PIERCE, Justice, for the Court:
¶ 1. The Hinds County Circuit Court imposed a joint and several monetary sanction for "intentional discovery violations" in the amount of $1,560,642.83 against Eaton Corporation, its Mississippi attorney, Michael S. Allred, and two Wisconsin attorneys for Eaton, Michael H. Schaalman and Gregory T. Everts. The circuit court also dismissed with prejudice all of Eaton's claims against Frisby Aerospace and related parties, for "improper ex parte and fraudulent contacts" between attorney Ed Peters and then-presiding Hinds County Circuit Judge Bobby DeLaughter. Both Eaton and Allred appeal the monetary sanction (Schaalman filed an appeal but dismissed it voluntarily, and Everts did not appeal). Eaton also appeals the dismissal of its lawsuit against Frisby.
¶ 2. In July 2004, Eaton Corporation (Eaton), represented by Allred, filed suit in the Hinds County Circuit Court against Frisby Aeronautics and numerous individuals (Frisby), alleging that six engineers formerly employed by Eaton and subsequently hired by Frisby in 2001 had stolen proprietary information and trade secrets from Eaton. In September 2004, Frisby filed a countersuit against Eaton, alleging, inter alia, defamation. Frisby, suspecting that Milan Georgeff, a former Frisby employee, had been in contact with Eaton as a potential witness in the case, alleged in the countersuit that Eaton's claims were
¶ 3. The case was assigned to then-Hinds County Circuit Judge DeLaughter. In December 2004, Michael H. Schaalman, Gregory T. Everts, W. Brian Gasscher, and Emily Feinstein of the law firm Quarles & Brady, based in Wisconsin, were admitted pro hac vice as counsel for Eaton.
¶ 4. Prior to the filing of Eaton's suit against Frisby, Eaton reported the matter to the Federal Bureau of Investigation (FBI) and the U.S. Attorney's Office, and a criminal investigation of Frisby ensued. In January 2004, the FBI raided Frisby's offices and interviewed some of the defendant engineers in their homes. The FBI found some 16,000 pages of "technical data" that the defendant engineers had brought with them from Eaton. Criminal charges were filed against five of the engineers for violations of the Federal Economic Espionage Act, involving the same alleged theft that is at the core of Eaton's civil action in this cause. In May 2012, the U.S. Attorney's Office, under a newly appointed U.S. attorney, dismissed the indictments.
¶ 5. During discovery in the instant matter, Frisby propounded extensive interrogatories to which Eaton responded through Allred. On February 25, 2005, Eaton, per its attorney, Allred, served an answer to what has been labeled as "Interrogatory No. 3." Interrogatory No. 3 reads as follows:
¶ 6. Eaton's response to Interrogatory No. 3 identified an agreement and "communications" Eaton had with Georgeff. The response, in part, was as follows:
¶ 7. On February 28, 2005, Frisby's counsel, Robert Baron, via a telephone call to Schaalman, Eaton's Wisconsin counsel, challenged Eaton's assertion of privilege.
¶ 8. On November 2, 2005, the Eaton-Georgeff agreement was produced to Frisby in a wrongful-discharge lawsuit filed by Georgeff against Frisby in North Carolina. On January 4, 2006, Frisby filed a motion in the Mississippi case to dismiss and for sanctions against Eaton for unlawfully compensating a fact witness.
¶ 9. On January 17, 2006, Eaton filed a motion to refer the matter to a special master regarding Frisby's motion to dismiss and for sanctions. Judge DeLaughter appointed Special Master Jack F. Dunbar to resolve the discovery disputes between Eaton and Frisby.
¶ 10. On March 23, 2006, Dunbar issued a report and recommendation (R & R) rejecting Eaton's argument that the joint-defense privilege applied to protect the Georgeff agreement from disclosure.
¶ 11. On June 13, 2006, Dunbar issued an R & R regarding Eaton's alleged discovery violations. Dunbar found that:
(Emphasis original).
¶ 12. Dunbar found that, in response to Frisby's discovery request(s), Eaton did not fairly or adequately identify the existence of the consulting agreement and other documents relating to the "arrangement" with Georgeff. The answer, according to Dunbar, was "inaccurate and misleading." Dunbar said the failure to list the document on a privilege log was not a discovery violation because Frisby was "aware of Eaton's privilege claims asserted in all its answers to all discovery." Dunbar recommended that Frisby's motion to dismiss be denied because its defense of the case had not been prejudiced. Dunbar also recommended that Eaton and outside Wisconsin counsel be sanctioned in an amount equivalent to Frisby's expenses incurred in pursuing its motion to dismiss. Dunbar recommended further discovery to determine "who" (and with what "intent") was involved in the discovery violations. On July 24, 2006, Judge DeLaughter adopted Dunbar's R & R and directed the parties to abide by the terms and provisions thereof. Thereafter, Dunbar permitted and oversaw discovery, including depositions.
