Serial: 191228
                    IN THE SUPREME COURT OF MISSISSIPPI

                                   No. 2013-IA-00839-SCT


EDUARDO A. FLECHAS

v.

ALYCE PEARL PITTS


                                         ORDER


       The motion for reconsideration is denied. The en banc Court’s order filed herein on

December 20, 2013, is vacated and withdrawn, and this order is substituted in lieu thereof.

       This matter is before the Court en banc on the Motion for Immediate, Extraordinary

Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on

Newly Discovered Evidence and Related Legal Issues filed by Petitioner; the Motion to

Dismiss and to Strike the Motion for Immediate, Extraordinary Relief, and Petition for

Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence

and Related Legal Issues, or to Partially Strike filed by Respondent; Respondent’s Rule

48A(d) Mississippi Rules of Appellate Procedure Motion for Access to Sealed Document,

and all responses and rebuttals.

       By orders dated March 27, 2013, and June 5, 2013, separate panels of this Court

denied Petitioner’s requests for interlocutory appeal or writ of prohibition as to orders

entered by the Lincoln County Chancery Court in Cause No. 2011-0478. Petitioner then
asked for reconsideration of these decisions. By order dated June 20, 2013, this Court stayed

all proceedings in Cause No. 2011-0478, and ordered responses from Respondent and the

Lincoln County Chancery Court. After consideration, this Court entered an order on August

29, 2013, which allowed the Lincoln County Chancery Court to enter an order resulting from

a hearing held in the chancery court on June 20, 2013. This order was entered by the

chancery court on September 13, 2013.

       After consideration of the pleadings, the transcript of the June 20, 2013, hearing, and

the September 13, 2013, order, the Court finds that the Motion for Immediate, Extraordinary

Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on

Newly Discovered Evidence and Related Legal Issues should be granted; that, pursuant to

Mississippi Rule of Appellate Procedure 21(d), this Court should dispose of this motion for

extraordinary relief in an expedited manner under Mississippi Rule of Appellate Procedure

5(e), and that the Court further finds as follows:

       1.     With respect to the Order of September 13, 2013, the chancery court stated

“[t]his Order does not supersede or vacate, in whole or in part, any of the court’s previous

orders,” requiring this Court to address the subpoena duces tecum of May 30, 2012

(“Subpoena”); the chancery court’s Order of February 1, 2013 (“Order 1”); the chancery

court’s Order of May 23, 2013 (“Order 2”); and the chancery court’s order of September 13,

2013 (“Order 3”).

       2.     The subpoena is at the core of this dispute. The subpoena was served on an

attorney for a party and not the party or a witness. The subject matter of the subpoena

includes all of Flechas’s personal files and records regarding all aspects of his representation


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of Troy Pitts. These include “all files, records, electronic communications, written or any

documents . . . including . . . all divorce files, personal injury defense files, estate files, Will

or trust files, [and] deed preparation files.” See Subpoena.      At the time the subpoena was

served, the only proceeding pending was a will contest between competing wills advanced

by Alyce Pitts and Todd Pitts.

       3.      Flechas sought to withdraw as attorney for Todd Pitts by Motion of April 4,

2012, which motion was denied by the chancery court. While this issue is not before the

Court, it is self-evident that Flechas’s ability to represent Todd Pitts has been compromised

by the ongoing subpoena litigation, or a trial within a trial, and the chancery court should

revisit this. See Mississippi Rule of Professional Conduct 3.7 (Lawyer as a Witness). See

also Graves v. Maples, 950 So. 2d 1017 (Miss. 2007).

       4.      In response to the subpoena, Flechas consistently has raised issues of relevance

and privilege, both work-product and attorney-client. See Flechas’s “Motion Quash, or in

the Alternative, for Protective Order,” and his “Answer and Defense to the Petition for

Citation of Contempt, Renewed Motion to Quash or, in the Alternative, for a Prohibitive

Order, and Motion to Stay.” Flechas arguably did not sufficiently set out in detail which

documents were privileged and why; however, as explained below, Flechas was placed in

an almost impossible situation.

