review, the relative importance to the case of
the alleged privileged information, and the likelihood that the evidence
produced through in camera review, together with other available evidence
then before the court, will establish that the crime-fraud exception does apply.
...
The question remains as to what kind of evidence a district court may
consider in determining whether it has the discretion to undertake an in camera
review of an allegedly privileged communication at the behest of the party
opposing the privilege
....
The answer to that question in the first instance must be found in Rule
104(a), which establishes that materials that have been determined to be
privileged may not be considered in making the preliminary determination of
the existence of a privilege
....
In sum, we conclude that a rigid independent evidence requirement
does not comport with "reason and experience," Fed. Rule Evid. 501, and we
decline to adopt it as part of the developing federal law of evidentiary
privileges. We hold that in camera review may be used to determine
whether allegedly privileged attorney-client communications fall within the
crime-fraud exception. We further hold, however, that before a district
court may engage in in camera review at the request of the party opposing
the privilege, the party must present evidence sufficient to support a
reasonable belief that in camera review may yield evidence that establishes
the exception's applicability. Finally, we hold that the threshold showing
to obtain in camera review may be met by using any relevant evidence,
lawfully obtained, that has not been adjudicated to be privileged.

491 U.S. at 572-75, 109 S. Ct. at 2630-32 (emphasis added). Nowhere in the Zolin opinion

did the United States Supreme Court state that a prima facie showing of the crime fraud

exception was required before a judge could review documents in camera. In fact the Court

held that the lesser stringent requirement of "evidence sufficient to support a reasonable

belief that the in camera review may yield evidence that establishes the exception's

applicability." Id. at 575, 109 S. Ct. at 2332.

¶89. Reviewing the facts presented on the record, the circuit court did not abuse its

discretion in conducing in camera review of the documents in question. There was ample

44
evidence to support a finding that there was a reasonable belief that in camera review would

result in evidence that supported the crime fraud exception. Just a few facts supporting in

camera review include: (1) Meetings and conferences between Miller and Hewes which were

paid for by B&W; (2) Discussions between Miller, Hewes, and Adams concerning alleged

improper ex parte contacts; (3) Hewes's Deposition Exhibit evidencing DayTimer Extracts

which show appointments with Miller on four (4) separate occasions; (4) Miller and

Langston's bitter divorce proceedings; (5) Miller's employment at Bell South; (6) Miller's

admission that he has accessed Langston's telephone records in the past and has used Bell

South employees to do it; (7) Testimony of the Bell South Director of Security and a Bell

South Investigator concerning the accessing of Langston's phone records; (8) Inconsistent

affidavits provided by Miller; and (9) A very vague description provided by Miller and

Hewes concerning their "hypothetical" first meeting that lasted thirty (30) to forty-five (45)

minutes. After reviewing all of these facts, the circuit court judge certainly had a

reasonable belief that in camera review would result in evidence that would support the

crime fraud exception.

¶90. Although the majority also finds the circuit court judge had ample proof on which to

order an in camera review of the documents, it fails to correctly cite the applicable standard

of review which must be fulfilled before in camera review is appropriate. Under Zolin, the

party seeking disclosure is not required to make a prima facie case of the crime-fraud

exception in order to invoke in camera review, but only to reveal a "factual basis adequate

to support a good faith belief by a reasonable person." Id. at 572 (quoting Caldwell v.

District Court, 644 P.2d 26, 33 (Colo. 1982)).

45
 II. DID THE CIRCUIT COURT ERR IN GRANTING IN PART AND
DENYING IN PART LANGSTON'S MOTION TO COMPEL
CERTAIN DOCUMENTS WHICH DEFENDANTS HEWES AND
B&W CLAIM ARE PROTECTED BY ATTORNEY-CLIENT
PRIVILEGE, WORK PRODUCT DOCTRINE, AND COMMON
INTEREST PRIVILEGE?

¶91. To effectively and fully review the issues presented, I must first state the law

applicable to each privilege claim, then give an assessment of the circuit court's ruling and

my own in camera findings concerning the thirty (30) documents in question.

¶92. To set the stage, it must be remembered that the burden rests on the party resisting

discovery to show that the material sought is privileged and/or that an attorney-client

relationship exists. Haynes v. Anderson, 597 So.2d 615, 618 (Miss. 1992) (citing

Henderson v. Zurn Indus., Inc., 131 F.R.D. 560, 570 (S.D. Ind. 1990). See also United

States v. Neal, 27 F.3d 1045, 1048 n.24 (5th Cir. 1994)(citing United States v. Harrelson,

754 F.2d 1153, 1167 (5th Cir. 1985)).19 However, when the party opposing the privilege

claims an exception to the privilege applies, such as the crime fraud exception, the burden

is placed on the opposing party to show that the exception is applicable. Clark v. United

States, 289 U.S. 1, 15 , 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); Neal, 27 F.3d at 1049;

Indus. Clearinghouse, Inc. v. Browning Mfg. Div. of Emerson Elec. Co., 953 F.2d 1004,

19
See also In re Santa Fe Intern'l Corp., 272 F.3d 705, 710 n.7 (5th Cir. 2001);
United States v. Rodriguez, 948 F.2d 914, 916 (5th Cir. 1991); Hodges, Grant & Kaufmann
v. United States Gov't, 768 F.2d 719, 721 (5th Cir. 1985); In re Sealed Case, 737 F.2d 94,
99 (D.C. Cir. 1984); In re Boileau, 736 F.2d 503, 506 n.1 (9th Cir. 1984); In re Grand July
Investigation No. 83-2-35, 723 F.2d 447, 450 (6th Cir. 1983); United States v. Lawless, 709
F.2d 485, 487 (7th Cir. 1983); In re Grand Jury Subpoena Decus Tecum (Dorokee Co.),
697 F.2d 277, 280 (10th Cir. 1983); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.
1982); United States v. Flores, 628 F.2d 521, 526 (9th Cir. 1980).

46
1008 (5th Cir. 1992); In re Intern'l Sys. & Controls Corp. Secs. Litig., 693 F.2d 1235,

1242 (5th Cir. 1982).

