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[W] Hewes v. Langston6/19/2003
ided 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 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.
. 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.
. 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.
. 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.
. 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.
. 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.
. 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.
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