J.P. STADTMUELLER, District Judge.
Quite clearly, the Wisconsin State Senate and Wisconsin State Assembly (collectively, "the Legislature") and its attorneys are none too pleased with this three-judge Court's prior orders, filed on December 8, 2011, 2011 WL 6122542 and December 20, 2011, 2011 WL 6385645 respectively. By those orders, this Court twice held that neither Joe Handrick, a lobbyist hired by the Legislature to assist in preparing the redistricting plan now challenged in this case, nor documents in his possession are protected by legislative privilege, attorney-client privilege, or work product privilege. (Docket # 74, # 82). The Legislature's
But this new motion — in reality, the Legislature's second collateral attack on the wisdom of the Court's prior orders in as many weeks — is completely devoid of merit. In the Court's eyes, this motion is nothing more than a third bite at an apple that the Court has twice explained is a bitter one to chew. In reality, the Court can deny the Legislature's motion without reaching its merits; but, even quickly reaching the merits, it is clear that the Legislature's motion fails. And, thus — for the third time — this Court rules that neither Mr. Handrick nor the documents he holds are protected by privilege. But, this time, beyond once again directing that the Legislature comply with the Court's orders as related to discovery, the Court goes further, by sanctioning the Legislature's attorneys.
Beginning with procedure, perhaps the simplest issue of all, the Court finds that the Legislature is not entitled to a review of the Court's prior orders. Simply put, the Legislature's motion is a non-starter, as the Legislature is not entitled to "review by a three-judge panel" when the Court's prior decisions on the same issue were decided by the same three-judge panel. Under 28 U.S.C. § 2284(b)(3), "[a]ny action of a single judge may be reviewed by the full court at any time before the final judgment." 28 U.S.C. § 2284(b)(3) (emphasis supplied). In other words, it is only when a single judge enters an order that such order may become the subject of review by the three-judge panel.
Thus, here, where the three-judge panel twice considered the Legislature's arguments and entered orders denying their motions, any further three-judge review is inappropriate. To clarify, if perhaps the Legislature's lawyer's failed to read or understand the Court's prior orders entered under the heading "Before WOOD, Circuit Judge, DOW, District Judge, and STADTMUELLER, District Judge," the full Court considered the arguments of the parties, conferred and agreed upon an appropriate resolution, and entered both challenged orders accordingly. (Compare Docket # 74, # 82, with Docket # 35).
But it does not end there, for even upon close examination of the merits of the Legislature's arguments, it is also equally clear that the motion is frivolous and similarly must be denied. Indeed, the arguments advanced by the Legislature more than suggest that it wishes to have its cake and eat it too. Specifically, the Legislature argues that Mr. Handrick is — seemingly simultaneously and interchangeably, adapting to whatever the situation might call for so as to avoid the disclosure this three-judge panel has already twice commanded — at once a quasi-employee of the Legislature (Leg. Br. in Supp. Mot. for Reconsid. 19 & n. 7 (calling Mr. Handrick "effectively a short-term legislative staffer")) and not an employee of the Legislature (Id. at 3, 11 (calling Mr. Handrick a "consulting expert")). Moreover, the Legislature further argues that a case it first brought to the Court's attention is without precedential authority (Id. at 10 (citing Marylanders for Fair Representation v. Schaefer, 144 F.R.D. 292 (D.Md.1992))), despite having cited to the case for an intertwined contention in its prior motion (Docket #77, at 3 (citing same)). The Court could go on with the Legislature's internally-inconsistent flip-flopping and hair-splitting, including the acknowledgment of Mr. Handrick's serving as a lobbyist but arguing he did not act as one when hired by the Legislature (Leg. Br. in Supp. Mot. for Reconsid. 11, 19 & n. 7), to their insistence that certain parts of the legislative process are open to the public while others are not (Id. at 18-19 (drawing a distinction between the private drafting process and public deliberations that follow, despite the fact that — typically — records of the drafting process are open to the public in the form of legislative history)), or displeasure at the Court's "blanket, sight-unseen" pronouncement that privilege does not apply (Id. at 11) when they themselves request blanket application of privilege to documents they have elected not to produce (see, e.g., Docket # 63, # 64, # 76, # 77). Suffice it to say, the Court is quite aware of the distinctions that the Legislature points out. Despite those distinctions, the Court's previous rulings stand: the Legislature has taken action that affects the voting rights of Wisconsin's citizens and now attempts to cloak the record of that action behind a charade masking as privilege.