A. ATTORNEY-CLIENT PRIVILEGE

¶93. "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,

388, 101 S.Ct. 677, 682, 66 L.Ed. 2d 584 (1980) (citing 8 J. Wigmore, Evidence § 2290

(McNaughton rev. 1961)). It is the purpose of the attorney-client privilege "to encourage full

and frank communication between attorneys and their clients and thereby promote broader

public interests in the observation of law and administration of justice." United States v.

Zolin, 491 U.S. at 562, 109 S.Ct. at 2625-26. See Upjohn, 449 U.S. at 388, 101 S.Ct. at 682.

As stated in Neal, where the privilege exists, it

protects communication from the client to the attorney made in confidence for
the purpose of obtaining legal advice. It shields communications from the
lawyer to the client only to the extent that these are based on, or may disclose,
confidential information provided by the client or contain advice or opinions
of the attorney.

27 F.3d at 1048 (quoting Wells v. Rushing, 755 F.2d 376, 379 n.2 (5th Cir. 1985) (citations

omitted)). However, the Fifth Circuit has recognized that the privilege should not be

broadened more than necessary. In United States v. Pipkins, 528 F.2d 559, 562-63

(5th Cir. 1976), the Fifth Circuit stated that:

The attorney-client privilege, however, is not a broad rule of law which
interposes a blanket ban on the testimony of an attorney. To the contrary,
. . . the privilege stands in degrogation of the public's 'right to every
man's evidence," 8 Wigmore (McNaughton rev. ed. 1961) s 2192 at 70,
and as 'an obstacle to the investigation of the truth,' Id., s 2291 at 554;
thus, as Wigmore has said, 'It ought to be strictly confined within the
narrowest possible limits consistent with the logic of its principle.'

47
 In re Horowitz, 482 F.2d 72, 81 (2nd Cir. 1973), cert denied, 414 U.S. 867,
94 S.Ct. 64, 38 L.Ed.2d 86 (1973). See also United States v. Goldarb, 328
F.2d 280, 282 (6th Cir. 1964), cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12
L.Ed.2d 746 (1964); Hogan v. Zletz, 43 F.R.D. 308 (N.D.Okl. 1967); aff'd sub
nom., Natta v. Hogan, 392 F.2d 686 (10th Cir.). The privilege does not
embrace everything that arises out of the existence of an attorney-client
relationship. United States v. Bartone, 400 F.2d 459, 461 (6th Cir. 1968),
cert. denied, 393 U.S. 1027, 89 S.Ct. 631, 21 L.Ed.2d 571 (1969); United
States v. Goldfarb, supra; Burlington Industries v. Exxon Corp., 65 F.R.D.
26, 40 (D.Md. 1974).

¶94. Rule 502 of the Mississippi Rules of Evidence provides for a Lawyer-Client Privilege.

Rule 502 states in pertinent part that:

(a) Definitions. As used in this rule:
(1) A "client" is a person, public officer, or corporation, association, or
other organization or entity, either public or private, who is
rendered professional legal services by a lawyer, or who
consults a lawyer with a view to obtaining professional legal
services for him.
(5) A communication is "confidential" if not intended to be disclosed
to third persons other than those to whom disclosure is made in
furtherance of the rendition of professional legal services to the
client or others reasonably necessary for the transmission of the
communication.

(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. . . .

(c) Who May Claim the Privilege. The privilege may be claimed by the
client, his guardian or conservator, the personal representative of a deceased
client, or the successor, trustee, or similar representative of a corporation,
association or other organization, whether or not in existence. The person
who was the lawyer or the lawyer's representative at the time of the
communication is presumed to have authority to claim the privilege but
only on behalf of the client.

Miss. R. Evid. 502 (a)(1)&(5),(b) & (c) (emphasis added). This Court has held that "the

privilege is only a one-way street, for it belongs to the client only . . . [and] . . . [o]nly the

48
client may invoke the privilege." Barnes v. State, 460 So.2d 126, 131 (Miss. 1984) (citing

Bennett v. State, 293 So.2d 1, 5 (Miss. 1974); James v. State, 65 Miss. 179, 183, 3 So. 379,

380 (1887); Caraway & Currie, Privileges, 48 Miss. L.J. 989, 1028-31 (1977)). (See In re:

Grand Jury Subpoena, 220 F.3d 406, 408 (5th Cir. 2000).20 The scope of the privilege has

been described by this Court as "relat[ing] to and cover[ing] all information regarding the

client received by the attorney in his professional capacity and in the course of his

representation of the client." Barnes, 460 So.2d at 131. See Dunn v. State Farm Fire &

Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991).

¶95. The attorney-client privilege is not without its limits and several exceptions make

information otherwise protected discoverable. One such exception will be discussed below.

B. THE WORK PRODUCT DOCTRINE

¶96. There is a distinct difference between the attorney-client privilege and the work

product doctrine. The Fifth Circuit described this difference as:

The attorney-client privilege exists to protect confidential communications and
to protect the attorney-client relationship and is waived by disclosure of
confidential communications to third parties. The work product privilege,
however, does not exist to protect a confidential relationship but to promote
the adversary system by safeguarding the fruits of an attorney's trial
preparations from the discovery attempts of an opponent.

Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989) (citing United States v.

American Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980)). "The purpose of the

work product privilege is to further 'the interests of clients and the cause of justice' by

20
See also Official Comment to Rule 502 which states that "[t]he lawyer's claim is
limited to one on behalf of the client; he himself has no independent claim." (citing United
States v. Jones, 517 F.2d 666 (5th Cir. 1975)).

49
shielding the lawyers mental processes from his adversary." In re Grand Jury Subpoena,

220 F.3d at 408 (quoting Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451

(1947)). "Work product only protects documents produced by or for an attorney preparing

for litigation." Dunn, 927 F.2d at 875. It has further been stated that:

The fact that litigation may still be a contingency at the time the document is
prepared has not been held to render the privilege inapplicable, if the prospect
of litigation is identifiable because of specific claims that have already arisen
. . . The test to be applies is whether, in light of the nature of the documents
and the factual situation in this particular case, the document can fairly be said
to have been prepared or obtained because of the prospect of litigation.

