Baldus et al v. Brennan et al

Filing 82

ORDER signed by Judge J P Stadtmueller on 12/20/11: granting in part 77 motion of the Wisconsin State Assembly and the Wisconsin State Senate to clarify the fact that Mr. Handrick is not an attorney and is employed by Reinhart Boerner Van Deuren, S.C.; and, denying in part 77 motion of the Wisconsin State Assembly and the Wisconsin State Senate to clarify to the extent that those parties seek application of privilege to shield Mr. Handrick from discovery - as discussed, privilege does not apply to Mr. Handrick, his work product, or his discussions with the outside counsel of the State Assembly and State Senate. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALVIN BALDUS, CARLENE BECHEN, ELVIRA
BUMPUS, RONALD BIENDSEIL, LESLIE W DAVIS,
III, BRETT ECKSTEIN, GLORIA ROGERS, RICHARD
KRESBACH, ROCHELLE MOORE, AMY RISSEEUW,
JUDY ROBSON, JEANNE SANCHEZ-BELL,
CECELIA SCHLIEPP, TRAVIS THYSSEN, CINDY
BARBERA, RON BOONE, VERA BOONE,
EVANJELINA CLEERMAN, SHEILA COCHRAN,
MAXINE HOUGH, CLARENCE JOHNSON,
RICHARD LANGE, and GLADYS MANZANET

Case No. 11-CV-562
JPS-DPW-RMD

Plaintiffs,
TAMMY BALDWIN, GWENDOLYNNE MOORE and
RONALD KIND,
Intervenor-Plaintiffs,
v.
Members of the Wisconsin Government
Accountability Board, each only in his official
capacity: MICHAEL BRENNAN, DAVID
DEININGER, GERALD NICHOL, THOMAS CANE,
THOMAS BARLAND, and TIMOTHY VOCKE, and
KEVIN KENNEDY, Director and General Counsel for
the Wisconsin Government Accountability Board,
Defendants,
F. JAMES SENSENBRENNER, JR., THOMAS E.
PETRI, PAUL D. RYAN, JR., REID J. RIBBLE, and
SEAN P. DUFFY,
Intervenor-Defendants.
VOCES DE LA FRONTERA, INC., RAMIRO VARA,
OLGA VARA, JOSE PEREZ, and ERICA RAMIREZ,
Plaintiffs,
v.
Members of the Wisconsin Government
Accountability Board, each only in his official
capacity: MICHAEL BRENNAN, DAVID
DEININGER, GERALD NICHOL, THOMAS CANE,
THOMAS BARLAND, and TIMOTHY VOCKE, and
KEVIN KENNEDY, Director and General Counsel for
the Wisconsin Government Accountability Board,
Defendants.

Case No. 11-CV-1011
JPS-DPW-RMD

ORDER

Before WOOD, Circuit Judge, DOW, District Judge, and STADTMUELLER,
District Judge
The Wisconsin State Assembly and Senate (“the Legislature”) moved
this Court, on December 13, 2011, to clarify its prior December 8, 2011 Order,
which denied the Legislature’s motion to quash the plaintiffs’ subpoena of
Mr. Joseph Handrick. (Docket #63, #74, #77). In seeking clarification, the
Legislature points out that Mr. Handrick is not an attorney; the Court had
misidentified Mr. Handrick as an attorney in its December 8, 2011 Order.
(Docket #74). In fact, Mr. Handrick is a “Government Relations Specialist,”
working for the law firm Reinhart Boerner Van Deuren, S.C. (“Reinhart”),
who was hired by the Legislature through the law firm Michael Best &
Friedrich, LLP (“Michael Best”), which acts as outside counsel to the
Legislature. (Docket #77). While the Court appreciates having the benefit of
this clarification, it does not change the Court’s analysis. Privilege does not
protect Mr. Handrick, items he possesses, or discussions he had with the
Legislature’s outside counsel, from the plaintiffs’ discovery request.
In their motion to clarify, perhaps better described as a motion for
reconsideration, the Legislature argues that the Court incorrectly denied Mr.
Handrick’s entitlement to privilege. First, the Legislature argues that Michael
Best retained Mr. Handrick in anticipation of litigation, and thus his opinions
and conclusions should be considered work product. (Non-Parties’ Mot. to
Clarify, 3 (citing Marylanders for Fair Representation v. Schaefer, 144 F.R.D. 292,
303 (D. Md. 1992))). Next, the Legislature argues that any of Mr. Handrick’s
communications with the Legislature’s outside counsel is privileged (Non-

