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Attorney-client Communications – Work Product

In re Petition for Subpoena of Documents: Ramiro Estrada v. State, 228 Wis.2d 459, 596 N.W.2d 496 (Ct. App. 1999)
For Estrada: Keith A. Steckbauer

Holding: An alleged sexual assault perpetrator’s wife videotaped an interview with the complainant, after an attorney told them it would be helpful to know more about the allegations. The court of appeals upholds a discovery order to turn the video over to the prosecution, rejecting arguments of attorney-client privilege and work-product. Because the communication was made in the presence of a third person (the complainant), it wasn’t confidential, and therefore not privileged, § 905.03(2). (This, in contrast to an interviewer’s report to the attorney.) As to work-product: this common law privilege requires that the material “have been obtained at the attorney’s direction and in anticipation of litigation.” That showing isn’t met; the attorney didn’t direct the spouse to interview the complainant or ask her certain questions. (The court specifically declines to discuss the statutory protection for work-product, § 804.01(2), because it isn’t adequately briefed.)

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