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Letter not covered by attorney-client privilege

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A Southern District magistrate judge has decided a letter between the city of Madison's mayor and city attorney isn't protected by attorney-client privilege in a civil action seeking damages over strip searches of three women.

Magistrate Judge William Hussmann Jr. ruled today that a cover letter from city attorney Robert Barlow II to Madison Mayor Albert G. Huntington isn't protected because it doesn't contain information covered under attorney-client privilege. The ruling came from an order granting plaintiffs' third motion to compel discovery. The plaintiffs, Kristy L. Lessley, Kara J. Rhodehamel, and Kayla M. Messer, filed suit against the city of Madison, Board of Public Works and Safety, the police department, and fire department in Lessley, et al. v. City of Madison, et al., No. 4:07-CV-136, claiming they were improperly strip searched following a traffic stop in January 2007.

The plaintiffs' motion sought a July 2007 cover letter written by Barlow, who also is a member of the city's Board of Public Works and Safety, which operates and manages the police and fire departments.

The issue facing the magistrate was whether Barlow could protect his communications to the mayor concerning the Board of Public Works' business by virtue of the attorney-client privilege. Although the scenario presents a difficult and interesting case for analysis, Magistrate Hussmann declined to make the analysis because this particular letter doesn't have information in it protected by the privilege.

The cover letter doesn't discuss any facts underlying the claims of the instant case, doesn't have any type of legal analysis of cases or statutes, and doesn't give advice to the mayor. The only opinion found in the letter deals with Barlow's opinion about the "tenor" of the letter and his impressions about the plaintiffs' attorney's motive in filing the claims.

As a result, the magistrate ordered the letter be produced within 15 days.

In November 2008, Magistrate Hussmann ordered sanctions against Madison, its Board of Public Works, and police and fire departments following their lack of response to court orders and obstructing discovery in the civil action. The defendants were required to respond to all outstanding discovery requests by Dec. 5, 2008, and pay a $1,000 fine, as well as attorney's fees to plaintiffs' counsel for filing the motions to compel.

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