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Parties’ Mot. to Clarify, 3-4 (citing Estate of Chopper v. R. J. Reynolds Tobacco
Co., 195 F.R.D. 648, 651–52 (N.D. Iowa 2000))).
There are several issues that the Court looks to in resolving these
competing matters. First, the Court finds that Mr. Handrick was consulted
by the Legislature independently and, therefore, the attorney-client privilege
does not apply. “Where a client consults an expert independently, then
[attorney-client] privilege will not apply.” Marylanders, 144 F.R.D. at 303. The
Court finds that the Legislature hired Mr. Handrick and, therefore, consulted
him independently, as opposed to Michael Best having consulted him. In the
engagement letter sent by Reinhart to Michael Best, Reinhart states that it is
the firm’s understanding that Mr. Handrick’s “clients are the Wisconsin State
Senate . . . and State Assembly.” (Docket #78, Ex. 2). And, in an email sent to
Reinhart, Michael Best acknowledges that “the sole responsibility for
payment of amounts due to you rests with the Client [the Legislature].”
(Docket #78, Ex. 1). So, in fact, the Legislature—with the benefit of taxpayer
money—hired Mr. Handrick and paid him $5,000 per month for his services.
(Docket #78, Ex. 2). The Legislature may not shield the opinions and
conclusions of an individual hired with taxpayer money, simply by funneling
the hiring of that individual through outside counsel. If the Legislature was
the client paying Mr. Handrick—a non-lawyer—then his opinions and
conclusions are not subject to any work-product or attorney-client privilege.
See Marylanders, 144 F.R.D. at 303. As such, having found the Legislature to
be Mr. Handrick’s client, the Court finds that attorney-client privilege does
not apply to Mr. Handrick’s opinions and conclusions.

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Next, the Court concludes that Mr. Handrick’s work-product is not
privileged. If the Legislature did not retain Mr. Handrick in anticipation of
litigation, then his work-product is not privileged. Id. While the Legislature
may have reasonably believed that litigation would result from its
redistricting efforts, the Court declines to hold that Mr. Handrick’s workproduct is privileged. To do so would be a slap in the face to Wisconsin’s
citizens: essentially, the Court would be saying that the Legislature could
shield all of its actions from any discovery. The Legislature could always have
a reasonable belief that any of its enactments would result in litigation. That
is the nature of the legislative process: it often involves contentious issues
that the public may challenge as being unconstitutional. As such, if the
Legislature wished to obscure its legislative actions from the public eye then,
conceivably, all it would need to do would be to retain counsel or other agent
that it termed to be “in anticipation of litigation.” The Court is unwilling to
travel that road, for it would “be both unseemly and a misuse of public
assets” to permit an individual hired with taxpayer money “to conceal from
the taxpayers themselves otherwise admissible evidence” of allegedly
unconstitutional motives affecting their voting rights. See In re Witness Before
the Special Grand Jury 2000-2, 288 F.3d 289, 293 (7th Cir. 2002) (discussing a
state lawyer’s refusal to discuss an officeholder’s wrongdoing in a criminal
case; while the comparison of Mr. Handrick to a state lawyer is not exact, the
Court finds it close enough to reach the seed of the court’s concern in In Re
Witness). Thus, the Court relies on a principle widely accepted in insurance
law (another context in which litigation could reasonably be anticipated at
nearly any point): “[m]aterials prepared in the ordinary course of a party’s

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business,”—here, the Legislature enacting laws—“even if prepared at a time
when litigation was reasonably anticipated, are not work product.”
Continental Cas. Co. v. Marsh, No.01-0160, 2004 WL 42364, at *8 (N.D. Ill. Jan.
6, 2004) (citing Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 661 (S.D. Ind.
1991)); see also Dawson v. New York Life Ins. Co, 901 F.Supp. 1362 (N.D. Ill.
1995), Sec. Exch. Comm’n v. Credit Bancorp, Ltd., No. 99-CIV-113951RWS, 2002
WL 59418, at *2 (S.D.N.Y. Jan. 16, 2002). Because the Legislature can always
anticipate litigation, and the Court will not act to conceal the Legislature’s
actions from the public, the Court finds that Mr. Handrick’s work product is
not protected by privilege.
Finally, the Court finds that privilege does not afford protection to Mr.
Handrick’s communications with the Legislature’s outside counsel. The
Legislature argues that Mr. Handrick’s communications with Michael Best
are not discoverable. (Non-Parties’ Mot. to Clarify, 3–4 (citing Estate of
Chopper, 195 F.R.D. at 651–52)). As a threshold matter, the Court notes that
the case cited by the Legislature for the very broad assertion that Mr.
Handrick’s communications with outside counsel are privileged is but
marginally applicable to the case at hand. The case cited by the Legislature
deals only with work product given by a party’s attorneys to an expert
retained in preparation of litigation. Estate of Chopper, 195 F.R.D. at 650–51.
Thus, there are two incongruities between Estate of Chopper and the case at
hand: (1) here, the asserted privilege would cover the work product of a
non-party’s attorneys, as opposed to a party’s attorneys; and (2) as discussed
above, the Court has found that Mr. Handrick was not retained in
anticipation of litigation. Further, the Legislature relies on Estate of