¶ 13. On December 5, 2006, Dunbar issued a supplemental R & R (December 2006 R & R), regarding the "Responsibility for Discovery Violations, Intent and Recommended Sanctions," finding that Eaton's discovery answers were "truly false" in an "intentional effort to mislead." Dunbar recommended an award of monetary sanctions to make Frisby whole, which included reimbursing Frisby for all expenses, attorneys' fees, and special-master fees, reasonably incurred by Frisby in the discovery-violation proceedings.
¶ 14. In the December 2006 R & R, Dunbar found that, although a "limited indemnity agreement" was not referenced in the privilege log later filed by Eaton on June 10, 2005, Eaton did give notice to Frisby in its response to the "Interrogatory No. 3," that the "limited indemnity agreement" and "any communications" related thereto were subject to privileges. According to Dunbar, this answer suggested there might be (but did not acknowledge there were) communications relating to the "limited indemnity agreement." The subsequent privilege log served on June 10, 2005, did not identify any Georgeff-related communications. Following receipt of the of the Eaton discovery responses filed in February 2005, and telephone conferences with Eaton counsel, Frisby counsel pressed for the production of what they understood was a document reflecting a "joint defense privilege" with Georgeff and Eaton's "indemnity" of him, as well as "communications" with Georgeff.
¶ 15. Dunbar found the exchange of letters between Eaton counsel and Frisby counsel instructive on the issues involved in this inquiry. On March 4, 2005, Baron wrote Schaalman, confirming a recent phone conversation with Schaalman:
(Emphasis in December 2006 R & R). According to Dunbar, Everts assumed the task of responding to these demands. On March 22, 2005, Baron wrote Everts to confirm their conversation of March 15, 2005, in which he made a further demand for "... the joint defense indemnity agreement... between Eaton and Milan Georgeff." Dunbar found that these letters of March 4 and March 22, 2005, indicate that Baron was laboring under the impression that there was but one document that set forth both a joint defense agreement and the indemnity agreement. But there were two separate documents; i.e., a joint or common defense agreement between Eaton and Georgeff and his attorney Marsala, and a separate document we now know as the consulting agreement, called a "limited indemnity agreement" in Eaton's responses to the defendant's discovery. Eaton never clarified Baron's misunderstanding.
¶ 16. Allred then became involved, writing Baron on March 30, 2005, and asserting a privilege as to Georgeff communications. Nevertheless he represented that Eaton "... will produce a privilege log relating to communications with Mr. Georgeff. This privilege log will be available shortly ...." Further, Allred advised, "We have disclosed the fact that Eaton has a joint defense agreement with Mr. Georgeff... we will not produce the agreement (on ground of privilege)...." No reference was made to an "indemnity agreement" in this letter.
¶ 17. On May 2, 2005, Baron wrote Allred and reminded him of his promise to produce the privilege log, as to communications with Georgeff. Allred replied on June 2, 2005, confirming recent agreements with Baron via phone conferences. Allred agreed to produce the documents provided to the government in connection with its criminal investigation (including what is know as the "Georgeff Statement" relating Georgeff's claims of knowledge of the alleged "trade secret" misappropriations), and further, Allred acknowledged a promise:
(Emphasis in December 2006 R & R). Everts, by letter of June 10, 2005, forwarded a "privilege log" identifying certain Bates-numbered documents. The log did not list or claim as privileged any Georgeff-Allred/Eaton communications. And, as Dunbar found, there were many such communications.
¶ 18. On September 2, 2005, having received neither the Georgeff communications nor a privilege log designating Georgeff communications as privileged, Baron wrote to Allred, Schaalman, and Everts with the following complaint:
¶ 19. In response, on October 21, 2005, Everts responded to the Baron complaints:
¶ 20. Everts later testified that he intended for the consulting agreement to be one of the two additional documents he promised Baron in his letter of October 21, 2005. Eaton, however, never produced the consulting agreement nor the Georgeff-Allred/Eaton communications prior to the filing of Frisby's motion to dismiss.
¶ 21. Prior to submitting the December 5 R & R, Dunbar had provided a draft of the R & R to the parties on November 20, 2006. Around this time, Allred recommended to Schaalman and Vic Leo, Vice President and Chief Inhouse Counsel for Eaton, that Eaton hire former Hinds County District Attorney Ed Peters. Judge DeLaughter had worked for Peters as an assistant district attorney for many years prior to becoming a circuit judge. In a December 1, 2006, email from Allred to Schaalman, Leo, and Sharon O'Flaherty, another inhouse counsel for Eaton, Allred wrote:
Peters then began assisting in the case, without filing an entry of appearance.