Haynes, 597 So.2d at 618 (quoting Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136,

151 (D. Del. 1977)). In making the determination whether the documents in question

were in fact prepared in anticipation of litigation, "courts should consider 'the nature of

the documents, the nature of the litigation, the relationship between the parties, and any

other fact peculiar to the case.' " Id. at 619 (quoting Pete Rinaldi's Fast Foods v. Great

Am. Ins. Cos., 123 F.R.D. 198, 202 (M.D.N.C. 1988); Carver v. Allstate Ins. Co., 94

F.R.D. 131, 134 (S.D. Ga. 1982)).

¶97. Rule 26 of the Mississippi Rules of Civil Procedure controls the discovery of work

product materials. Rule 26 states in pertinent part:

(b) Scope of Discovery. Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
(3) Trial Preparation: Materials. Subject to the provisions of
subdivision (b)(4) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of litigation
or for trial by or for another party or by or for that other party's
representative (including his attorney, consultant, surety, indemnitor,
insurer, or agent) only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation

50
 of his case and that he is unable without undue hardship to obtain
the substantial equivalent of the materials by other means. In
ordering discovery of such materials when the required showing has
been made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or
other representatives of a party concerning the litigation.

Miss. R. Civ. P. 26(b) (emphasis added). Rule 26 creates an exception to non-discovery of

such materials by creating a substantial need and undue hardship standard for compelling

production of documents. The "burden of showing that the materials that constitute work

product should . . . be disclosed is on the party who seeks their production." Hodges, Grant

& Kaufmann, 768 F.2d at 721 (citing Hickman, 329 U.S. at 51-12, 67 S.Ct. at 394, 91 L.Ed.

at 462-63; In re Anthracite Coal Antitrust Litig., 81 F.R.D. 516, 522 (M.D. Pa. 1979); 8

J. Wigmore, Evidence § 2023 at 196) (McNaughton rev. 1961)). However, Rule 26 also

places responsibility on the trial court when making such determinations to "protect against

disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or

other representatives of a party concerning the litigation." Miss. R. Civ. P. 26(b).

¶98. The Fifth Circuit in Intern'l Sys. & Controls, 693 F.2d 1235, addressed the

substantial need and undue hardship exception to the work product doctrine. In doing so the

court stated that

Some cases have found substantial need by emphasizing the importance of the
documents themselves. One common justification for discovery is the claim
which relates to the opposite party's knowledge that can only be shown by the
documents themselves. Bird v. Penn Central Co., 61 F.R.D. 43 (E.D.Pa.
1973); Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 296 F.Supp. 979,
983 (E.D. Wis. 1969)
....
We note that ultimately, these findings are part of a balancing test. The
district court should weight all the factors in deciding this issue. This balance
will not be overturned absent an abuse of discretion.

51
693 F.2d at 1241. Substantial need has also been found under other circumstances such as

(1) upon a showing that the document is necessary to impeach a witness; (2) upon a showing

that the document bears directly on substantive issues raised in the complaint; and (3) upon

a showing that the documents are highly relevant to, probative of, and may be outcome

determinative of some of the issues in the litigation. Fed. Election Comm'n v. Christian

Coalition, 178 F.R.D. 61, 85-86 (E.D. Va. 1998).21

¶99. Also the Fifth Circuit has listed two non exhaustive factors that a court should

consider in making a determination of undue hardship. In re Intern'l Sys. & Controls, 693

F.2d at 1240-41. These factors included (1) a witness is unable to recall the events in

question, or is unavailable; and (2) unusual expense in order to gather information. Id.

Other factors include (1) whether the substantial equivalent of information is available via

deposition; (2) lapse of time between the information being recorded in the document and

the litigation; and (3) possible witness hostility. Fed. Election Comm'n, 178 F.R.D. at 86.22
23

¶100. Additionally, a party can waive the protections of the work product doctrine by

disclosure of the information it seeks to protect. However, "mere voluntary disclosure to a

21
See also In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979).
22
See also S. Ry. Co. v. Lanham, 403 F.2d 119 (5th Cir. 1968); United States v.
Chatham City Corp., 72 F.R.D. 640, 644 (S.D. Ga. 1976).
23
In reviewing the confidential documents in question, I have not found the need to
apply the substantial need and undue hardship exception under the work product doctrine.
That is not to say that the exception is not applicable, but only to say that it was not
necessary in my analysis to rely upon this exception in finding that the documents should
be produced.

52
third person is insufficient in itself to waive the work product privilege." Shields, 864 F.2d

at 382 (citing American Tel. & Tel. Co., 642 F.2d at 1298-99); 8 Wright & Miller, Federal

Practice & Procedure § 2024, at 210 (1970) (See In re Grand Jury Proceedings, 43 F.3d

966, 970 (5th Cir. 1994)).24

¶101. The work product doctrine is also not without its limits and exceptions as discussed

below.

C. THE COMMON LEGAL INTEREST PRIVILEGE

¶102. The Fifth Circuit has described the common legal interest privilege as:

According to our circuit precedents, the two types of communications
protected under the CLI (common legal interest) privilege are: (1)
communications between co-defendants in actual litigation and their counsel;
see. e.g., Wilson P. Abraham Constr. Corp. v. Armco Steel Corp., 559 F.2d
250, 253 (5th Cir. 1977); and (2) communications between potential co-
defendants and their counsel. See Hodges, Grant & Kaufmann v. United
States, 768 F.2d 719, 721 (5th Cir. 1985); Aiken v. Texas Farm Bureau Mut.
Ins. Co., 151 F.R.D. 621, 624 (E.D.Tx. 1993).

