CITY of Racine: MOTION TO UNDER SEAL AND DESIGNATE AS "ATTORNEYS EYES ONLY"

Case 2017CV001644

Document 249

Filed 07-06-2020

Page 1 of 4 FILED 07-06-2020 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ RESPONDENT CITY OF RACINE’S NOTICE OF MOTION AND MOTION TO FILE AUGUST 22, 2017 EXECUTIVE COMMITTEE POWERPOINT UNDER SEAL AND DESIGNATE AS ATTORNEYS’ EYES ONLY ______________________________________________________________________________ PLEASE TAKE NOTICE that the Respondent City of Racine (“City”), by and through its attorneys, Meissner Tierney Fisher & Nichols S.C., moves this Court, pursuant to Wis. Stat. §§ 801.21 and 804.01(3), for an order that the August 22, 2017 Executive Committee PowerPoint (the “PowerPoint”) designated as Attorney’s Eyes Only and contemporaneously filed under seal by the City for the Court’s in camera review shall remain filed under seal in its entirety and be treated by the parties as Attorneys’ Eyes Only material until otherwise ordered by the Court.

The Court may decide this motion without a hearing pursuant to Wis. Stat.

§ 801.21(3). This motion is based on the following: 1.

Pursuant to Wis. Stat. § 801.21(2), the Court may seal an entire document to

ensure that confidential and privileged information is not disclosed to the public.

2.

Pursuant to Wis. Stat. § 804.01(3), the Court may make any order to protect a

party from disclosing confidential information to the public.

3.

The parties’ dispute is now limited to the City’s obligation to disclose the

PowerPoint to Weidner and the public. (See Am. Petition for Writ of Mandamus and Other 1971585.1

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Relief, ¶¶ 4, 16 & p. 5.) Weidner contends that the City must produce the PowerPoint to her.

(See id.) The City’s position is that the PowerPoint should not be disclosed to members of the public, including Weidner, because it is protected by the attorney-client privilege as it pertains to and contains communications between the City of Racine City Attorney’s Office and the City of Racine Common Council and was presented by the City of Racine City Attorney (the “City Attorney”) to the City of Racine Executive Committee (the “Executive Committee”) during a confidential-closed-session Executive Committee meeting.1 Accordingly, the City’s position is that the PowerPoint is part of the City Attorneys’ attorney-client communications with the City and the entire PowerPoint therefore falls under the attorney-client privilege and should therefore not be accessible to the public. Wisconsin Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199 Wis. 2d 768, 783, 546 N.W.2d 143, 149 (1996) (holding that documents protected by the attorney-client privilege are not accessible to the public through public records law).

4.

While Weidner disputes the City’s characterization of the PowerPoint, good cause

exists to seal the PowerPoint in its entirety until the Court can decide the parties’ dispute for two reasons. First, certain portions of the PowerPoint contain communications that remain sealed pursuant to the seal Order that was entered and modified by the previous judge and remains undisturbed by the Wisconsin Court of Appeals.

(See Doc. 208.)

Second, the materials

contained in the PowerPoint should otherwise remain sealed for this Court’s in camera review, otherwise the City will be forced to make information available to the public that the Court may later rule should not have been disclosed. See State ex. rel. Youmans v. Owens, 28 Wis. 2d 672, 682 137 N.W.2d 470 (1965) (explaining that in camera examinations are the preferred procedure for resolving open records disputes).

1

This is a generalized statement of the City’s position in this case at this time, which the City will further develop and expound upon through its forthcoming pleadings and summary judgment filings.

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5.

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Good cause also exists to treat the PowerPoint as Attorneys’ Eyes Only material

until this Court resolves the parties’ dispute. The number of persons who view the PowerPoint should be limited to those necessary to resolve the legal questions surrounding the parties’ dispute, namely counsel for the parties, the Court, and their respective support staffs. 2 See, Lakeland Times v. Lakeland Union High School, 2014 WL 458127, 2014 WI App 100, ¶ 54, 357 N.W.2d 722, 855 N.W.2d 904 (Sept. 16, 2014) (Cane, J.) (unpublished, but citable) (collecting authorities stating that when resolving open records disputes, courts may enter protective orders, seal orders, and/or review documents in camera). Without this protection, the PowerPoint is more likely to be disclosed to the public even if the Court later rules that it should not have been disclosed. Weidner has previously intentionally violated orders of the Court in this case to keep information she received in this case as confidential for use only in this case and cannot be trusted not to do so again. (See Dkt. # 105).

6.

For the above-stated reasons, good cause exists to seal the PowerPoint in its

entirety and require the parties to treat the PowerPoint as Attorneys’ Eyes Only materials.

Without these protections, the public may be able to access materials that are protected by the attorney-client privilege. Accordingly, the City respectfully requests that the Court order that (i) the PowerPoint contemporaneously filed under seal with this Motion remain under seal in its entirety until otherwise ordered by the Court and (ii) all counsel shall hold the PowerPoint in strict confidence and shall not disclose or permit the disclosure of the PowerPoint to any other person or entity other than (a) counsel for the parties in this case; (b) any employees of counsel for the parties in this case that have direct functional responsibility for any aspect of the litigation of this case; (c) court reporters engaged for depositions in this case; (d) deposition and trial witnesses during their testimony in this case, as long as such witnesses’ testimony requires 2

There is no need to limit the City Attorney’s ability to view the PowerPoint as he created the document.

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disclosure of the PowerPoint to that witness; (e) the Court and the Court’s staff; and (f) the City Attorney of the City of Racine.

Dated this 6th day of July 2020.

MEISSNER TIERNEY FISHER & NICHOLS S.C. By: Electronically signed by Michael J. Cohen Michael J. Cohen State Bar No. 1017787 Email: mjc@mtfn.com Garrett A. Soberalski State Bar No. 1088611 Email: gas@mtfn.com 111 East Kilbourn Avenue, 19th Floor Milwaukee, WI 53202 Tel: 414-273-1300 Fax: 414-273-5840 Attorneys for Respondent City of Racine

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