¶ 22. On January 5, 2007, in response to Dunbar's December 5 R & R, Frisby filed a supplemented and renewed motion for dismissal and other sanctions based on payment of a fact witness and intentional discovery violations.
¶ 23. On February 2, 2007, Allred filed a notice of withdrawal as counsel for the Eaton plaintiffs. Judge DeLaughter entered an order on February 7, 2007, allowing Allred's withdrawal. Schaalman and the other above-mentioned members of the Wisconsin law firm of Quarles & Brady remained as outside counsel for Eaton. Eaton also hired attorneys Fred Banks and Reuben Anderson — former Mississippi Supreme Court justices — to replace Allred.
¶ 24. On April 6, 2007, Judge DeLaughter entered a memorandum opinion. Judge DeLaughter found that the answer to Interrogatory No. 3 was inaccurate because it revealed that Eaton would indemnify Georgeff if he were sued, but it did not mention payment of other expenses or an offer of employment if Georgeff could not find another job. Judge DeLaughter further found that anyone who read the answer "knew that some kind of indemnity agreement existed" and noted that no defendant had moved to compel as required by Ford Motor Co. v. Tennin, 960 So.2d 379 (Miss.2007). Judge DeLaughter placed the responsibility for the discovery
¶ 25. On April 16, 2007, Judge DeLaughter entered an order regarding the Georgeff agreement. In it, Judge DeLaughter denied Frisby's motion to dismiss; ordered that Allred would be fined in an amount to be later determined; ordered that Eaton, Schaalman, and Allred would be assessed the costs that Frisby would have incurred in preparing a motion to compel, which Frisby subsequently estimated was approximately $24,400 to $48,800. Judge DeLaughter also ruled that, should Eaton call Georgeff as a witness at trial, the following jury instruction would be granted:
¶ 26. In an order entered on October 29, 2007, Judge DeLaughter, finding that "discovery in this case is not being administered in a just manner," removed Dunbar as special master and appointed Larry Latham as his replacement.
¶ 27. In December 2007, Judge DeLaughter's relationship with Peters became the subject of a federal investigation when evidence from the FBI's investigation of Mississippi attorney Richard Scruggs suggested that Scruggs had used Peters in an unrelated case to influence Judge DeLaughter. Both Peters and DeLaughter were subpoenaed in the Scruggs investigation. In January 2008, Judge DeLaughter, sua sponte, recused himself from the Eaton/Frisby litigation, claiming that his assistance with the federal investigation into his relationship with Peters would impede the time he could devote to this case. That same month, the press reported that the federal investigation of Peters and Judge DeLaughter was being expanded to include an investigation of improper contacts between Peters and Judge DeLaughter in the Eaton/Frisby litigation. Judge DeLaughter thereafter was replaced by Judge Yerger.
¶ 28. On January 24, 2008, in light of Judge DeLaughter's recusal, Frisby moved to stay proceedings pending review of the orders rendered by Judge DeLaughter. On January 28, 2008, Latham reported to the circuit court facts which indicated that Peters had been involved in improper ex parte communications with Judge DeLaughter about replacing Dunbar with him. Latham stated that he believed it inappropriate to serve under
¶ 29. On January 29, 2008, Frisby filed a motion seeking to require that Eaton preserve the documents and evidence relating to the actions of Peters. Eaton subsequently agreed to such an order.
¶ 30. At a hearing on February 25, 2008, Eaton agreed with Frisby that the circuit court had the authority to and should review the rulings of Judge DeLaughter. On March 7, 2008, the circuit court entered an order staying discovery pending a review of Judge DeLaughter's prior orders and asking the parties to agree on a successor special master. When the parties did not agree, Judge Yerger chose David Dogan (who had not been suggested by either party), as reflected in an order filed on April 15, 2008. On April 24, 2008, Eaton objected to the order appointing Dogan to the extent that the duties of the special master would be related to the inquiry into the ex parte communications of Peters, the review of the prior orders of Judge DeLaughter, or the attendance at any deposition. In addition, Eaton contended that the Frisby parties should be excluded from conducting discovery into the ex parte communications, suggesting instead that the trial judge should act as the principal investigator. Dogan conducted a hearing on those objections on April 28 and entered an R & R on May 1, 2008, recommending their denial, which Judge Yerger accepted in substance on May 15, 2008.
