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10-1963 American Bank v. City of Menasha

Civil Procedure
Discovery; open records

A Wisconsin municipality cannot get a stay of discovery, where the requested materials are subject to the open records law.

“The case law uniformly refuses to define requests for access to federal or state public records under public-records laws (such as the federal Freedom of Information Act and state public records laws-including Wisconsin’s) as discovery demands, even when as in this case the request is made for the purpose of obtaining information to aid in a litigation and is worded much like a discovery demand. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 and n. 23 (1978); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10 (1975); Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 167-68 (3d Cir. 1993); Maycock v. Nelson, 938 F.2d 1006, 1008 (9th Cir. 1991); RSR Corp. v. Brock, 764 F.2d 355, 367-68 (5th Cir. 1985); Cavey v. Walrath, supra, 598 N.W.2d at 243 n. 4; State ex rel. Lank v. Rzentkowski, supra, 416 N.W.2d at 637- 38; Kentner v. Indiana Public Employers’ Plan, Inc., 852 N.E.2d 565, 574-75 (Ind. App. 2006). The Delaware General Corporation Law, for example, entitles shareholders to inspect corporate books and records for ‘any proper purpose.’ Del. Code Ann. tit. 8, § 220(b), and the Delaware Supreme Court has ruled that requests made under this provision are not discovery demands. E.g., Saito v. McKesson HBOC, Inc., 806 A.2d 113, 114-15 (Del. 2002). That is all that American Bank did here when it requested access to public (not private, not confidential, not privileged, not hidden) records of its opponent.”


10-1963 American Bank v. City of Menasha

Appeal from the United States District Court for the Northern District of Indiana, Springmann, J., Posner, J.

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