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Hewes v. Langston9/11/2003
ON MOTION FOR REHEARING
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.
. 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 The original opinions are withdrawn, and these opinions are substituted therefor.
. 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.
. For purposes of an in camera inspection by the trial court, the documents were divided into 68 numbered "Items," 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.
. Hewes and B&W;subsequently withdrew their objection to Item 38, a letter and draft affidavit from Alan Perry (Hewes's original counsel in this action), to Richard Roberts, counsel for Mike Miller, Langston's ex-husband. Further, Item 23 is a chronology of events with numerous attachments. The trial judge concluded that the chronology of events, itself, was not discoverable but that the attachments to the chronology were discoverable. Hewes and B&W;withdrew their objection to most of the attachments to Item 23, but maintained their objection to one of the letters that was part of the attachments, Item 23/Page 183. Thus on appeal, of the original 30 Items, there remain 29 at issue.
. 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?
. 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.
. Concluding that the trial court erred in determining that all of the 29 Items were discoverable, we reverse and remand.
FACTS
. In 1996, Cynthia Langston served as counsel for the plaintiffs in Butler v. Phillip Morris, Inc., a wrongful death action filed in the Jones County Circuit Court against tobacco manufacturers. While that litigation was ongoing, Langston was in the process of divorcing her then husband, Mike Miller, who was a manager for BellSouth Telecommunications. Langston accused Miller of using h
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