State ex rel. Dudek v. Circuit Court

Supreme Court of Wisconsin · 1967 · Evidence

34 Wis. 2d 559 (1967)

Updated August 22, 2026

EvidenceDiscoveryAttorney-client privilegeWork productpretrial discoverygood causenecessityhardship

Facts

During pretrial discovery in litigation involving whether Dr. Hiller had become totally disabled and whether he had retired, opposing counsel subpoenaed Attorney Dudek and sought testimony and production of materials from his files. Dudek objected that some requests called for attorney-client communications and others for attorney work product. The circuit court ordered disclosure of various matters, including witness names, investigator names, and answers concerning Dudek's knowledge and the relevance of certain exhibits. Dudek sought a writ of prohibition limiting enforcement of that order.

Issue

To what extent, and under what conditions, may an attorney for a party be compelled in pretrial discovery to disclose communications, knowledge, files, reports, statements, and mental impressions developed in preparation for trial? Also, who bears the burden of showing entitlement to discovery when attorney work product is claimed?

Rule

Attorney-client privilege protects communications between attorney and client, not underlying facts or preexisting documents otherwise discoverable. A lawyer's work product includes information assembled and the mental impressions, legal theories, and strategies derived from interviews, statements, memoranda, correspondence, briefs, research, and other tangible or intangible means prepared after retainer in anticipation of litigation; such material is usually privileged from discovery unless the party seeking discovery shows good cause. Good cause must rest on necessity, prejudice, injustice, or hardship, and generally requires a showing that the information is unavailable from other sources and that denial of discovery would prejudice trial preparation; the stronger the work-product interest, the stronger the showing required. Once material is classified as qualifiedly privileged work product, the burden is on the party seeking discovery to establish sufficient good cause.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a contract suit in Milwaukee, Nora Vega's lawyer is deposed by opposing counsel. The lawyer is asked, "What did Nora tell you about when she signed the side letter?" and also is asked to identify the date on which Nora signed it, a fact Nora personally knows.

Which response best states what the court should require?

Explanation. The privilege protects communications between attorney and client, not the underlying facts relevant to the controversy. An attorney may not reveal facts known solely through client communication, but the client cannot immunize a fact merely by telling it to counsel. The privilege is absolute once it applies, so no hardship showing is needed to preserve the communication itself. (Derived from State ex rel. Dudek v. Circuit Court (1967).)