CIVIL PROCEDURE — DEPOSITIONS AND DISCOVERY
General provisions governing discovery.
Limits on discovery by prisoners.
Perpetuation of testimony by deposition.
Persons before whom depositions may be taken.
Stipulations regarding discovery procedure.
Depositions upon oral examination.
Depositions upon written questions.
Use of depositions in court proceedings.
Interrogatories to parties.
Production of documents and things and entry upon land for inspection and other purposes.
Physical and mental examination of parties; inspection of medical documents.
Requests for admission.
Failure to make discovery; sanctions.
Ch. 804 Note
Chapter 804 was created by Sup. Ct. Order, 67 Wis. 2d 585
, 654 (1975), which contains explanatory notes. Statutes prior to the 1983-84 edition also contain these notes.
General provisions governing discovery. 804.01(1)(1)
Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under sub. (3)
, and except as provided in s. 804.015
, the frequency of use of these methods is not limited.
(2) Scope of discovery.
Except as provided in s. 20.931 (9)
, and unless otherwise limited by order of the court in accordance with the provisions of this chapter, the scope of discovery is as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial.
Subject to par. (d)
a party may obtain discovery of documents and tangible things otherwise discoverable under par. (a)
and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. Section 804.12 (1) (c)
applies to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
Trial preparation: experts.
Discovery of facts known and opinions held by experts, otherwise discoverable under par. (a)
and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subd. 3.
concerning fees and expenses as the court considers appropriate.
A party may, through written interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon motion showing that exceptional circumstances exist under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for the time spent in responding to discovery under the last sentence of subds. 1.
; and with respect to discovery obtained under the last sentence of subd. 1.
, the court may require, and with respect to discovery obtained under subd. 2.
, the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including but not limited to one or more of the following:
That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
That discovery be conducted with no one present except persons designated by the court;
That a deposition after being sealed be opened only by order of the court;
That a trade secret, as defined in s. 134.90 (1) (c)
, or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Section 804.12 (1) (c)
applies to the award of expenses incurred in relation to the motion.
(4) Sequence and timing of discovery.
Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.
(4m) Discovery conference.
At any time after commencement of an action, on the court's own motion or the motion of a party, the court may order the parties to confer by any appropriate means, including in person, regarding any of the following, except for discovery of electronically stored information, where parties must confer unless excused by the court:
The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to particular issues.
Discovery of electronically stored information, including preservation of the information pending discovery and the form or forms in which the information will be produced.
The method for asserting or preserving claims of privilege or of protection of trial-preparation materials, and to what extent, if any, such claims may be asserted after production.
The cost of proposed discovery and the extent to which discovery should be limited, if at all, under sub. (3) (a)
In exceptional cases involving protracted actions, complex issues or multiple parties, the utility of the appointment by the court of a referee under s. 805.06
or an expert witness under s. 907.06
to supervise or inform the court on any aspect of discovery.
(5) Supplementation of responses.
A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:
A party is under a duty seasonably to supplement the party's response with respect to any question directly addressed to all of the following:
The identity and location of persons having knowledge of discoverable matters.
The identity of each person expected to be called as an expert witness at trial.
A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which 1. the party knows that the response was incorrect when made, or 2. the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
(6) Custody of discovery documents. 804.01(6)(a)(a)
Unless the court in any action orders otherwise, the original copies of all depositions, interrogatories, requests for admission and responses thereto, and other discovery documentation shall be retained by the party who initiated the discovery or that party's attorney.
The original copy of a deposition shall be retained by the attorney sealed as received from the person recording the testimony until the appeal period has expired, or until made a part of the record.
Effective date note
Sup. Ct. Order, 67 Wis. 2d 585
, 654 (1975); 1975 c. 218
; 1985 a. 236
; Sup. Ct. Order, 130 Wis. 2d xx; Sup. Ct. Order, 141 Wis. 2d xxi; 1993 a. 486
; Sup. Ct. Order No. 95-03
, 191 Wis. 2d xix (1995); 1997 a. 35
; 2007 a. 20
; Sup. Ct. Order No. 09-01
, 2010 WI 67, filed 7-6-10, eff. 1-1-11.
Effective date note
Judicial Council Note, 1986: Sub. (6) requires that the originals of discovery documents be retained by the party who initiated the discovery, or his or her attorney, unless the court otherwise directs, until the time for appeal has expired. [Re Order eff. 7-1-86.]