       5.      In Order 1, the chancery court denied Flechas’s motion to quash. The chancery

court found that no privilege attached to any of the documents because the information

subpoenaed under Rule 45 of the Mississippi Rules of Civil Procedure was not subject to

Mississippi Rules of Civil Procedure 26(b)(3), 37(a), and Uniform Circuit and County Court


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Rule. 1.10(C), as the chancery court found the protections in these rules apply only to

“discoverable information.” See Order 1. In addition, the chancery court found none of

Flechas’s personal files and documents were privileged. Id. Instead, the chancery court

found the files and documents were subject to an exception to the privilege rules under Rule

502(d)(2) of the Mississippi Rules of Evidence, which provides an exception to the rules of

privilege when parties claim through the same deceased client. See Order 1. Thus, this order

put Flechas in a position where he would have to turn over every single document in his

possession relating to his representation of Troy Pitts, without regard to the relevance of the

information or whether the subpoenaed documents contained discoverable or other protected

work-product information. Indeed, Flechas was in the almost-impossible situation of having

to produce a privilege log that included nearly every document in his personal files relating

to his representation of Troy Pitts in multiple matters.

       6.     A subpoena duces tecum is subject to the Mississippi Rules of Civil Procedure.

Because the Mississippi Rules of Civil Procedure are modeled on the Federal Rules of Civil

Procedure, this Court has “looked to the federal interpretations of our state counterparts as

persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1216

(Miss. 2001) (citations omitted). Discussing the relation of Federal Rule of Civil Procedure

45 to the federal rules related to discovery, Wright and Miller state “[t]he federal courts, in

a great multitude of cases, announced that the discovery rules constituted an integrated

mechanism and that [the discovery rules and Rule 45] must be read in pari materia.’” 9A

Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2452 (3d ed.

2013) (citing Hickman v. Taylor, 329 U.S. 495, 505, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (“It

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matters little at this later stage whether Fortenbaugh fails to answer interrogatories filed

under Rule 26 or under Rule 33 or whether he refuses to produce the memoranda and

statements pursuant to a subpoena under Rule 45 or a court order under Rule 34. The

deposition-discovery rules create integrated procedural devices.”)). Indeed, this view is

consistent with prior decisions from this Court. See, e.g., West v. West, 891 So. 2d 203, 216

(Miss. 2004) (“We reverse the chancellor’s decision to quash Debbie’s subpoenas duces

tecum and remand to the trial court . . . [to rule] as to each of twenty-nine categories of

financial information [requested for productions in the subpoena] . . . .We note Debbie is still

bound by the rules of relevance in regard to discovery. . . .”) (footnote omitted).

       7.     This Court has held that, in order to obtain a subpoena duces tecum, “‘[t]he

petition must state sufficient facts to show that the papers and books sought are material as

evidence in the case, and to show their purpose and materiality, that a judge may protect the

witness against unnecessary or irrelevant production.’” Griffin v. State, 494 So. 2d 376, 380

(Miss. 1986) (quoting Williams v. State, 125 So. 2d 535, 535 (Miss. 1960)); Bd. of Review

v. Williams, 15 So. 2d 48, 50 (Miss. 1943) (“The order will not issue unless the books and

papers are pertinent, relevant and material to the issues then being tried, and the application

or petition must show these facts.”). Though Williams cites “pre-rules” cases, the underlying

legal parameters for subpoenas are carried forward in the Mississippi Rules of Civil

Procedure. See Mitcham v. Ill. Cent. Gulf R. Co., 515 So. 2d 852, 857 (Miss. 1987) (noting

the protections of Rule 26(b)(3) still apply to documents subpoenaed under Rule 45); Miss.