Moreover, the Legislature continues to obfuscate the true facts of Mr. Handrick's involvement by selectively adding to the facts and arguments earlier presented to the Court, while at the same time suggesting that the Court based its prior decisions on erroneous or incomplete law and facts (see generally Leg. Br. in Supp. Mot. for Reconsid.). Yet, again, the Legislature has declined to provide sufficient facts, much less legal precedent, for the Court to even understand Mr. Handrick's role in the redistricting process — let alone offer any good reason as to why he should be covered by any privilege. (See, e.g., Id. at 11-12 (taking issue with the Court's "conjecture" that documents supplied to Mr. Handrick likely did not contain legal advice, but failing to provide the Court with any citation to evidence that would establish Mr. Handrick's "specialized
Quite frankly, the Legislature and the actions of its counsel give every appearance of flailing wildly in a desperate attempt to hide from both the Court and the public the true nature of exactly what transpired in the redistricting process. Having argued three times that much of the information regarding the process be shielded from discovery, the Legislature has made clear its intention not to make such information publicly available. Regardless of whether the Legislature has objected on grounds of privilege eleven times or forty-five times (Compare Leg. Reply in Supp. Mot. for Reconsid. 4 with Pl.'s Resp. Opp. Mot. for Reconsid. 7), and regardless of whether the Legislature claims privilege over the communications of two people or the communications of ten people (Compare Leg. Reply in Supp. Mot. for Reconsid. 4 with Pl.'s Resp. Opp. Mot. for Reconsid. 11), the fact does not change that the Legislature has continued its path of opposition to the plaintiffs' discovery efforts by claiming privilege at multiple turns. Those argued privileges, though, exist in derogation of the truth. See, e.g., In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir.2000); see also Jaffee v. Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (citing United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950), United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), and Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), all for the principle that privileges are generally disfavored and justified only by grand public goods). And the truth here — regardless of whether the Court ultimately finds the redistricting plan unconstitutional — is extremely important to the public, whose political rights stand significantly affected by the efforts of the Legislature. On the other hand, no public good suffers by the denial of privilege in this case. Thus, as it has already done twice, the three-judge panel again declines to hold that Mr. Handrick or any of his documents are entitled to any of the privileges being asserted.
Accordingly, the Legislature's motion for reconsideration by the three-judge panel (Docket # 84) must also be denied on its merits.
Turning to an issue raised by the plaintiffs, this Court determines that — in
As such, the Court finds it appropriate to impose sanctions in this instance. However, mindful of the fact that the state's taxpayers would ultimately bear the cost of such sanctions, the Court will order that the Legislature's attorneys, Eric M. McLeod, Joseph L. Olson, Aaron H. Kastens, and Michael Best & Friedrich LLP — those ultimately responsible for the sand-bagging, hide-the-ball trial tactics that continue to be employed — jointly and severally, make payment to plaintiffs' counsel in the form of an award of attorneys fees and costs as a sanction by the Court. As such, the Legislature's attorneys shall be responsible for payment of the reasonable and necessary attorneys' fees and costs incurred by the plaintiffs in responding to both this motion (Docket # 84), as well as the Legislature's prior motion for clarification (Docket # 63). In assessing reasonable and necessary attorneys' fees and costs, the court invokes the authority to impose sanctions in the form of reasonable and necessary attorneys' fees and costs pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) for failure to comply with the Court's two prior orders (Docket # 74, # 82). To insure timely compliance with the Court's sanction order, plaintiffs' counsel shall prepare and file with the court, not later than seven (7) calendar days from today's date, an itemized statement of actual, reasonable and necessary attorneys' fees and costs associated with their responses to both this motion (Docket # 84) and the prior motion (Docket # 63). Absent any challenge as to necessity or reasonableness, the amount sought shall be paid in full by the Legislature's counsel, Eric M. McLeod, Joseph L. Olson, Aaron H. Kastens, and Michael, Best & Friedrich LLP, jointly and severally, within ten (10) days thereafter.
Finally, given the Legislature's refusal to adequately cooperate in the discovery process, despite the Court's having twice denied their requests for privilege, the Court reaffirms its earlier directive: cooperate immediately. Neither this Court, the parties in the case, nor Wisconsin's citizens have the interest or time to endure the litigation tactics being used by public officials or their private counsel in what has quickly become a poorly disguised attempt to cover up a process that should have been public from the outset, despite the Legislature's concerted efforts to mask the process behind the closed doors of a