Sometimes, I Wonder….

In Howard v. Ashworth, 2024 WL 5264677 (E.D. Wis. Dec. 31, 2024), an inmate sued correctional officers from Waupun Correctional Institution for allegedly intercepting his correspondence based on a retaliatory motive.

The court held that a party need not show that litigation was anticipated when the party is actually in litigation.

The court allowed the inmate to proceed on certain claims.  He sought discovery of “twenty-one emails between Assistant Attorney General Melissa Schaller and Waupun staff related to the compiling of the supplemental return in the Dane County Circuit Court certiorari case the plaintiff filed for his Conduct Report 24617890.”  Defendants asserted privilege and work product protection.

In support of his motion to compel, the plaintiff states that he does not believe the attorney-client privilege or work product privilege applies to the emails…. He says that he believes that the content of the emails “was sending along documents that are prepared in the ordinary course of business, which would not be protected.”

Id. at *2.

According to the defendants, the twenty-one emails to or from AAG Schaller as she worked with the prison to compile a supplemental return to file in the plaintiff’s certiorari case “are the epitome of attorney-client privileged communication and attorney work product.” … They assert that the emails were between a Wisconsin Department of Justice attorney and her client (staff at the Wisconsin Department of Corrections) for the purpose of compiling evidence to be submitted during an active lawsuit.

The court unsurprisingly agreed:

The plaintiff’s contention that he believes the emails are not protected because they were prepared in the ordinary course of business is misplaced because, as the defendants point out, the emails were not sent in anticipation of litigation but during litigation…. The court will deny the plaintiff’s motion to compel. [emphasis added].

Having concluded that the emails were privileged, the court did not address work product.