Wisconsin Court of Appeals rules attorney work product is exempt from open record requests.

• Author: Ziemer, David

Byline: David Ziemer

Attorney work product is exempt from open record requests, the Wisconsin Court of Appeals held on Aug. 29. Patrick Seifert played varsity football at Sheboygan Falls High School when a dispute arose between him and his parents, and Coach Dan Juedes. The Seiferts contended that Juedes had belittled Patrick in front of the team for not playing, per his doctor's orders, while injured, and that Juedes had withheld mail from college recruitment programs addressed to Patrick in care of the school. In April 2005, the Seiferts filed a Notice of Injury with the school district relating to damages they claimed Juedes' actions caused Patrick, and later threatened litigation at a school board meeting. The district then hired its general counsel, Davis & Kuelthau, S.C., to investigate the Seiferts' complaints against Juedes and report back with a recommendation to the School Board. The firm conducted the requested investigation and retained all notes and documents generated in the course of the inquiry. In October, the Seiferts filed a request under the Open Records Law for all documents generated in the course of the investigation, but the district denied the request. The Seiferts then sought a writ of mandamus pursuant to the law, but Sheboygan County Circuit Court Judge James J. Bolgert denied the petition. The Sieferts appealed, but the court of appeals affirmed, in a decision by Judge Neal Nettesheim. The court concluded that the documents fell into the exception for attorney work product. The privileged status of attorney work product was recognized by the Wisconsin Supreme Court in State ex rel. Dudek v. Circuit Ct. for Milwaukee County, 34 Wis. 2d 559, 589, 150 N.W.2d 387 (1967), and is now codified in sec. 804.01(2)(c)1. The court concluded that, since the records sought by the Seiferts were generated in response to the Seiferts' formal indication that they intended to sue the district, via their Notice of Injury and their declarations at the school board meeting, the records were excepted from disclosure. To conclude otherwise, the court concluded, would circumvent the privilege, and excepted the records under sec. 19.35(1)(a). The Seiferts argued that a Notice of Claim merely preserves the right to sue, but does not constitute a threat of litigation. However, the court disagreed, concluding that a notice of claim also conveys a clear threat of potential litigation. Although the court found that it could have ended its...