In re Santa Fe Intern'l Corp., 272 F.3d at 710. In order for the common legal interest

privilege to apply "there must be a palpable threat of litigation at the time of the

communication, rather than a mere awareness that one's questionable conduct might some

24
In Shields, 864 F.2d 379 (5th Cir. 1989), the court held that compelled disclosure
in another case of survey prepared by expert for manufacturer's attorney's did not waive
manufacturer's work product immunity regarding that survey.
In United States v. American Tel. & Tel., 642 F.2d 1285 (5th Cir. 1980), the court
held that while the mere showing of a voluntary disclosure to a third person will generally
suffice to show waiver of the attorney-client privilege, it should not suffice in itself for
waiver of the work product privilege.
In In re Grand Jury Proceedings, 43 F.3d 966 (5th Cir. 1994), the court held that
work product privilege encompassed third party communications.

53
day result in litigation, before communications between one possible future co-defendant and

another . . . could qualify for protection." Id. at 711.

¶103. Although not specifically mentioned in Rule 502 of the Mississippi Rules of Evidence

which provides for lawyer-client privilege it is encompassed in the rule as indicated in the

comment to the rule. The Comment to Rule 502 states in pertinent part that:

The privilege extends to statements made in multiple party cases in which
different lawyers represent clients who have common interests. Each client
has a privilege as to his own statements. The FRE Advisory Committee's
Notes to Deleted Rule 503 state that the rule is inapplicable in situations where
there is no common interest to be promoted by a joint consultation or where
the parties meet on a purely adversary basis.

Miss. R. Evid. 502 cmt. However, Rule 26 of the Mississippi Rules of Civil Procedure,

which provides for the work product doctrine, does not mention in any way shape or form

a common interest privilege. Likewise, the Fifth Circuit has not addressed the application

of the common legal interest privilege to the work product doctrine. However, the Fifth

Circuit, while addressing the application of the common interest privilege to the attorney

client privilege, did state that it applies to "communications." Santa Fe Intern'l, 272 F.3d

at 710.25 Clearly, the implication is that the privilege is not intended to extend to the work

product doctrine. Therefore, any disclosure of claimed work product material to a third party

waives the protections of the work product doctrine.

25
See also Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir.
1985); Wilson P. Abraham Constr. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir.
1977); Aiken v. Tex. Farm Bureau Mut. Ins. Co., 151 F.R.D. 621, 624 (E.D.Tex. 1993).

54
¶104. Since the common legal interest privilege is an extension of the attorney-client

privilege it too is not without limitations and exceptions which will be discussed below.

D. THE CRIME FRAUD EXCEPTION

¶105. Though the attorney-client privilege, work product privilege, and common legal

interest privilege shelter communications and documents from discovery, they are subject

to exceptions. The crime fraud exception is one of these such exceptions. "Where a client

seeks to use an attorney to further a continuing or future crime or fraud the broader public

interest in the administration of justice is being frustrated, not promoted." United States v.

Dyer, 722 F.2d 174, 177 (5th Cir. 1983). "The privileges for communications between client

and attorney ceases when the purpose of the privilege is abused, when the lawyer becomes

either the accomplice or the unwitting tool in a continuing or planned wrongful act." United

States v. Ballard, 779 F.2d 287, 292 (5th Cir. 1986).

¶106. Rule 502 of the Mississippi Rules of Evidence; which provides for the Lawyer-Client

Privilege provides for the crime fraud exception. Rule 502 states in pertinent part that:

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of Crime or Fraud. If the services of the lawyers were sought
or obtained to enable or aid anyone to commit or plan to commit what the
client knew or should have known to be a crime or fraud.

Miss. R. Evid. 502(d)(1). The Comment to Rule 502 also provides that:

Subsection (d) excludes certain instances from the privilege. Rule 502(d)(1)
does not extend the privilege to advice in aid of a future crime or fraud. The
provision that the client knew or reasonably should have known of the criminal
or fraudulent nature of the act is designed to protect the client who is
mistakenly advised that a proposed action is lawful. See McCormick,
Evidence, § 75. Existing law in Mississippi on this point is unclear. . . [T]he
federal appellate court in Hyde Construction Co. v. Koehring Co., 455 F.2d

55
 337 (5th Cir. 1972), has determined that the Mississippi courts would allow
the privilege when an attorney, acting as the client's alter ego, commits a tort
or fraud. It is uncertain, if this is an accurate reflection of the scarce
Mississippi law on the point, but clearly under Rule 502(d)(1) the privilege in
such a case would not apply.

Miss. R. Evid. 502 cmt. Although not specifically provided for in the Mississippi Rules of

Evidence or Civil Procedure, it is clear that the crime fraud exception does apply to the work

product doctrine and the common legal interest privilege. See In re Grand Jury

Proceedings, 43 F.3d at 972; In re Burlington Northern, Inc., 822 F.2d 518, 524-25 (5th

Cir. 1987); In re Intern'l Sys. & Controls , 693 F.2d at 1241-42; In re John Doe Corp., 675

F.2d 482, 492 (2d Cir. 1982); In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir.

1979)).

¶107. It is unclear which party bears the burden for establishing that the crime fraud

exception applies. There seems to be much confusion about what exact standard of proof

has been adopted for invoking the crime fraud exception. In 1933, the United States

Supreme Court in Clark, held that:

There is a privilege protecting communications between attorney and client.
The privilege takes flight if the relation is abused. A client who consults an
attorney for advice that will serve him in the commission of a fraud will have
no help from the law. He must let the truth be told. There are early cases
apparently to the effect that a mere charge of illegality, not supported by any
evidence, will set the confidences free. See, e.g., Rynell v. Sprye, 10 Beav.
51, 54 11 Beav. 618; In re Postlewaite, 35 Fh.D. 722, 724, cf. Regina v.
Bollivant, (1900) 2 CBD 163, (1901) A.C. 196. But this conception of the
privilege is without support in later rulings. "It is obvious that it would be
absurd to say that the privilege could be got rid of merely be making a charge
of fraud." O'Rourke v. Darbishire, (1920)A.C. 581, 604. To drive the
privilege away, there must be "something to give colour to the charges';
there must be 'prima facie evidence that it has some foundation in fact."
O'Rourke v. Darbishire, loc. cit., supra; also pp. 614, 622, 631, 633 of (1920)
A.C. When that evidence is supplied, the seal of secrecy is broken. See, also,

56
 Regina v. Cox, (1884) 14 Q.B.D. 153, 157, 161, 175; cf. Bujac v. Wilson, 27
N.M. 112, 196 P. 513; In re Niday, 15 Idaho, 559, 98 P. 845.