¶ 31. Dogan issued an R & R on May 19, 2008 (the Dogan May 2008 Report) finding that Judge DeLaughter had improperly rejected the factual findings of Dunbar related to Eaton's discovery violations, and that sanctions should be imposed for those violations. On June 12, 2008, Judge Yerger, in a memorandum opinion and order, accepted the factual findings of Dogan and those of Dunbar which had been reviewed by Dogan, and accepted Dunbar's recommendation that a sanction be imposed making Frisby whole for the entire cost of the expenses incurred related to the discovery violation inquiry. Judge Yerger stated in the order:
¶ 32. On August 29, 2008, Dogan submitted an R & R as to the amount of fees and expenses that had been incurred by Frisby. Frisby had presented, by way of invoices, receipts, and affidavits, evidence it contended supported a cost award of $1,596,175.33. Eaton responded by calculating that it believed Frisby would be made whole financially by an award between $181,336.16 and $256,738.50. Relying on the McKee factors from McKee v. McKee, 418 So.2d 764 (Miss.1982), and the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct, Dogan's August 2008 R & R recommended that "Eaton, i.e., Mike Allred, Michael Schaalman, Greg Everts, and Eaton Corporation pay [Frisby] the amount of $1,560,642.83 ($1,596,175.33, less $1032.50, less $27,500.00 and $7,000.00) ...." After conducting a hearing on November 3, 2008, regarding that recommendation, Judge
¶ 33. The inquiry into Peters and the ex parte communications with Judge DeLaughter proceeded with discovery and depositions taken in the presence of Dogan, utilizing the same procedure that had been used with respect to Eaton's discovery violations. Dogan issued an R & R on June 6, 2008, recommending that there was sufficient basis, under Hewes v. Langston, 853 So.2d 1237 (Miss.2003), to conduct an in camera inspection of documents for which Eaton claimed privilege. In an order dated July 14, 2008, Judge Yerger accepted the finding that there was sufficient basis for such an in camera review and made detailed rulings as to which documents were to be produced for review. After Eaton had submitted those documents for in camera review, Dogan, on November 4, 2008, submitted an R & R recommending that the crime-fraud exception be applied to certain of those documents.
¶ 34. Over Frisby's objections, Eaton was permitted to submit in camera additional documents and to present testimony to Dogan at an in camera hearing from which Frisby was excluded. On February 9, 2009, Dogan provided a supplemental R & R recommending that the crime-fraud exception be applied to certain other documents. Judge Yerger conducted a hearing with respect to Eaton's objections to that supplemental R & R on April 2, 2009. On June 19, 2009, Judge Yerger issued a detailed thirty-six-page opinion concluding that the crime-fraud exception applied to certain documents. In that opinion, Judge Yerger ruled that Eaton's ex parte testimony presented to Dogan — the credibility of which Dogan already had rejected
¶ 35. Subsequent discovery included the depositions of numerous witnesses, including several of Eaton's lawyers, as well as Latham and others. DeLaughter and Peters, along with Mary Gaines, a former courtroom deputy who had worked with DeLaughter, were deposed but invoked the Fifth Amendment as to all substantive questions. As authorized by Judge Yerger's April 15, 2008, Order, Dogan attended most of the depositions — just as Dunbar had attended the earlier depositions. Additional evidence was provided when the United States District Court for the Northern District of Mississippi released
¶ 36. Following the conclusion of approximately eighteen months of discovery, Frisby filed on November 24, 2009, a renewed and supplemented motion to dismiss Eaton's claims, along with a substantial volume of depositions and exhibits in support thereof. On the same day, Dogan issued an R & R as to the depositions he had attended. In response to the renewed and supplemented motion to dismiss and the R & R reporting on the deposition, Judge Yerger directed Dogan to issue a R & R regarding the renewed and supplemented motion to dismiss.
¶ 37. On December 23, 2009, Eaton filed a motion objecting to the Special Master having any role in considering the motion to dismiss, argued that this matter should be resolved by a jury trial, and asserted that Judge Yerger should recuse himself as trial judge. On December 29, 2009, Judge Yerger ruled that no trial was required as to the sanctions motion and restated his prior ruling with respect to the reference to the special master.
¶ 38. At a hearing on May 14, 2010, Judge Yerger heard argument on the numerous evidentiary objections asserted by Eaton in an R & R dated April 20, 2010. Judge Yerger ruled and reiterated his prior rulings on those objections by order dated June 9, 2010.
¶ 39. On August 11, 2010, Dogan issued a lengthy R & R (Dogan August 2010 R & R) recommending that Frisby's motion to dismiss be granted. On September 10, 2010, Judge Yerger conducted a hearing on Eaton's objections to that R & R. On December 22, 2010, Judge Yerger adopted much of the Dogan August 2010 R & R and, based on his own review of the evidence, granted Frisby's motion to dismiss, and entering a final judgment and Rule 54(b) certification.
