804.01 NoteThe Committee has repeatedly been advised that the risk of privilege waiver, and the work necessary to avoid it, add to the costs and delay of discovery. When the review is of electronically stored information, the risk of waiver, and the time and effort required to avoid it, can increase substantially because of the volume of electronically stored information and the difficulty in ensuring that all information to be produced has in fact been reviewed. Rule 26(b)(5)(A) provides a procedure for a party that has withheld information on the basis of privilege or protection as trial-preparation material to make the claim so that the requesting party can decide whether to contest the claim and the court can resolve the dispute. Rule 26(b)(5)(B) is added to provide a procedure for a party to assert a claim of privilege or trial-preparation material protection after information is produced in discovery in the action and, if the claim is contested, permit any party that received the information to present the matter to the court for resolution.

804.01 NoteRule 26(b)(5)(B) does not address whether the privilege or protection that is asserted after production was waived by the production. The courts have developed principles to determine whether, and under what circumstances, waiver results from inadvertent production of privileged or protected information. Rule 26(b)(5)(B) provides a procedure for presenting and addressing these issues. Rule 26(b)(5)(B) works in tandem with Rule 26(f), which is amended to direct the parties to discuss privilege issues in preparing their discovery plan, and which, with amended Rule 16(b), allows the parties to ask the court to include in an order any agreements the parties reach regarding issues of privilege or trial-preparation material protection. Agreements reached under Rule 26(f)(4) and orders including such agreements entered under Rule 16(b)(6) may be considered when a court determines whether a waiver has occurred. Such agreements and orders ordinarily control if they adopt procedures different from those in Rule 26(b)(5)(B).

804.01 NoteA party asserting a claim of privilege or protection after production must give notice to the receiving party. That notice should be in writing unless the circumstances preclude it. Such circumstances could include the assertion of the claim during a deposition. The notice should be as specific as possible in identifying the information and stating the basis for the claim. Because the receiving party must decide whether to challenge the claim and may sequester the information and submit it to the court for a ruling on whether the claimed privilege or protection applies and whether it has been waived, the notice should be sufficiently detailed so as to enable the receiving party and the court to understand the basis for the claim and to determine whether waiver has occurred. Courts will continue to examine whether a claim of privilege or protection was made at a reasonable time when delay is part of the waiver determination under the governing law.

804.01 NoteAfter receiving notice, each party that received the information must promptly return, sequester, or destroy the information and any copies it has. The option of sequestering or destroying the information is included in part because the receiving party may have incorporated the information in protected trial-preparation materials. No receiving party may use or disclose the information pending resolution of the privilege claim. The receiving party may present to the court the questions whether the information is privileged or protected as trial-preparation material, and whether the privilege or protection has been waived. If it does so, it must provide the court with the grounds for the privilege or protection specified in the producing party’s notice, and serve all parties. In presenting the question, the party may use the content of the information only to the extent permitted by the applicable law of privilege, protection for trial-preparation material, and professional responsibility.

804.01 NoteIf a party disclosed the information to nonparties before receiving notice of a claim of privilege or protection as trial-preparation material, it must take reasonable steps to retrieve the information and to return it, sequester it until the claim is resolved, or destroy it.

804.01 NoteWhether the information is returned or not, the producing party must preserve the information pending the court’s ruling on whether the claim of privilege or of protection is properly asserted and whether it was waived. As with claims made under Rule 26(b)(5)(A), there may be no ruling if the other parties do not contest the claim.

804.01 AnnotationThe trial court has no authority to order the production of documents relevant to a claim upon which it could grant no relief. State ex rel. Rilla v. Circuit Court, 76 Wis. 2d 429, 251 N.W.2d 476 (1977).

804.01 AnnotationDiscovery, although it has a purpose of finding admissible evidence, does not imply that what is discovered will be admissible. Shibilski v. St. Joseph’s Hospital of Marshfield, Inc., 83 Wis. 2d 459, 266 N.W.2d 264 (1978).

804.01 AnnotationWhen the cost of discovery was several times greater than the claim for damages, a protective order against discovery was appropriate. Vincent & Vincent, Inc. v. Spacek, 102 Wis. 2d 266, 306 N.W.2d 85 (Ct. App. 1981).

804.01 AnnotationA highly placed state official who seeks a protective order should not be compelled to testify on deposition unless a clear showing is made that the deposition is necessary to prevent prejudice or injustice. State v. Beloit Concrete Stone Co., 103 Wis. 2d 506, 309 N.W.2d 28 (Ct. App. 1981).

804.01 AnnotationPublic records germane to pending litigation were available under s. 19.35 even though the discovery cutoff deadline had passed. State ex rel. Lank v. Rzentkowski, 141 Wis. 2d 846, 416 N.W.2d 635 (Ct. App. 1987).

804.01 AnnotationA lawyer’s decision to spend a client’s resources on photographic or video surveillance is protected work product. Disclosure of the fact of the surveillance and description of the materials obtained would impinge on the core of the work-product doctrine. Ranft v. Lyons, 163 Wis. 2d 282, 471 N.W.2d 254 (Ct. App. 1991).

804.01 AnnotationA litigant’s request to see the litigant’s file that is in the possession of current or former counsel does not waive the attorney-client and work-product privileges and does not allow other parties to the litigation discovery of those files. Borgwardt v. Redlin, 196 Wis. 2d 342, 538 N.W.2d 581 (Ct. App. 1995), 94-2701.

804.01 AnnotationA substantiated assertion of privilege is substantial justification for failing to comply with an order to provide or permit discovery. Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), 96-3356.

804.01 AnnotationUnfiled pretrial materials in a civil action between private parties are not public records, and neither the public nor the press has either a common law or constitutional right of access to those materials. State ex rel. Mitsubishi Heavy Industries America, Inc. v. Circuit Court, 2000 WI 16, 233 Wis. 2d 1, 605 N.W.2d 868, 99-2810.

804.01 AnnotationThe test of whether the work-product doctrine under sub. (2) (c) applies is whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. Once a matter is classified as work product, the party moving for discovery must make an adequate showing that the information sought is unavailable from other sources and that a denial of discovery would prejudice the movant’s preparation for trial. Lane v. Sharp Packaging Systems, Inc., 2002 WI 28, 251 Wis. 2d 68, 640 N.W.2d 788, 00-1797.

804.015(2)(2) Unless ordered by the court, a prisoner in an action or special proceeding may not obtain discovery before the court receives a copy of the answer or other responsive pleading in the action commenced by the prisoner. If a defendant submits a motion to dismiss or a motion for summary judgment, no discovery may be obtained until the court decides that the prisoner has a reasonable opportunity to prevail on the merits, or until the court decides the merits of the motion, unless the court orders a party to submit to discovery.

804.015(3)(3) If a court allows a prisoner to obtain discovery under sub. (2) before the court decides that the prisoner has a reasonable opportunity to prevail on the merits, receives a copy of the answer or other responsive pleading in the action, or decides the merits of a motion to dismiss or a motion for summary judgment, the court order shall be narrowly tailored to limit the discovery to allow only discovery that is essential to enable the prisoner to obtain the evidence necessary to his or her case. The court shall limit the discovery so as to provide a minimal intrusion in the activities of any person subject to discovery under this subsection.