289 U.S. at 15-16, 53 S.Ct. at 469-70 (emphasis added). Upon these statements, courts

began requiring a prima facie showing in order to invoke the crime fraud exception.26 In

1989, the Supreme Court in Zolin was called upon to review the application of the crime

fraud exception and declined to address the quantum of proof necessary to establish the

exceptions applicability. 491 U.S. at 564, 109 S.Ct. at 2626. However, due to criticisms

of the standard adopted in Clark, the United States Supreme Court in Zolin included a

footnote regarding the standard. The note reads as follows:

We note, however, that this Court's use in Clark v. United States, 289 U.S. 1,
14, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933), of the phrase "prima facie case"
to describe the showing needed to defeat the privilege has caused some
confusion. See Gardner, The Crime or Fraud Exception to the Attorney-Client
Privilege, 47 A.B.A.J. 708, 710-711 (1961); Note, 51 Brooklyn L.Rev. 913,
918-919 (1985) ("The prima facie standard is commonly used by courts in
civil litigation to shift the burden of proof from one part to the other. In the
context of the fraud exception, however, the standard is used to dispel the
privilege altogether with affording the client an opportunity to rebut the prima
facie showing" (emphasis in original)). See also In re Grand Jury Subpoena
Duces Tecum Dated September 15, 1983, 731 F.2d 1032, 1039 (CA2 1984).
In using the phrase in Clark, the Court was aware of scholarly controversy
concerning the role of the judge in the decision of such preliminary questions
of fact. See 289 U.S., at 14, N., 53 S.Ct., at 469, n. The quantum of proof
needed to establish admissibility was then, and remains, subject to question..
See, e.g., Maguire & Epstein, Preliminary Questions of Fact in Determining
the Admissibility of Evidence, 40 Harv.L.Rev. 392, 400 (criticizing courts
insofar as they "have allowed themselves to be led into holding that only a
superficial, one-sided showing is allowable on any admissibility controversy"),
414-424 (exploring alternative rules (1927); 21 C. Wright & K. Graham,
Federal Practice and Procedure: Evidence § 5052, p. 248 (1977) (suggesting,

26
See also Neal, 27 F.3d at 1048; Indus. Clearinghouse, Inc., 953 F.2d at 1008;
Ward v. Succession of Freeman, 854 F.2d 780, 790 (5th Cir. 1988); In re Inter. Systems
& Controls , 693 F.2d at 1242.

57
 with respect tot he process of proving preliminary questions of fact, that
"perhaps it is a task, like riding a bicycle, that is easier to do if you do not
think to much about what you are doing"). In light of the narrow question
presented here for review, this case is not the proper occasion to visit these
questions.

491 U.S. at 564 n.7, 109 S.Ct. 2627 n.7 (emphasis added). The footnote in Zolin seems

to suggest that the prima facie standard is questionable.

¶108. The Fifth Circuit has defined prima facie as:

[evidence] [s]uch as will suffice until contradicted and overcome by other
evidence . . . [a] case which has proceeded upon sufficient proof to that stage
where it will support [a] finding if evidence to the contrary is disregarded.

In re Intern'l Sys. & Controls 693 F.2d at 1242 (quoting Black's Law Dictionary (4th ed.

1968)). In line with this definition, courts have adopted a two-part test for a prima facie

showing:

The party challenging the privilege must (1) make an independent prima facie
case that a crime [or fraud] has been committed, and (2) then demonstrate that
the privileged information bears a relationship to the alleged crime or fraud.

Ward, 854 F.2d at 790 (citing In re International Systems & Controls Corp., 693 F.2d at

1243)). The type of evidence which may be used to satisfy such burden not only includes

the relevant non-privileged evidence which plaintiffs have gathered, but also the evidence

which the defendants claim is privileged that the trial judge views in camera. See Zolin, 491

U.S. at 574-75, 109 S.Ct. at 2632.27

27
In Zolin, the United States Supreme Court specifically held :

We hold that in camera review may be used to determine whether allegedly
privileged attorney-client communications falls within the crime fraud
exception. We further hold, however, that before a district court may engage
in in camera review at the request of the party opposing the privilege, that

58
 III. DID THE CIRCUIT COURT ERR BY CONCLUDING AFTER IN
CAMERA REVIEW THAT THE THIRTY (30) DOCUMENTS IN
QUESTION, WHICH WERE CLAIMED BY THE PRIVILEGED, WERE
DISCOVERABLE?

¶109. I have reviewed in camera the thirty documents in question. I find that the circuit

court did not err when it decided that all thirty documents presented to this Court were

discoverable. Without providing in-depth discussion into their content, a short explanation

as to why I find all to be discoverable will be provided.

A. ITEM 2: FILE MEMO BY HEWES CONCERNING HIS 1996 CONTACTS
WITH MILLER.

¶110. In order to be afforded protection under the attorney-client privilege, an attorney-

client relationship must exist. See Miss. R. Evid. 502(b). There was no attorney-client

relationship between Hewes and Miller. In fact, Hewes and Miller have conceded such.

Clearly, Miller was not a client and was not even a fact witness to the tobacco litigation.

Also, in order to be afforded protection under the work product privilege, the materials must

have been prepared in anticipation of litigation. See Miss. R. Civ. P. 26(b)(3). There was

no litigation or even possible litigation involving Hewes and Miller.

party must present evidence sufficient to support a reasonable belief that in
camera review may yield evidence that establishes the exception's
applicability. Finally, we hold that the threshold showing to obtain in camera
review may be met by using any relevant evidence, lawfully obtained, that has
not been adjudicated to be privileged.