¶ 40. As reflected in the documents submitted to this Court in connection with the motion to stay appeal (filed May 10, 2012) and the motion to revoke Rule 54(b) certificate (filed September 27, 2010), Frisby contends it is now clear that Eaton improperly withheld highly relevant documents from Judge Yerger that further supported Judge Yerger's factual findings and added more detail about the knowledge of Eaton's inhouse counsel (including Eaton's general counsel) as to the ex parte communications of Peters with DeLaughter. In April 2012, Eaton had produced two previously concealed emails which show that several Eaton lawyers (including its general counsel) received notice of the ex parte communications of Peters with former Judge DeLaughter.
¶ 41. Judge Weill, who replaced Judge Yerger after his retirement, required explanatory affidavits from Eaton's lawyers and its CEO for the belated production of these documents. According to Frisby, the resulting affidavits made clear that the failure to produce the new documents could have resulted only from intentional misconduct, that Eaton purposefully allowed the destruction of documents that Eaton had been ordered to preserve, and that Eaton's lawyer had provided false affidavits to Judge Yerger. Judge Weill then ordered Eaton to produce additional documents for in camera review. After review, Judge Weill directed by order dated September 19, 2012, that a substantial number of additional documents be produced to Frisby.
¶ 42. Eaton requests this Court to take judicial notice of the new documents. Frisby agrees with Eaton's request and also requests that this Court take judicial notice of other additional documents that
¶ 43. Frisby further points out that this Court denied two motions filed by Frisby intended to allow this additional information to be reviewed by Judge Weill for the purpose of making additional findings. Frisby asks that, should there be any concern as to whether Judge Yerger's rulings should be affirmed, this Court reconsider those motions so that this Court may consider all of the evidence, including the additional evidence improperly concealed by Eaton.
¶ 44. We decline to take these additional documents into consideration for purposes of this appeal. And we now proceed to address the issues presented. Additional facts from the record designated under Judge Yerger's Rule 54(b) certification will be related in the discussion of the issues.
¶ 45. "Trial courts have considerable discretion in discovery matters and decisions will not be overturned unless there is an abuse of discretion." Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 996 (Miss.1999) (quoting Robert v. Colson, 729 So.2d 1243, 1245 (Miss.1999)). In reviewing a decision that is within the trial court's discretion, we first ask if the trial court applied the correct legal standard. Burkett v. Burkett, 537 So.2d 443, 446 (Miss.1989). We will affirm the trial court's decision "unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors." Id. (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 693 (Miss.1990)). In matters where a special master is appointed, the trial court shall accept the special master's factual findings unless manifestly wrong. Miss. R. Civ. P. 53. Thus, we do also.
¶ 46. Both Allred and Eaton contend that we should look at the discovery sanction de novo because the circuit court applied the wrong law. Eaton argues that the correct legal test, which the circuit court did not apply, is whether Eaton was "grossly indifferent to its discovery obligations," not whether it was responsible for some undefined "willful neglect." Eaton maintains that no one should have been sanctioned for an incorrect and incomplete description in an interrogatory answer where it asserted a privilege, it identified the agreement, and the description given was adequate to alert the opposing party to a need to file a motion to compel. Eaton also submits that Eaton itself should not have been sanctioned when it put the facts in outside counsel's hands and trusted counsel to decide the necessity and manner of disclosure.
¶ 47. Allred argues that nothing in the consulting agreement or any action taken under it is sanctionable under Mississippi Rule of Civil Procedure 37(b)(2), since protecting a whistleblower witness from loss for having the gumption to speak up is not improper. Allred contends that no judge or special master ever concluded that Eaton had agreed to pay Georgeff to provide favorable testimony. And Frisby's efforts
¶ 48. Both Eaton and Allred further argue that Eaton had asserted a privilege, the common litigation privilege, which no judge had yet rejected. Both maintain that disclosing the content of the consulting agreement would have waived that privilege.
¶ 49. At the outset, we find that the correct legal standard was applied in this matter. This Court has long held that our trial courts have the "discretion to impose sanctions for discovery violations which result from willful neglect, willful disobedience or cause undue advantage and surprise." State v. Blenden, 748 So.2d 77, 83 (Miss.1999) (citing Ladner v. Ladner, 436 So.2d 1366, 1370-71 (Miss.1983)). We see no distinction whatever between a trial court's finding of "gross indifference" or "willful negligence" to a discovery requirement. Both are "willful" violations and an abuse of the truth-seeking process. As this Court has explained:
Pierce v. Heritage Props., 688 So.2d 1385, 1388 (Miss.1997) (citing Medina v. Foundation Reserve Ins. Co., 117 N.M. 163, 870 P.2d 125, 126 (1994)). Therefore, we are left to decide only whether the record reflects that the trial court's monetary sanction against Allred and Eaton for discovery violations was an abuse of discretion.