Judicial Council Note, 1988: Sub. (3) (c) [created] allows motions for protective orders to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Judicial Council Note, 1995: The revision to sub. (2) (d) 1. makes it unnecessary to obtain a court order to take an expert's deposition. By mutual agreement, practitioners commonly agree to take experts' depositions without troubling the court for an order. The court's power to control the discovery process is sufficient to prevent abuses. The revision is based on Rule 26 (b) (4) (A), F.R.C.P. Subsection (2) (d) 2. is amended to specify that discovery of non-testifying experts may be made by interrogatories or depositions. The revision is based on Rule 26 (b) (4) (B), F.R.C.P.
Judicial Council Note, 2010: Sub. (4m) was created as a measure to manage the costs of discovery. If the parties confer before embarking on discovery, they can reduce the ultimate cost of discovery. This provision was created as part of a package of revisions to address issues relating to discovery of electronically stored information, but the provision applies generally, except where specifically limited. The subsection is modeled on similar provisions in the Uniform Rules Relating to the Discovery of Electronically Stored Information, Federal Rules of Civil Procedure 26(f), and on civil procedure rules of other states. The proposal does not mandate a discovery conference in every case. In appropriate cases, it empowers a court to order parties to confer if they do not do so voluntarily. Parties who confer and feel the need for further court intervention may consider the provisions of ss. 802.10 (3), 804.01 (3), 805.06, and 907.06. [Re Order effective Jan. 1, 2011]
The trial court has no authority to order the production of documents relevant to a claim upon which it could grant no relief. State ex rel. Rilla v. Dodge County Circuit Court, 76 Wis. 2d 429
, 251 N.W.2d 476
Discovery, although it has a purpose of finding admissible evidence, does not imply that what is discovered will be admissible. Shibilski v. St. Joseph's Hospital, 83 Wis. 2d 459
, 266 N.W.2d 264
When the cost of discovery was several times greater than the claim for damages, a protective order against discovery was appropriate. Vincent & Vincent, Inc. v. Spacek, 102 Wis. 2d 266
, 306 N.W.2d 85
(Ct. App. 1981).
A highly placed state official who seeks a protective order should not be compelled to testify on deposition unless a clear showing is made that the deposition is necessary to prevent prejudice or injustice. State v. Beloit Concrete Stone Co. 103 Wis. 2d 506
, 309 N.W.2d 28
(Ct. App. 1981).
Public records germane to pending litigation were available under s. 19.35 even though the discovery cutoff deadline had passed. State ex rel. Lank v. Rzentkowski, 141 Wis. 2d 846
, 416 N.W.2d 635
(Ct. App. 1987).
A lawyer's decision to spend a client's resources on photographic or video surveillance is protected work product. Disclosure of the fact of the surveillance and description of the materials obtained would impinge on the core of the work-product doctrine. Ranft v. Lyons, 163 Wis. 2d 282
, 471 N.W.2d 254
(Ct. App. 1991).
A litigant's request to see his or her file that is in the possession of current or former counsel does not waive the attorney-client and work-product privileges and does not allow other parties to the litigation discovery of those files. Borgwardt v. Redlin, 196 Wis. 2d 342
, 538 N.W.2d 581
(Ct. App. 1995), 94-2701
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
Unfiled pretrial materials in a civil action between private parties are not public records and neither the public nor the press has either a common law or constitutional right of access to those materials. State ex rel. Mitsubishi v. Milwaukee County, 2000 WI 16, 233 Wis. 2d 1
, 605 N.W.2d 868
The test of whether the work-product doctrine under sub. (2) (c) applies is whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. Once a matter is classified as work product, the party moving for discovery must make an adequate showing that the information sought is unavailable from other sources and that a denial of discovery would prejudice the movant's preparation for trial. Lane v. Sharp Packaging Systems, 2002 WI 28, 251 Wis. 2d 68
, 640 N.W.2d 788
Discoverability of work-product materials reviewed by testifying experts. Matthews. Wis. Law. June 2002.
The new Wisconsin rules of civil procedure: Chapter 804. Graczyk, 59 MLR 463.
Witness statements: Current state of discovery in Wisconsin. Van Domelen and Benson. WBB May 1988.
What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig & Gleisner. Wis. Law. July 2010.
Limits on discovery by prisoners.