491 U.S. at 574-75, 109 S.Ct. at 2632.

59
¶111. Hewes claims the file memo were protected under his attorney-client privilege and

work product privilege concerning his representation of B&W; however, the document is still

discoverable because the crime fraud exception applies.

¶112. Furthermore, the common legal interest privilege is not applicable. There was no

common interest in litigation as between Hewes and Miller. Also, any common interest

privilege claimed between B&W and Hewes also fails.

B. ITEM 23: VARIOUS LETTERS, MOTIONS, AND AFFIDAVITS.

¶113. The documents under Item 23 are not confidential communications within the

meaning of the attorney-client privilege. However, they are work product. But since all the

documents under Item 23 have been voluntarily disclosed to third parties; including the court

and Langston's counsel; any privilege to these documents has been waived.

C. ITEM 25: A MEMORANDUM CONCERNING POSSIBLE
ETHICAL VIOLATIONS STEMMING FROM MEETINGS
BETWEEN HEWES AND MILLER.

¶114. Since it has already been established that there is no attorney-client relationship

between Hewes and Miller, it is not necessary to address privilege applicability between

them concerning this item. Likewise, the common interest privilege is not applicable.

¶115. Furthermore, the privilege claim that existed between Hewes and B&W as related

to Item 25 falls squarely under the crime fraud exception.

D. ITEMS 26, 35, 36, 37, & 38: LETTER CONCERNING DRAFT
AFFIDAVIT OF MIKE MILLER AND DRAFT AFFIDAVIT OF
MIKE MILLER AS PREPARED BY HEWES.

60
¶116. Again, as discussed above no attorney-client relationship exists between Hewes and

Miller; therefore the privilege claim as to Items 26, 35, 36, 37, & 38 is without merit.

Furthermore, the common legal interest privilege does not apply.

¶117. As this draft document was intended to be disseminated to third parties, it is not

privileged. Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997)

(citing United States Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y.

1994)). Additionally, the privilege claim as to Items 26, 35, 36, 37, & 38 between B&W and

Hewes is subject to the crime fraud exception and is therefore discoverable.

E. ITEMS 30 & 31: DRAFT LETTERS AND AFFIDAVIT OF HEWES
CONCERNING CONTACTS BETWEEN MILLER AND HEWES.

¶118. As established, there is no attorney-client relationship between Miller and Hewes

which would invoke the applicability of privilege. Also, the common interest privilege is not

applicable.

¶119. Furthermore, Items 30 & 31 are not protected by the attorney-client privilege as

between B&W and Hewes since the documents are not "communications" within the

meaning of the privilege. See Miss. R. Evid. 502(b). However, the documents are work

product. Nevertheless, the documents are still discoverable since the crime fraud exception

applies. Alternatively, the documents are discoverable since they are drafts of letters and

affidavits to be presented to plaintiff counsel. As stated above "[d]rafts of documents to be

submitted to third parties, although prepared by counsel, are not generally privileged." Id.

F. ITEMS 47, 48, 49, 50, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65,
66, 67, & 68: BILLING STATEMENTS AND DAYTIMER EXTRACTS
OF HEWES CONCERNING CONTACTS AND CONVERSATIONS
WITH MILLER AS BILLED TO B&W.

61
¶120. As discussed above, no attorney-client relationship exists between Miller and Hewes

which would make the documents in Items 47-50, 52-53, & 55-68 privileged. Furthermore,

no common legal interest privilege applies.

¶121. The documents in Items 47-50, 52-53, & 55-68 are not attorney work product, as they

were not prepared in anticipation of litigation. The documents are however; as noted by

Hewes and B&W in their briefs; confidential communications. As other courts have found,

billing statements fall within the protections of the attorney-client privilege. See Chaudhry,

174 F.3d at 403; Clarke, 974 F.2d at 129. However, as has already been discussed the

attorney client privilege is subject to the crime fraud exception. After reviewing these billing

statements in camera, it is noted that the combined notations in Hewes's day timer and billing

statements to B&W show thirty-five entries which mention conversations and information

concerning Miller. Those thirty-five entries alone total seventy-six and one/tenth (76.1)

hours billed to B&W concerning just conversations or information concerning Miller. Of

those thirty-five (35) entries, nine (9) were made in March of 1996 about the time Miller and

Hewes claim they had one conversation which was totally in "hypotheticals". Those nine

(9) entries alone total thirty and one half (30.5) billed hours to B&W. In 1997, Hewes's

billing statements show ten (10) entries concerning contacts and discussions with Miller

which total thirty and one half (30.5) billed hours to B&W. Also, there are numerous other

notations in the billing statements and daytime extracts which indicate that some fraudulent

activity was afoot. Upon reviewing the in camera material and the non-privileged facts

which are in the record, Langston has met her burden of proof and the crime fraud exception

applies to Items 47-50, 52-53, & 55-68.

62
 IV.

¶122. In sum, the circuit court did not abuse its discretion by reviewing the documents in

question in camera. Furthermore, the circuit court correctly applied the law and made the

necessary findings of fact to hold that the documents presented in camera were discoverable.

Accordingly, the circuit court's order compelling production of the thirty (30) documents

should be affirmed and this case remanded for further proceedings. Miller was not a client

or fact witness in the tobacco litigation. He was the soon to be ex-husband of an attorney

who represented a plaintiff in tobacco litigation. Because of Miller's position at Bell South

he was able to access Langston's telephone records and give such information to the attorney

for the other side in the tobacco litigation. Such conduct should not be allowed to stand and

be covered up from the light of day under the guise of attorney-client, work product, and

common interest privileges. The chips should be allowed to fall where they may and the

documents produced as ordered by the circuit court. For these reasons, I dissent.

¶123. I again object to the majority’s haste in proceeding upon this motion for rehearing.

The majority has gone to extreme measures to expeditiously restrict the rights and powers

vested in the Governor by Art. 6, § 165 and arbitrarily circumvent the rights and protections

afforded Langston by the Mississippi Constitution. No emergency en banc was ever needed

on this matter. The “emergency” treatment of this motion for rehearing is the majority’s

effort to cut off Langston’s exercise of her constitutional rights. For the reasons stated

herein, I dissent to the majority's findings on this motion for rehearing.