¶ 50. As mentioned, in response to "Interrogatory No. 3," which required Eaton to identify any employment, consulting or other arrangement with the person who had provided the information upon which Eaton had predicated its complaint, Eaton proffered the following response in February 2005:
¶ 51. As Dunbar found, Dogan confirmed, and Judge Yerger concluded, this answer was false. Eaton had agreed to provide more than a "strictly limited indemnity agreement" to Georgeff. Eaton also had a "consulting agreement" with Georgeff under which Eaton had been paying Georgeff, and Eaton also had an agreement to provide employment to Georgeff until at least age 65.
¶ 52. Eaton was required to disclose this information to Frisby when Frisby
¶ 53. As discussed in the December 2006 R & R, Allred had submitted an affidavit to Dunbar which attempted to explain the interrogatory answer as mere inadvertence that had occurred in a late night drafting session. Dunbar rejected that explanation, finding that Allred's explanation for his error as "inadvertence" was not credible and that the answer was "truly false." Dunbar concluded that the interrogatory answer was prepared by Allred with "an intent to be inaccurate and misleading and that Allred [had] perhaps done so in the hope that Frisby would not be inclined to spend the effort to pursue the issue, because the agreement as described by Allred would only become effective if Georgeff were sued by Frisby." We find that the record evidence fully supports this conclusion.
¶ 54. Next, we reject Eaton's contention that it should not be held responsible for facts that were in outside counsel's hands and for trusting counsel to decide the necessity and manner of disclosure. To say that Eaton was a hapless client in this instance goes beyond the realm of logic and credulity. According to the record, the consulting agreement was executed on January 28, 2003, with the knowledge and approval of Leo and a number of other Eaton in-house lawyers. As Dunbar found, Eaton had made payments to Georgeff in the amount of $6,000, for "time" involved, and payments to Georgeff's attorney, Marsala, for $21,000 in attorneys' fees — even though Georgeff had not been sued by Frisby. According to the record, Eaton inhouse counsel Sharon O'Flaherty approved these payments. And the record is replete with revelations that these same individuals knew (or most certainly should have known) about "Interrogatory No. 3," and Allred's February 2005 response to it, long before Frisby obtained a copy of the consulting agreement in November 2005 by way of a document production by Georgeff in his litigation against Frisby in North Carolina.
¶ 55. As to the contention made with regard to the so-called "common litigation privilege," it too is without merit. A party may invoke a privilege in an answer to an interrogatory or document request. Whether the particular privilege is applicable, though, is ultimately for the trial court to determine, not the party or counsel. Mississippi Bar v. Mathis, 620 So.2d 1213, 1221 (Miss.1993). The proper procedure for invoking a privilege is for the party to object to the interrogatory or document request and affirmatively assert the privilege and "identify those documents and portions of documents for which it, in good faith, claims are privileged." Powell v. McLain, 105 So.3d 308, 312 (Miss.2012) (citing Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1248 (Miss.2005)). Here, Eaton asserted a privilege; but it failed to identify any of the "privileged" documents. As Dunbar found,
(Emphasis added.) Again, the record clearly supports this finding. And more significantly, Eaton had asserted the privilege in conjunction with a false and misleading response. We spoke to a similar finding in Mississippi Bar v. Land, 653 So.2d 899, 909 (Miss.1994), where we stated:
¶ 56. Likewise, we find without merit, the arguments that Eaton and Allred should not have been sanctioned because Frisby did not file a motion to compel without merit. As noted in Dunbar's December 2006 R & R and Dogan's May 2008 R & R, this Court has said that the preferred procedure is to move to compel once aware of an incomplete or evasive discovery response. Tennin, 960 So.2d 379; Warren v. Sandoz Pharms. Corp., 783 So.2d 735 (Miss.Ct.App.2000); Caracci, 699 So.2d at 546. Indeed, as this Court reiterated in Tennin:
Tennin, 960 So.2d at 393 (quoting Caracci, 699 So.2d at 557) (emphasis original). But, as Pierce instructs, this Court also remains steadfastly cognizant that our trial courts must have the authority to issue appropriate sanctions to what the discovery transgression warrants. See also M.R.C.P. 37(e) (providing that "the court may impose upon any party or counsel such sanctions as may be just, including the payment of reasonable expenses and attorneys' fees, if any party or counsel ... abuses the discovery process in seeking, making or resisting discovery").
