Documents and things produced for inspection during the examination of the deponent shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that:
The person producing the materials may substitute copies to be marked for identification, if the person affords to all parties fair opportunity to verify the copies by comparison with the originals; and
If the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them.
The original materials copied or returned under subd. 1.
may be used in the same manner as if annexed to and returned with the deposition to the court, pending final disposition of the case.
Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.
(8) Participation by telephone.
Upon notice by any party unless the court otherwise orders for good cause shown, the deponent, the reporter, or any other person participating in a deposition under this section may do so by telephone. Any participant other than the reporter electing to be present with any other participant shall give reasonable notice thereof to the other participants.
Sup. Ct. Order, 67 Wis. 2d 585, 665 (1975); Sup. Ct. Order, 67 Wis. 2d vii (1975); 1975 c. 218
; 1979 c. 110
; 1983 a. 189
; Sup. Ct. Order, 130 Wis. 2d xi, xix (1986); Sup. Ct. Order, 141 Wis. 2d xiii (1987); Sup. Ct. Order, 158 Wis. 2d xvii (1990); 1991 a. 189
; 1993 a. 112
; 1997 a. 35
; 2005 a. 253
; 2007 a. 97
; 2009 a. 180
Effective date note
Judicial Council Committee's Note, 1975: Subs. (2) (c) and (4) (a) are amended to recognize the Wisconsin Rules of Videotape Procedure and to make certain that a motion to the court is not required prior to taking a videotape deposition. [Re Order eff. Jan. 1, 1976]
Effective date note
Judicial Council Notes, 1986: Sub. (3) (b) is amended to conform the territorial scope of deposition notices and subpoenas to the 100-mile provision of Rule 45 (d), F.R.C.P. as amended in 1985. [Re Order eff. 7-1-86]
Sub. (7) (a) is amended to require that the deposition be served upon the attorney rather than filed in court. See s. 804.01 (6). [Re Order eff. 7-1-86]
Judicial Council Note, 1988: Sub. (4) (b) is amended to allow contact with the court by telephone to obtain its ruling on any objection, on request of any party and with the consent of the court.
Effective date note
Sub. (8) [created] allows any person to participate in a deposition by telephone upon notice by any party unless good cause to the contrary is shown. [Re Order eff. Jan. 1, 1988]
Effective date note
Judicial Council Note, 1990: Sub. (8) is amended to clarify that reasonable advance notice to all participants is required if any participant to a deposition to be taken by telephone elects to be present with any other participant. The requirement is aimed primarily at the situation in which one party is in the physical presence of the deponent, while others are not, by allowing others to be present if they choose. [Re Order, eff. 1-1-91]
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).
While not subject to the rules of civil procedure, the department of revenue's subpoena authority does not permit it to take possession of subpoenaed records for more than one business day. The department may however repeatedly subpoena records until its investigation is completed. State v. Kielisch, 123 Wis. 2d 125
, 365 N.W.2d 904
(Ct. App. 1985).
Depositions upon written questions. 804.06(1)(a)(a)
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 written questions. 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 person to be deposed or his or her attorney meeting the requirements of s. 804.05 (2) (a)
. 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 person seeking to take the deposition is the state agency or officer to whose custody the prisoner has been committed.
A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating the name and address of the person who is to answer them, 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, and the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a limited liability company or a partnership or association or governmental agency in accordance with s. 804.05 (2) (e)
Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.
(2) Officer to take responses and prepare record.
A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by s. 804.05
, either personally or by someone acting under the officer's direction, to take the testimony of the witness in response to the questions and to prepare, certify, and serve the deposition upon, or mail it by registered or certified mail to, the party who requested it, attaching thereto the copy of the notice and the questions received by the officer.
(3) Notice of service.
When the deposition is served upon or mailed to the requesting party, the person who has recorded the testimony shall promptly give notice thereof to all parties and the court.
