804.12(1)(a)
(a)
Motion. If a deponent fails to answer a question propounded or submitted under
s. 804.05 or
804.06, or a corporation or other entity fails to make a designation under
s. 804.05 (2) (e) or
804.06 (1), or a party fails to answer an interrogatory submitted under
s. 804.08, or if a party, in response to a request for inspection submitted under
s. 804.09, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he or she applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to
s. 804.01 (3).
804.12(1)(b)
(b)
Evasive or incomplete answer. For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer.
804.12(1)(c)1.1. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
804.12(1)(c)2.
2. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
804.12(1)(c)3.
3. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
804.12(2)(a)(a) If a party or an officer, director, or managing agent of a party or a person designated under
s. 804.05 (2) (e) or
804.06 (1) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under
sub. (1) or
s. 804.10, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
804.12(2)(a)1.
1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
804.12(2)(a)2.
2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;
804.12(2)(a)3.
3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
804.12(2)(a)4.
4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical, mental or vocational examination.
804.12(2)(b)
(b) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
804.12(3)
(3) Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under
s. 804.11, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in the making of that proof, including reasonable attorney fees. The court shall make the order unless it finds that (a) the request was held objectionable pursuant to
sub. (1), or
(b) the admission sought was of no substantial importance, or (c) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (d) there was other good reason for the failure to admit.
804.12(4)
(4) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection or supplement responses. If a party or an officer, director, or managing agent of a party or a person designated under
s. 804.05 (2) (e) or
804.06 (1) to testify on behalf of a party fails (a) to appear before the officer who is to take the party's deposition, after being served with a proper notice, or (b) to serve answers or objections to interrogatories submitted under
s. 804.08, after proper service of the interrogatories, or (c) to serve a written response to a request for inspection submitted under
s. 804.09, after proper service of the request, or (d) seasonably to supplement or amend a response when obligated to do so under
s. 804.01 (5), the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others, it may take any action authorized under
sub. (2) (a) 1.,
2. and
3. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by
s. 804.01 (3).
804.12(5)
(5) Telephone hearings. Motions under this section may be heard as prescribed in
s. 807.13.
804.12 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 684 (1975);
1975 c. 94 s.
3;
1975 c. 200,
218; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1993 a. 424,
490.
804.12 Cross-reference
Cross-reference: See also s.
885.11 (5) regarding failure to appear at deposition.
804.12 Note
Judicial Council Note, 1988: Sub. (5) [created] allows discovery motions to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
804.12 Annotation
If imposed solely for failure to obey a court order, without evidence of bad faith or no merit, the sanctions of sub. (2) (a) deny due process. Dubman v. North Shore Bank,
75 Wis. 2d 597,
249 N.W.2d 797.
804.12 Annotation
A defendant's failure to produce subpoenaed documents did not relieve the plaintiff of the obligation to make a prima facie case. Paulsen Lumber, Inc. v. Anderson,
91 Wis. 2d 692,
283 N.W.2d 580 (1979).
804.12 Annotation
Although the plaintiff failed in the duty to disclose it's expert's identity, the defendant failed to show hardship that would justify excluding the expert's testimony. Jenzake v. City of Brookfield,
108 Wis. 2d 537,
322 N.W.2d 516 (Ct. App. 1982).
804.12 Annotation
The court exercised proper discretion in dismissing a claim where the claimants failed to provide responsive answers to interrogatories, where they engaged in dilatory conduct and where there was no justification for the claimant's failure to appear and produce documents at depositions. Englewood Apartments Partnership v. Grant & Co.
119 Wis. 2d 34,
349 N.W.2d 716 (Ct. App. 1984).
804.12 Annotation
Although the trial court had no power under sub. (2) (a) 4. to compel an HIV test, it did have that power in equity. Syring v. Tucker,
174 Wis. 2d 787,
498 N.W.2d 370 (1993).
804.12 Annotation
The personnel commission may not award costs and attorneys fees for discovery motions filed against the state under the Fair Employment Act. Transportation Dept. v. Personnel Commission,
176 Wis. 2d 731,
500 N.W.2d 664 (1993).
804.12 Annotation
The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall,
194 Wis. 2d 532,
535 N.W.2d 65 (Ct. App. 1995).
804.12 Annotation
A circuit court may impose both non-compensatory and compensatory monetary sanctions for the same conduct. Hur v. Holler,
206 Wis. 2d 334,
557 N.W.2d 429 (Ct. App. 1996).
804.12 Annotation
A substantiated assertion of privilege is substantial justification for failing to comply with an order to provide or permit discovery. Burnett v. Alt,
224 Wis. 2d 72,
589 N.W.2d 21 (1999).