¶ 57. In Pierce, this Court affirmed the trial court's dismissal of an action as a sanction imposed under Rule 37(b)(2) & (e) after determining that the plaintiff had willfully concealed the fact that another person was present when she was injured. Id. at 1387. Pierce is distinguishable from the case before us in that Rule 37(a), governing motions to compel discovery, was not at issue. But, in discussing discovery violations in general, Pierce cited and quoted with approval Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587, 452 S.E.2d 159 (1994). Pierce, 688 So.2d at 1390. Orkin had been sanctioned for providing a false interrogatory answer that denied the existence of documents that later came to light. Orkin, 452 S.E.2d at 161. There was no order to compel. Id. at 163. The Georgia Court of Appeals
Orkin, 452 S.E.2d at 163-64. Quoting from Orkin, the Pierce Court stated as follows:
Pierce, 688 So.2d at 1391.
¶ 58. Here, as Dunbar found, Eaton took affirmative actions to conceal the consulting agreement, and Eaton's continuing evasive representations and failures of Eaton's counsel to produce the promised communications to Frisby were evidence of an intent to mislead and "hide the ball." Even after Eaton lawyer Feinstein made it clear in emails to the other Eaton lawyers the consulting agreement and related documents had not been identified or produced, Eaton's lawyers took no corrective action.
¶ 59. When the consulting agreement was disclosed in the North Carolina litigation, Eaton's discovery malfeasance was exposed. And the matter then developed into an onion-like inquiry (at the behest of Eaton) that ultimately revealed layers of
¶ 60. Accordingly, we find no abuse of discretion in the trial court's decision to impose the monetary sanction issued in this instance, despite the absence of a motion to compel. As the proceedings that ensued following Frisby's January 2006 motion to dismiss illustrate, a motion to compel would have been futile for Frisby based upon Eaton's tactics in this matter.
¶ 61. This issue is without merit.
¶ 62. When the trial court imposes the sanction of dismissing any part of an action, this Court reviews that dismissal under an abuse-of-discretion standard. Pierce, 688 So.2d at 1388. We will affirm the trial court's decision to dismiss unless there is a "definite and firm conviction that the court below committed a clear error of judgment in the conclusion that it reached upon weighing of relevant factors." City of Jackson v. Rhaly, 95 So.3d 602, 607 (Miss.2012) (emphasis original).
¶ 63. The circuit court dismissed Eaton's claims against Frisby based on a finding of clear and convincing evidence that:
¶ 64. Eaton argues that the standard of review is de novo because the trial court did not follow applicable law when exercising its discretion and dismissing Eaton's case for "fraud on the court." Eaton contends that the procedure invented by Dogan and the trial court trampled on Eaton's rights in many ways. Among other things, Eaton never got an evidentiary hearing and was hamstrung by privilege rulings which kept it from presenting a substantial part of its evidence. In addition, the trial court abused its discretion by making numerous errors of law. According to Eaton's brief:
Eaton further contends that, even if this Court were to accept the circuit court's findings that Eaton's inhouse counsel knew that Peters had talked directly to Judge DeLaughter ex parte, that fact is not dispositive. This is because any contact with the court that the evidence shows Eaton knew about is not so clearly and convincingly a contact about the merits of the case designed to influence the judge as to merit the imposition of the sanction of dismissal.
¶ 65. As with the first issue, we do not need to review de novo the trial court's decision to dismiss, because we find that the trial court applied the correct legal standard. Again, we are left to decide only whether the record reflects that the trial court's dismissal of Eaton's claims against Frisby reflects an abuse of discretion.
¶ 66. In Judge Yerger's December 2010 ruling, Judge Yerger found that Dogan's August 11, 2010, R & R made very comprehensive findings of fact regarding the events — which Judge Yerger found provided clear and convincing evidence of improper contacts between Peters and Judge DeLaughter. Dogan made additional detailed findings of fact regarding clear evidence that Eaton knew or should have known of these improper contacts on its behalf. Judge Yerger adopted those findings and discussed a few examples and "red flags" of direct or implicit knowledge on the part of Eaton, as follows:
Judge Yerger found that the above facts and findings, coupled with reasonable inferences, serve as direct evidence and/or strong circumstantial evidence of Eaton's knowledge (through Eaton's corporate officers and Wisconsin counsel) of Peters's improper contacts with Judge DeLaughter.
¶ 67. In reviewing Dogan's August 11, 2010, R & R, we find that Dogan set forth a number of events and rulings by Judge DeLaughter in the case which Dogan found were evidence of improper influence of Peters upon DeLaughter. As mentioned, Judge DeLaughter rejected most of Dunbar's findings in the December 2006 R & R, reporting Eaton's intentional discovery violations. Dogan found that Judge DeLaughter's rejection of Dunbar's fact findings is explained by Peters's confession to the FBI. In his FBI statement, Peters said that he read Dunbar's December 2006 R & R during a meeting at Allred's office. Peters then later had lunch with DeLaughter and told him that he and attorney Reuben Anderson were representing Eaton. Peters told DeLaughter that the December 2006 R & R was very hurtful to Eaton. Peters asked DeLaughter to read the report for its content and to be cognizant of the "smoke and mirrors" that he believed were contained in the report. Peters reported to the FBI that "DeLaughter did eventually change the Special Master's report to a position that was helpful to Eaton."