Sup. Ct. Order, 67 Wis. 2d 585, 671 (1975); 1975 c. 218
; Sup. Ct. Order, 158 Wis. 2d xxv (1990); 1993 a. 112
; 1997 a. 133
Judicial Council Note, 1990: [Re amendment of (2)] Discovery depositions are no longer required to be filed in court, unless the court so orders. See Supreme Court Order of May 1, 1986.
Effective date note
Revised sub. (3) conforms practice under this section to s. 804.05 (7). [Re Order eff. 1-1-91]
Use of depositions in court proceedings. 804.07(1)(1)
Use of depositions.
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or employee or a person designated under s. 804.05 (2) (e)
or 804.06 (1)
to testify on behalf of a public or private corporation, limited liability company, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.
The deposition of a witness other than a medical expert, whether or not a party, may be used by any party for any purpose if the court finds any of the following:
That the witness is at a greater distance than 30 miles from the place of trial or hearing, or is out of the state, and will not return before the termination of the trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition.
That the witness is unable to attend or testify because of age, illness, infirmity or imprisonment.
That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.
Upon application and notice, that exceptional circumstances exist that make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
The deposition of a medical expert may be used by any party for any purpose, without regard to the limitations otherwise imposed by this paragraph.
If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
Substitution of parties pursuant to s. 803.10
does not affect the right to use depositions previously taken; and when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor.
(2) Objections to admissibility.
Subject to sub. (3) (c)
and to s. 804.03 (2)
, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(3) Effect of errors and irregularities in depositions. 804.07(3)(a)(a) As to notice.
All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
As to disqualification of officer.
Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
Objections to the form of written questions submitted under s. 804.06
are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized.
As to completion and return of deposition.
Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under ss. 804.05
are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
Sup. Ct. Order, 67 Wis. 2d 585, 673 (1975); 1975 c. 218
; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1983 a. 192
; Sup. Ct. Order, 130 Wis. 2d xxix (1986); 1993 a. 112
; 1995 a. 225
Judicial Council Committee's Note, 1976: Section 804.07 (2) is taken from F.R.C.P. 32 (b). The reference in sub. (2) to "sub. (3) (d)" is changed to read "sub. (3) (c)" to correspond with subdivision (d) (3) in F.R.C.P. 32 (b). [Re Order effective Jan. 1, 1977]
Effective date note
Judicial Council Note, 1986: Sub. (1) (e) is amended to reflect the fact that depositions need not be filed except upon order of the court. See s. 804.05 (7) (a). [Re Order eff. 7-1-86]
Under subs. (2) and (3) (c) 1., a hearsay objection was not waived by the failure to object at deposition. Strelecki v. Firemans Ins. Co. of Newark, 88 Wis. 2d 464
, 276 N.W.2d 794
The defendant's evidentiary deposition of its doctor expert taken subsequent to the plaintiff's discovery deposition of the doctor did not prevent the plaintiff's use of the discovery deposition at trial. Martin v. Richards, 176 Wis. 2d 339
, 500 N.W.2d 691
(Ct. App. 1993).
Interrogatories to parties. 804.08(1)
Availability; procedures for use. 804.08(1)(a)(a)
Except as provided in s. 804.015
, any party may serve upon any other party written interrogatories to be answered by the party served, or, if the party served is a public or private corporation or a limited liability company or a partnership or an association or a governmental agency or a state officer in an action arising out of the officer's performance of employment, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under s. 804.12 (1)
with respect to any objection to or other failure to answer an interrogatory.
Interrogatories may relate to any matters which can be inquired into under s. 804.01 (2)
, and the answers may be used to the extent permitted by chs. 901
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.
(3) Option to produce business records.
If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records, including electronically stored information, and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (b) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
Sup. Ct. Order, 67 Wis. 2d 585, 676 (1975); 1975 c. 218
; 1993 a. 112
; 1997 a. 133
; Sup. Ct. Order No. 09-01
, 2010 WI 67, filed 7-6-10, eff. 1-1-11.
Judicial Council Note, 2010: The meaning of the term "electronically stored information" is described in the Judicial Council Note following Wis. Stat. § 804.09.