R. Civ. P. 45 cmt. (“The force of a subpoena for production of documentary evidence




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generally reaches all documents under the control of the person ordered to produce, saving

questions of privilege or unreasonableness.”) (emphasis added).

       8.     Rule 45(d)(1)(A) deals with situations when a motion to quash a subpoena

should be granted and states, “[o]n timely motion, the court from which a subpoena was

issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for

compliance; (ii) requires disclosure of privileged or other protected matter and no exception

or waiver applies, (iii) designates an improper place for examination, or (iv) subjects a

person to undue burden or expense.”(Emphasis added.) Again, the chancery court’s Order

1 found all of Flechas’s personal files and documents related to his representation of Troy

Pitts were excepted under Rule 502(d)(2), and none of the protections of Rule 26(b) applied.

       9.     The chancery court was required to find whether the subpoena at issue sought

irrelevant or privileged information under the same standards as set forth in Rule 26(b) and

other discovery rules. Again, the will contest is the only issue before the chancery court. No

showing has been made that the documents subpoenaed have anything to do with the only

issue ultimately before the chancery court: “devisavit vel non” or “will or no will.” See

Subpoena.

       10.    With regard to Flechas’s privilege argument, the chancery court found all of

the information subject to the subpoena was excepted from any privilege under Mississippi

Rule of Evidence 502(d)(2), which provides an exception to the rules of privilege when

parties claim through the same deceased client. In Mississippi United Methodist Conference

v. Brown, this Court held blanket statements regarding whether or not documents may or

may not be compelled in discovery procedures were not sufficient and “[o]nly an in-camera


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inspection and subsequent document-by-document analysis, accompanied by the

corresponding rule or exception, will meet the requirements for such a determination.”

Brown, 911 So. 2d 478, 481-82 (Miss. 2005).           Further, Rule 502(d)(2) still restricts

disclosures to relevant communications. See M.R.E. 502(d)(2). All this Court has before

it is the chancery court’s blanket statement that all of the subpoenaed documents are excepted

from privilege because of Rule 502(d)(2). Facially, it does not appear that every single

document subject to the subpoena would be excepted from privilege because of Rule

502(d)(2). Further, the privilege analysis also must take into account the work product and

client communications of an attorney.

       11.    This Court has stated the work-product doctrine “protects an attorney’s

thoughts, mental impressions, strategies, and analysis from discovery by opposing counsel.”

Hewes v. Langston, 853 So. 2d 1237, 1245 (Miss. 2003) (citing Hickman v. Taylor, 329

U.S. 495, 510-11, 67 S. Ct. 385, 393, 91 L. Ed. 451 (1947)). “‘Not even the most liberal of

discovery theories can justify unwarranted inquiries into the files and mental impressions of

an attorney.’”Hewes 853 So. 2d at 1245 (quoting Hickman, 329 U.S. at 510). The work-

product doctrine still does not shield all documents from discovery. Mississippi Rule of Civil

Procedure 26(b)(3) 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

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       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.

Hewes, 853 So. 2d at 1245. Thus, to obtain discovery of an attorney’s work product, the

moving party has the burden to show it has a substantial need for the information and it

would be an undue hardship to obtain the information by other means. See Roman Catholic

Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1247 (Miss. 2005). Rule 26 “also places

responsibility on the trial court when making such determinations to ‘protect against

disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or

other representatives of a party concerning the litigation.’” Hewes, 853 So. 2d at 1266. See

also Mitcham v. Ill. Cent. Gulf R. Co., 515 So. 2d 852, 857 (Miss. 1987) (noting the

protections of Rule 26(b)(3) still apply to documents subpoenaed under Rule 45). Because

the subpoena at issue sought all Flechas’s files and records regarding his representation of

Troy Pitts, his work product certainly was subject to the subpoena.