63
APPENDIX

64
 STATEMENT OF
JUSTICE WILLIAM L. WALLER, JR.,
IN RESPONSE TO
PRESIDING JUSTICE McRAE'S DISSENT

¶124. Presiding Justice McRae objects to my participation in an administrative matter

pending before the Court. The administrative matter arose in the context of this case, but it

had nothing to do with the merits of the case at bar. It pertained to the procedural processes

of the Court.

¶125. The administrative matter concerned what should occur when a Justice has chosen not

to participate in a case pending before the Court. The issue was resolved in the case of

Public Employees Retirement System of Miss. v. Hawkins, 775 So. 2d 108 (Miss. 2000) (If

there is an absence of a sufficient number of Justices to rule upon a matter, the attorneys

involved shall submit a list of members of the bar to serve as Special Justices to consider and

determine all issues; if the attorneys cannot agree on a list, the Governor shall appoint the

Special Justices). I direct the readers' attention to then Presiding Justice Banks' account of

the evolution of the process of replacing justices who are not participating in a matter. Also

see Doe v. Stegall, No. 2001-CA-01674-SCT, in which Chief Justice Pittman discusses the

propriety of having the Governor appoint a replacement justice. In Stegall, the plaintiff, who

was represented by Shane Langston, filed a similar motion to have the Governor appoint a

special justice to replace Presiding Justice McRae.

¶126. The relevant inquiry in the issue of replacing non-participating justices is whether

there is a quorum of justices to decide the matter. Under Miss. Constitution Article 6,

§ 145B, five justices constitute a quorum. So, therefore, the process of selecting special

65
justices should not begin unless there are less than five participating justices. After Cynthia

Langston filed a motion for the Governor to replace Justice Diaz and me, I was asked to

participate in the vote on the motion. I did so with a clear conscience. The motion was

denied because of clear precedent to the contrary. In the end, the seven participating justices

in the case have rendered an opinion on the merits, and the Court's decision to continue with

only seven participating justices had absolutely nothing to do with the merits of the case.

¶127. I should point out that no complaints for my participation in the administrative matter

have been filed against me before the Commission on Judicial Performance. I sincerely

believe that if a complaint were to be filed, it would be dismissed because my participation

did not affect anyone's substantial rights or the merits of the lawsuit in any way. All my vote

did was to reaffirm existing precedent.

¶128. I now address Presiding Justice McRae's erroneous claims that my service as a Justice

of the Mississippi Supreme Court and as a Brigadier General in the Mississippi National

Guard violates the separation of powers clause of the Mississippi Constitution. The

Constitution provides that "all able-bodied male citizens of the state between the ages of

eighteen and forty-five years shall be liable to military duty in the militia of this state, in such

manner as the legislature may provide." Miss. Const. art. 9, § 214. This provision does not

exclude governmental officials from being liable for military service. As one court has

stated:

We would hesitate to impute to the framers of our Constitution
an intent to deprive citizens of the emoluments and honors of a
civil office on the ground they are engaged temporarily in
military service in time of war. No such result was intended or
reached in the framing and adoption of our Constitution. We

66
 are cognizant that the Constitution of the State is operative in
war as in peace, and we would not subtract an iota from the
principle of our organic law. Moreover, no provision of the
Constitution should be so absurdly construed as to penalize a
citizen on account of his efforts to maintain it.

State ex rel. Thomas v. Wysong, 24 S.E.2d 463, 468 (W. Va. 1943) (emphasis added).

¶129. Presiding Justice McRae contends that the Guard is an agency of the executive branch

because the Governor is Commander-in-Chief, and that, because Guard officers function

under the executive branch and judicial officers under the judicial branch, my dual service

violates the separation of powers clause. However, our Constitution grants the Governor

military power in Art. 9, § 217, and grants the Governor civil power, or "chief executive

power," in Art. 5, § 116. Certainly the framers of the Constitution intended that the military

power should be separate from the executive power. Furthermore, Art. 9, §§ 215 and 216

provide that the Legislature has the power to organize, arm, equip and discipline the militia,

and that the Legislature must consent to the Governor's appointment or suggestion of

removal of a commissioned officer. If the Guard is under the executive branch, as Presiding

Justice McRae suggests, why would the Constitution allow legislative interference? The

obvious and correct interpretation of the Constitution is that serving in the Guard does not

prohibit that person from serving his state in a branch other than the executive branch.

Requiring governmental officials to choose between their public offices or the Guard would

be unjust and inconsistent with the spirit of public duty.

¶130. The contention that the State Constitution is in conflict with the U.S. Constitution is

without merit. Admittedly, the Mississippi National Guard has a uniquely dualistic role as

shown by its name which includes "Mississippi" and "National." It has its constitutional

67
roots in the right of states to raise and maintain a militia, but Congress also has authority to

raise and support armies. Congress may regulate states' militias through the Militia Clause

of the U. S. Constitution. See U. S. Const. art. I, § 8. Furthermore, the Militia Clause

"recognizes the supremacy of federal power in the area of military affairs." Perpich v.

Department of Defense, 496 U.S. 334, 351, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990)

(footnote omitted). Thus, Presiding Justice McRae's suggestion that my service with the

Guard violates Miss. Const. art. 14, § 267 is moot because federal law trumps state law in

this area.

¶131. This principle is illustrated by federal legislation which prevents employers from

firing persons who have lengthy absences due to their service in the military. See 38 U.S.C.

§ 4301 (2003). The stated intent of this legislation is to "encourage noncareer service in the

uniformed services by eliminating or minimizing the disadvantages to civil careers" and to

"prohibit discrimination against persons because of their service to the uniformed services."

38 U.S.C. § 4301(a). This legislation applies to the states. Therefore, even if Miss. Const.

art. 14, § 267 were interpreted to mean that I cannot serve in the Guard and hold state office,

it must give way to the supremacy of the federal law which regulates state militias.