¶ 68. According to Dogan, the June 7, 2007, scheduling order effectively rejected Frisby's motion that Eaton identify its trade secrets in time to allow Frisby to conduct discovery on those issues prior to completion of the discovery deadlines established by the scheduling order. Peters's involvement in the order is shown by an improper ex parte communication from Peters to "Mary Gaines — for the judge." The evidence reflects that Gaines concealed Peters's improper communications with DeLaughter. Gaines sent Peters a separate copy of the scheduling order within minutes after she asked counsel for Frisby to distribute copies to all parties.
¶ 69. Dogan noted that Judge DeLaughter's removal of Dunbar occurred in October 2007 following two Dunbar R & R's in 2007 that were favorable to Frisby regarding discovery matters. Dunbar had found that Eaton and its counsel had committed multiple intentional discovery violations. Next, on October 10, 2007, Dunbar recommended sanctions for Eaton's failure to provide discovery with respect to trade secrets based upon prior orders by Judge DeLaughter requiring that Eaton provide such discovery. Judge DeLaughter, however, subsequently refused to follow this recommendation, despite his earlier order to the contrary on this issue. Then on October 23, 2007, Dunbar recommended that Eaton be required to provide testimony at a Rule 30(b)(6) deposition on matters critical to the case. See Miss. R. Civ. P. 30(b)(6). In less than a week following the R & R, Judge DeLaughter removed Dunbar as special master and replaced him with Latham.
¶ 70. Peters admitted to the FBI that he had ex parte communications with DeLaughter
¶ 71. Latham's testimony reveals that he was contacted by Peters about service as the special master at a time when Frisby did not know that Judge DeLaughter intended to replace Dunbar. DeLaughter knew that Peters had contacted Latham, as shown by his letter delivered to Latham on October 29. That letter noted that Latham had preliminarily agreed to serve as special master, a fact which Latham testified he had made known only to Peters. Peters understood these communications to be improper, since Peters left word that Latham was not to mention Peters's name in connection with this matter.
¶ 72. Also in Dogan's August 11, 2010 R & R, Dogan found that the following evidence reflected that Eaton knew or should have known about the misconduct of Peters in his ex parte communications with Judge DeLaughter on Eaton's behalf, which we relate, in part, verbatim from Dogan's August 2010 R & R:
Id. at 370. In Barrett, the trial court found that members of a joint venture, Scruggs Katrina Group, were vicariously liable for partner Richard Scruggs's bribery attempt and other misconduct, therefore dismissing the underlying action. We reversed the trial court's dismissal, finding that there was "no evidence of `red flags' that should have alerted the [other members/partners] to Scruggs's activities." Id. at 376.
¶ 74. Unlike in Barrett, we find the evidence here clearly and convincingly shows that Eaton, through its officers, knew that Peters had engaged in improper ex parte communication with Judge DeLaughter on Eaton's behalf to advance Eaton's interests in this lawsuit. And we reject all of Eaton's above-mentioned contentions to the contrary. The aforementioned findings, along with other findings contained in Dogan's August 11, 2010, R & R, as adopted by the circuit court, are fully supported by the record.
¶ 75. As Dogan sharply concluded in his August 2010 R & R, this misconduct prejudiced not only Frisby, but "has prejudiced the administration of justice and the integrity of [its] proceedings." And we find no abuse of discretion in the trial court's ultimate decision to right that wrong by issuing the most severe sanction at its disposal — dismissing with prejudice Eaton's lawsuit against Frisby.
¶ 76. This issue is without merit.
¶ 77. Eaton contends that its due-process rights were denied by not being allowed an evidentiary hearing presided over by a specially appointed judge from outside Hinds County, in which it could present evidence showing the legitimacy of Peters's work for Eaton.
¶ 78. This issue is without merit. As the trial court found, both parties were provided ample notice that a special master would be preside over depositions and render rulings that would stand as rulings of the court. The circuit court's massive docket with limited staff on this case necessitated the use of a special master. And it was Eaton who initially requested a special master and agreed to the procedures thereby used after Frisby filed its first motion to dismiss. Further, both parties were given the opportunity to present oral arguments to the trial court prior to the imposition of sanctions.
¶ 79. The circuit court's imposition of monetary sanctions for discovery abuses and its decision to dismiss Eaton's claims against Frisby are affirmed.
¶ 80.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.
