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Nester v. Jernigan8/4/2005
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE
DISPOSITION: REVERSED AND REMANDED - 08/04/2005
BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.
. In this interlocutory appeal in a slander action, a defendant who is an attorney asks us to reverse an order of the Circuit Court of Forrest County requiring her to provide certain information in discovery which she claims (i) is work product, (ii) is protected by the attorney-client privilege, and (iii) if disclosed, would place her in violation of the Mississippi Rules of Professional Conduct. Concluding that the information is protected by the attorney-client privilege, we reverse and remand.
BACKGROUND FACTS AND PROCEEDINGS
. In 1997, attorney Kathryn N. Nester represented Greg Alston, one of four defendants in a criminal case in Forrest County Circuit Court. During a hearing on various motions, Nester informed the trial judge that she had filed a motion to compel production of the psychiatric or psychological records of one of the State's witnesses. Stating that she would "just as soon not embarrass anybody . . . and for purposes of privacy," Nester requested that she be allowed to discuss the motion at the bench. The trial judge refused the request and required Nester to announce her motion in open court. Nester then stated, Okay. Well, it is our understanding that one of the State's witnesses is or has been at some point on psychiatric medication, and we feel that that type of information is directly relevant to impeach a witnesses' credibility, especially on matters of memory, if you're dealing with some kind of psychological problem.
The trial judge then asked, "Specifically who are you talking about?" Nester replied, "Specifically Jay Jernigan." Nester then told the trial judge, "this is just on information and belief, but I'm certainly not making any statement one way or the other based on facts, just on information and belief."
. The prosecutor then stated that he believed the State was entitled to know where Nester got the information. The trial judge asked Nester if she would elaborate. When she declined, the trial judge overruled her motion.
. Jernigan then filed this suit against Nester for slander, and he served discovery requests for the identity of the person who supplied her the information that Jernigan may have been on psychiatric medication.
. Nester moved to dismiss, asserting that her statements in court were privileged and that she was protected by immunity. Additionally, Nester responded to the discovery requests by asserting that Jernigan sought to elicit information protected by the attorney-client privilege, including attorney work product. Jernigan responded with a motion to compel responses to the discovery requests. In granting Jernigan's motion to compel, the trial court stated:
hile the Defendants' claim of immunity might very well be valid if it is determined that the statements were not made to defraud or deceive the Court but were made in good faith on reliable information, nevertheless the Plaintiff is entitled to disclosure of the source of the information before this determination can be made . . . further . . . the claim of privilege applies to the content of the communication and not to the identity of the communicator and that upon disclosure of the content any privilege otherwise existing is waived.
. Nester filed a motion for reconsideration, or alternatively, for certification of the order for interlocutory review and stay. The trial court denied Nester's motion for reconsideration, but granted permission to file an interlocutory app
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