Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: Work-product is a “qualified privilege” to refuse disclosure of materials generated by counsel in anticipation of litigation that only gives way upon showing of substantial need along with undue hardship in obtaining the substantial equivalent through other means. ¶61. The trial court erroneously exercised discretion in simply rebuffing the claim of privilege without finding the existence of substantial need preparation in anticipation of litigation. An in camera inspection is ordered on remand. ¶62.
Lane describes in some detail in the cited paragraphs the showing necessary to find a work product privilege. As the court notes, this privilege is codified in § 804.01(2)(c); and, because FRCivP 26(b)(3) is “the federal analogue to “this statute, “federal decisions construing the federal counterpart” are relevant.