 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hewes v. Langston9/11/2003
ticizing 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 ยง 5052, p. 248 (1977) (suggesting, 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.
.The Fifth Circuit has defined prima facie as:
[evidence] uch as will suffice until contradicted and overcome by other evidence . . . case which has proceeded upon sufficient proof to that stage where it will support 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.
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?
.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.
.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.
.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.
.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.
.The docume
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Mississippi Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|