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Chopper—a case decided by a district court of the Eighth Circuit—for a
contention that has been resolved in an opposite way by one of the Seventh
Circuit’s own district courts: in Karn v. Ingersoll-Rand Co., our sister court
held that Rule 26(a)(2) “trumps” any assertion of work product or privilege,
and thus “‘all materials given to an expert should be disclosed.’” Compare
Karn v. Ingersoll-Rand Co., 168 F.R.D. 633, 639 (N.D. Ind. 1996) (citing Michael
E. Plunkett, Discoverability of Attorney Work Product Reviewed by Expert
Witnesses: Have the 1993 Revisions to the Federal Rules of Civil Procedure Changed
Anything?, 69 Temple L.Rev. 451, 479 (1996)), with Estate of Chopper, 195
F.R.D. at 651–52 (decision of Northern District of Iowa, a district court in the
Eighth Circuit). Thus, to the limited extent Estate of Chopper may apply to this
case, there is contrary—and undisclosed—case law that exists in this Circuit
that the Court finds more persuasive.
Going even further, a district court in this Circuit has held that
“documents

concerning

‘advice

on

political,

strategic

or

policy

issues…would not be shielded from disclosure by the attorney-client
privilege.’” Evans v. City of Chicago, 231 F.R.D. 302, 312 (N.D. Ill. 2005) (citing
In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998), Republican Party of North
Carolina v. Martin, 136 F.R.D. 421, 426 (E.D.N.C. 1991)). So, even if Estate of
Chopper did apply, it does not appear to cover any documents passed
between Mr. Handrick and the Legislature’s outside counsel that concerned
advice on political, strategic, or policy issues. Considering Mr. Handrick’s
lack of any legal qualifications, the Court is unsure why he would be offered
any documents other than those containing such advice.

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All told, the Legislature has presented no compelling legal reason why
the discussions between Mr. Handrick and Michael Best’s attorneys should
be privileged. Likewise, in the Court’s own research, it has not identified any
reason to extend privilege to that information. Accordingly, the Court holds
that privilege does not protect the communications between Mr. Handrick
and outside counsel hired by the Legislature.
One additional factor also supports the Court’s ultimate conclusion
that no privilege applies to protect Mr. Handrick, his opinion and conclusion,
or his communications with the state’s outside counsel. “Certainly, if…[a
consulting expert] was an active participant in the events which form the
subject matter of this litigation, they are entitled to whatever discovery of
him they may deem appropriate.” Marylanders, 144 F.R.D. at 303. While the
Court remains uncertain of the full extent to which Mr. Handrick
participated in development of the redistricting legislation that underlies this
litigation, evidence seems to make clear that he participated as a lobbyist and
was thus an active participant in the redistricting. Mr. Handrick does not
have a law degree or any degree in political science or statistics; his only
qualifications appear to be his prior service as a member of the State
Assembly. As such, the Court finds it likely that Mr. Handrick was an active
lobbying participant in the redistricting, entitling the plaintiffs to whatever
discovery of him they may deem appropriate under the rules of evidence. Id.
Accordingly,

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IT IS ORDERED that the motion of the Wisconsin State Assembly
and the Wisconsin State Senate to clarify (Docket #77) be and the same is
GRANTED in part, to clarify the fact that Mr. Handrick is not an attorney
and is employed by Reinhart Boerner Van Deuren, S.C.;
IT IS FURTHER ORDERED that the motion of the Wisconsin State
Assembly and the Wisconsin State Senate to clarify (Docket #77) be and the
same is DENIED in part, to the extent that those parties seek application of
privilege to shield Mr. Handrick from discovery; as discussed above,
privilege does not apply to Mr. Handrick, his work product, or his
discussions with the outside counsel of the State Assembly and State Senate.
Dated at Milwaukee, Wisconsin, this 20th day of December, 2011.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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