       12.    The chancery court, in its Response to the Supreme Court, dated July 1, 2013,

first presented the “crime-fraud” exception as a basis for ruling against Flechas’s privilege

argument. This has not been raised by Alyce, nor was it raised in Order 1. A party seeking

documents under the crime-fraud exception must first make a prima facie case “for getting

an in camera review of [the] disputed documents.” Hewes, 853 So. 2d at 1247. Hewes

further instructs that mental impressions contained in the attorney work product are

obtainable only in “rare” situations. Id.

       13.    In her response to the Supreme Court’s Order of June 20, 2013, Alyce, for the




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first time disclosed the filing of a Petition for Discovery and Recovery of Estate Assets, for

Disgorgement of Fees, to Disqualify Attorney and for Other Relief (“Disgorgement

Petition”), filed on March 4, 2013. The subpoena filed May 30, 2012, appears to be related

to this subsequent filing; however, it should be noted this was not filed as a separate action.

Further, it makes claims on behalf of the estate of Troy Pitts. As a threshold, the will contest

must first conclude and the executor of the estate must be determined.               After this

determination, the executor may then decide whether to pursue the allegations contained in

the Disgorgement Petition on behalf of the estate.

       14.    In Order 3, the chancery court set out a procedure for recovering privileged

documents of Flechas in the chancery clerk’s office.         The procedures for recovering

privileged documents are limited to mental impressions/memoranda, yet the chancery court

still has not determined whether the subpoenaed documents are relevant to the will contest.

Additionally, communications by and between Flechas and Troy should have been included.

       15.    Following the denial of the Motion to Quash, Alyce filed a Petition for Citation

of Contempt against Flechas for failure to respond to the subpoena. As stated above, Flechas

was facing an almost impossible situation; nonetheless, he made no effort to comply, thus,

the chancellor’s award of attorney fees was appropriate in Order 2.

       IT IS THEREFORE ORDERED:

       a.     That Flechas’s Motion for Immediate, Extraordinary Relief, and Petition for

Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence

and Related Legal Issues is hereby granted;

       b.     That the chancery court’s Order 1 of February 1, 2013, is hereby reversed and


                                               9
rendered, and that the chancery court’s Order 3 of September 13, 2013, is hereby vacated;

       c.     That the chancery court’s Order 2 of May 23, 2013, is hereby affirmed as to

finding Flechas to be in contempt of court and requiring him to pay attorney fees of $692.50,

but is otherwise reversed and vacated;

       d.     That the chancery court shall first review whether the request contained in the

subpoena seeks documents relevant under Rule 26 to the only issue before the chancery court

at this time, devisavit vel non;

       e.     That Flechas shall produce all documents deemed relevant to the will contests

by the chancery court and create a new privilege log, listing which of the relevant documents

he believes are privileged;

       f.     That the chancery court shall then conduct an in camera, document-by-

document review of the documents claimed privileged, explaining the corresponding rule or

exception which may compel the production of the subpoenaed documents;

       g.     The chancery court shall conduct further hearings as are required to carry out

the directions of this Order; and

       h.     That the chancery court defer consideration of further sanctions until the

discovery issues are fully resolved.

       IT IS FURTHER ORDERED:

       a.     That the stay entered by this Court on June 20, 2013, and continued on August

29, 2013, is vacated effective upon the issuance of this Court’s mandate;

       b.     That the Motion to Dismiss and to Strike the Motion for Immediate,

Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling


                                             10
Based on Newly Discovered Evidence and Related Legal Issues, or to Partially Strike is

hereby denied;

      c.     That the Respondent’s Rule 48A(d) Mississippi Rules of Appellate Procedure

Motion for Access to Sealed Document is hereby denied; and

      d.     That the Respondent is taxed with all costs of this appeal.

      SO ORDERED, this the       7 th day of May, 2014.


                                                /s/ William L. Waller, Jr.
                                             WILLIAM L. WALLER, JR.,
                                             CHIEF JUSTICE
                                             FOR THE COURT




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