Mississippi

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

George P. Hewes III and Brown & Williamson Tobacco Corp.
v. Cynthia Langston.,
853 So. 2d 1237 (Miss. 09/11/2003)

SUPREME COURT OF MISSISSIPPI

853 So. 2d 1237

September 11, 2003, Decided

PRIOR HISTORY: [*1] DATE OF JUDGMENT: 04/07/1999. TRIAL

JUDGE: HON. TOMIE T. GREEN. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. Hewes v. Langston, 848 So. 2d 800 (Miss., 2003)

Hewes v. Langston (Miss., Sept. 11, 2003)

DISPOSITION: Reversed and remanded.

COUNSEL: 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.

JUDGES: COBB, JUSTICE, FOR THE COURT. 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.

OPINIONBY: COBB

OPINION: ON MOTION FOR REHEARING

NATUURE OF THE CASE: CIVIL - OTHER

EN BANC.

COBB, JUSTICE, FOR THE COURT:

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 The original opinions are withdrawn, and these opinions are substituted therefor.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. [*2] 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," n1 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.

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n1 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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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 [*4] 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 his position at BellSouth to improperly access her telephone records. Langston further alleged that sometime before the divorce [*5] 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.

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.

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 [*6] 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 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.

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.

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 [*7] trial judge's response, we reverse and remand.

STANDARD OF REVIEW

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

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 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.

Certainly, under proper circumstances, the Governor may make [*8] 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."

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.

In PERS v. Hawkins, 781 So. 2d 899 (Miss. 2001), [*9] 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: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.

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 [*10] decide the case," and denied the request for referral to the Governor.

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 as four members are present and participating, and in the same manner as if those present comprised [*11] 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, 76 So. 519, 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 [*12] 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).

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 would additionally impose a burden and expense on the state and place demands on the Governor which the Constitution never intended.

Furthermore, such an interpretation [*13] 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.

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.

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. [*14] See the discussion of Stephens v. The Equitable Life Assurance Society, No. 2002-CA-498-SCT, 850 So. 2d 78 (Miss.); Owens Corning v. Altria Group, Inc., No. 2001-CA-1285-SCT (Miss.); Lane v. R. J. Reynolds Tobacco Co., No. 2001-CA-384-SCT, 853 So. 2d 1144, 2003 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 to the Governor suggesting the appointment of a special justice. The Governor has made no such appointments.

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.

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.

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.

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

"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).

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 privilege *fn2 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.

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.

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

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 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.

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 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).

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

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).

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 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

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.

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.

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 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.

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

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.

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 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.

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.

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

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

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. *fn3 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.

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:

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).

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 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.

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.

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

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 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

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.

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. 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.

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.

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.

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:

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. 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.

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 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.

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 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 (Poole) 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.

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. 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?

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 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?

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 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?

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. *fn4 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. *fn5

On appeal, the only issue before the Court was whether the trial court erred in dismissing the action for lack of standing. *fn6 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. *fn7 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.

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 background that these facts, that Chief Justice Pittman went to Justice Waller and requested that he get back into the Dillard case and participate. *fn8 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.

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. *fn9 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. *fn10 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. *fn11 Chief Justice Pittman, in his concurring opinion, admonished my attachment of Justice Waller's intra-office e-mail. *fn12 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 of court administration". *fn13 Justice Waller also wrote a concurrence defending his actions. *fn14 He attempted to justify his actions, by stating that he was originally "not participating" which is different from a "recusal". *fn15 Not so.

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?

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.

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. *fn16 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 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.

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.

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.

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 is a "vote