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. 804.015(2)
Unless ordered by the court, a prisoner in an action or special proceeding may not obtain discovery before the court receives a copy of the answer or other responsive pleading in the action commenced by the prisoner. If a defendant submits a motion to dismiss or a motion for summary judgment, no discovery may be obtained until the court decides that the prisoner has a reasonable opportunity to prevail on the merits, or until the court decides the merits of the motion, unless the court orders a party to submit to discovery.
If a court allows a prisoner to obtain discovery under sub. (2)
before the court decides that the prisoner has a reasonable opportunity to prevail on the merits, receives a copy of the answer or other responsive pleading in the action, or decides the merits of a motion to dismiss or a motion for summary judgment, the court order shall be narrowly tailored to limit the discovery to allow only discovery that is essential to enable the prisoner to obtain the evidence necessary to his or her case. The court shall limit the discovery so as to provide a minimal intrusion in the activities of any person subject to discovery under this subsection.
If a prisoner commences an action or special proceeding, the court shall limit the number of requests for interrogatories, production of documents or admissions to 15, unless good cause is shown for any additional requests. This number may not be expanded by the use of subparts to the interrogatories.
This section does not apply when the prisoner appears by an attorney who is licensed to practice law in this state.
History: 1997 a. 133
Perpetuation of testimony by deposition. 804.02(1)(a)(a)
A person who desires to perpetuate personal testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in any such court in this state. The petition shall be entitled in the name of the petitioner and shall show:
that the petitioner expects to be a party to an action; 2. the subject matter of the expected action and the petitioner's interest therein; 3. the facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it; 4. the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known; and 5. the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
Notice and service.
The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will move the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the state in the manner provided in s. 801.11
for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in s. 801.11
, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or is an individual adjudicated or alleged to be incompetent, s. 803.01 (3)
Order and examination.
If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with this chapter; and the court may make orders of the character provided for by ss. 804.09
. For the purpose of applying this chapter to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
Use of deposition.
If a deposition to perpetuate testimony is taken under this section, or if, although not so taken, it would be otherwise admissible in the courts of this state, it may be used in any action involving the same subject matter subsequently brought in this state in accordance with s. 804.07
If an appeal has been taken from a judgment of a court of this state or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court.
In such case, the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the court. The motion shall show all of the following:
The names and addresses of persons to be examined and the substance of the testimony which the moving party expects to elicit from each of those persons.
The reasons for perpetuating the testimony of the persons under subd. 1.
If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by ss. 804.09
and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this chapter for depositions taken in actions pending in the court.
Sup. Ct. Order, 67 Wis. 2d 585
, 660 (1975); 1975 c. 218
; 1993 a. 486
; 2005 a. 387
Persons before whom depositions may be taken. 804.03(1)(1)
Within the United States.
Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of this state or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.
(2) In foreign countries.
In a foreign country, depositions may be taken (a) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (b) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (c) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on motion and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in (here name the country)". Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under this chapter.
(3) Disqualification for interest.
No deposition may be taken before a person who is a party to the action or a relative or employee or attorney, or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action. No deposition may be taken before a person who has entered into a contract for court reporting services unless the contract is limited to a particular action or incident. This subsection does not apply to a person who records or transcribes depositions for a public agency, as defined in s. 66.0825 (3) (h)
Sup. Ct. Order, 67 Wis. 2d 585
, 663 (1975); 1975 c. 218
; 2003 a. 227
Stipulations regarding discovery procedure.
Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by this chapter for other methods of discovery.
Sup. Ct. Order, 67 Wis. 2d 585
, 664 (1975).
Depositions upon oral examination. 804.05(1)
When depositions may be taken.
After commencement of the action, except as provided in s. 804.015
, any party may take the testimony of any person including a party by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in s. 805.07
. The attendance of a party deponent or of an officer, director or managing agent of a party may be compelled by notice to the named person or attorney meeting the requirements of sub. (2) (a)
. Such notice shall have the force of a subpoena addressed to the deponent. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes, except when the party seeking to take the deposition is the state agency or officer to whose custody the prisoner has been committed.
(2) Notice of examination: general requirements; special notice; non-stenographic recording; production of documents and things; deposition of organization. 804.05(2)(a)(a)
A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena requiring the production of materials is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.