¶132. Miss. Code Ann. § 33-1-1(b) (Rev. 2000) makes a distinction between the

"Mississippi State Guard," and the "Mississippi National Guard." Indeed Chapter 5 of Title

33 pertains to "The Militia and Mississippi State Guard," and Chapter 7 of Title 33 refers to

the "National Guard."

¶133. Miss. Code Ann. § 33-7-1(a) (Rev. 2000) provides:

68
 The Mississippi National Guard shall consist of the organized
militia within the ages prescribed by federal law and
regulations, . . and of commissioned officers and warrant
officers within the ages and having the qualifications prescribed
by federal law and regulations. The number of officers and
enlisted men of the national guard and the grades and
designations thereof shall be as now or hereafter prescribed by
federal law and regulations relating to the national guard, and
all commissions and promotions shall be in accordance with the
aforesaid regulations.

(Emphasis added.)

¶134. Finally, Miss. Code Ann. § 33-1-9 (Rev. 2000) provides as follows:

Any citizen of this state may accept and hold a
commission or warrant in the militia of this state or hold enlisted
membership in the militia of this state or a commission in any
reserve component of the armed forces of the United States
without vacating any civil office, position or commission held
by him, and the acceptance of holding of any such commission,
warrant or membership and receiving pay therefrom shall not
constitute such holding of an office privilege and trust under the
government of this state or of the United States as shall be
incompatible with the holding of any civil office, legislative or
judicial, or position or commission under the government of this
state and receiving the emoluments therefor.

(Emphasis added.) Thus, under the provisions of our own statutes, there is no merit to

Presiding Justice McRae's allegations that I serve under the executive branch of the State of

Mississippi or that my work as a Justice of the Supreme Court and as a Guard officer violates

the separation of powers doctrine.

¶135. Presiding Justice McRae has made several other accusations. He states that the

"majority caucus" had "made a determination as to the outcome [of the motion for

appointment of special counsel] without an en banc or vote ever having been conducted."

Regardless of when Central Legal prepared the proposed order, the vote on the motion did

69
not take place until the en banc was assembled. Lawyers customarily draw up proposed

orders prior to a judge's ruling on a motion. This is done for efficiency's sake, not for

improper motives. Furthermore, if the Court was to follow precedent in ruling upon the

motion, I admit, yes, the determination of the outcome of the motion was made prior to the

en banc. The Court, as a rule, follows precedent. There was no reason for the Court to

believe that Cynthia Langston's motion constituted an exception to this rule.

¶136. There is absolutely nothing improper for two or more justices to have strategy

sessions. Some justices meet with others to talk about the issues and to determine what the

best approach to resolving the issues might be. The issues may be administrative. We may

meet prior to an oral argument. Again, we have strategy sessions for efficiency's sake.

¶137. Presiding Justice McRae cites Banana v. State, 638 So. 2d 1329, 1331 (Miss. 1994),

for the proposition that a recused judge may not participate in the appointment of a

replacement judge. This case is not relevant to this matter because I in no way participated

in the appointment of a replacement judge. I merely voted on what process to use in

deciding whether a replacement judge was needed.

¶138. His statement that a conflict of interest arose because Governor Musgrove, who

appointed me as Brigadier General of the Mississippi National Guard, would be the same

person who would appoint a replacement judge does not follow a logical progression. I

voted to follow the Court's administrative processes, not to influence Governor Musgrove

in any way about whom to appoint as a replacement judge, if he were called upon to do so.

Cynthia Langston, not I, wished to have Governor Musgrove appoint a replacement justice.

I voted against having Governor Musgrove possibly make such an appointment. How could

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a conflict of interest arise under these circumstances? Presiding Justice McRae's innuendo

is preposterous.

¶139. Presiding Justice McRae has grossly overstated my salary. If he had been interested

in accuracy, salaries for Supreme Court Justices are set by the Legislature and are codified

in a statute, and the pay scale paid to Guard officers is posted on several internet sites and

should be considered public record.

¶140. Presiding Justice McRae alleges that "suddenly" I decided to participate in the case

of Dillard v. Musgrove, 838 So. 2d 261 (Miss. 2003), after not participating in the merits of

the case "after a year and a half." May I remind Presiding Justice McRae that I participated

on a motions panel with him where we ruled upon motions in Dillard. Furthermore, I voted

"not participating" on only one circulated proposed opinion. In every other instance, I

participated in the case on the merits.

¶141. Any concerns that my service in the Guard interferes with my work as an appellate

judge should be laid to rest. Court records show that I rarely miss the deadlines for votes,

memoranda, and opinions. I work hard and am consistently among the three justices who

have written the most opinions for any given time period, be it on a monthly or a yearly

basis. I also chair the Rules Committee which has been very active in working to reform and

modernize court procedures and systems. My record will stand up under any scrutiny.

¶142. I exhort Presiding Justice McRae to cease making attacks on his fellow Justices and

on the Court as a whole. As he himself has stated, "[j]ustice delayed is justice denied."

Hawkins, 775 So. 2d at 110 (McRae, J., dissenting). When we are forced to respond to

Presiding Justice McRae's unfounded allegations, time is taken away from the work that the

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Supreme Court is supposed to do: the dispensation of justice. I am not implying that there

is no room for legitimate dissent. But dissents should be based on differing interpretations

of fact or law, not personality conflicts or sour grapes.

¶143. Furthermore, the appropriate procedure to allege that a judge has committed an

unethical or unlawful act is through the Commission on Judicial Performance, not through

the official opinions of the Court. Opinions should not be used to attack the integrity of the

Court and its members. They should be written to clarify existing precedent or, in some

cases, make new precedent. Busy attorneys and litigants who rely on our decisions do not

want to waste time reading about Court squabbles.

¶144. In closing, I fervently hope that the Court can once again work together with an esprit

de corps and that we can respect each other's opinions without regard to personalities.

Attorneys are held to professional standards, so judges should be held to an even greater

standard. This standard demands dignity, decorum and integrity, not dirty tricks, backbiting

and innuendo. Please, let us no longer delay the work of justice.

PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ., JOIN THIS
SEPARATE WRITTEN STATEMENT.

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