Section 804.08 (3) is taken from F.R.C.P. 33(d). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 804.08 (3): Special difficulties may arise in using electronically stored information, either due to its form or because it is dependent on a particular computer system. Rule 33(d) allows a responding party to substitute access to documents or electronically stored information for an answer only if the burden of deriving the answer will be substantially the same for either party. Rule 33(d) states that a party electing to respond to an interrogatory by providing electronically stored information must ensure that the interrogating party can locate and identify it "as readily as can the party served," and that the responding party must give the interrogating party a "reasonable opportunity to examine, audit, or inspect" the information. Depending on the circumstances, satisfying these provisions with regard to electronically stored information may require the responding party to provide some combination of technical support, information on application software, or other assistance. The key question is whether such support enables the interrogating party to derive or ascertain the answer from the electronically stored information as readily as the responding party. A party that wishes to invoke Rule 33(d) by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory. In that situation, the responding party's need to protect sensitive interests of confidentiality or privacy may mean that it must derive or ascertain and provide the answer itself rather than invoke Rule 33(d). [Re Order effective Jan. 1, 2011]
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).
The effective use of written interrogatories. Schoone and Miner, 60 MLR 29.
What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig & Gleisner. Wis. Law. July 2010.
Production of documents and things and entry upon land for inspection and other purposes. 804.09(1)
A party may serve on any other party a request within the scope of s. 804.01 (2)
: a) to produce and permit the requesting party or its representative to inspect, copy, test or sample the following items in the responding party's possession, custody, or control: 1. any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any other medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or 2. any designated tangible things; or b) to permit entry onto designated land or property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Except as provided in s. 804.015
, the request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party, and shall describe with reasonable particularity each item or category of items to be inspected. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.
The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form, or if no form was specified in the request, the party shall state the form or forms it intends to use.
Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
A party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request;
If a request does not specify a form for producing electronically stored information, a party shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
A party need not produce the same electronically stored information in more than one form.
The party submitting the request may move for an order under s. 804.12 (1)
with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
(3) Persons not parties.
This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.
Sup. Ct. Order, 67 Wis. 2d 585, 678 (1975); 1975 c. 218
; 1997 a. 133
; Sup. Ct. Order No. 09-01
, 2010 WI 67, filed 7-6-10, eff. 1-1-11.
Judicial Council Note, 2010: Sections 804.09 (1) and (2) are modeled on F.R.C.P. 34(a) and (b). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 804.09 (1) and (2): Rule 34(a) is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents. The change clarifies that Rule 34 applies to information that is fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined. A Rule 34 request for production of "documents" should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and "documents."
Discoverable information often exists in both paper and electronic form, and the same or similar information might exist in both. The items listed in Rule 34(a) show different ways in which information may be recorded or stored. Images, for example, might be hard-copy documents or electronically stored information. The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as e-mail. The rule covers — either as documents or as electronically stored information — information "stored in any medium," to encompass future developments in computer technology. Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.
References elsewhere in the rules to "electronically stored information" should be understood to invoke this expansive approach.
Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. Rule 34(b) is amended to ensure similar protection for electronically stored information.
The amendment to Rule 34(b) permits the requesting party to designate the form or forms in which it wants electronically stored information produced. The form of production is more important to the exchange of electronically stored information than of hard-copy materials, although a party might specify hard copy as the requested form. Specification of the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery of electronically stored information. The rule recognizes that different forms of production may be appropriate for different types of electronically stored information. Using current technology, for example, a party might be called upon to produce word processing documents, e-mail messages, electronic spreadsheets, different image or sound files, and material from databases. Requiring that such diverse types of electronically stored information all be produced in the same form could prove impossible, and even if possible could increase the cost and burdens of producing and using the information. The rule therefore provides that the requesting party may ask for different forms of production for different types of electronically stored information.
The rule does not require that the requesting party choose a form or forms of production. The requesting party may not have a preference. In some cases, the requesting party may not know what form the producing party uses to maintain its electronically stored information.
The responding party also is involved in determining the form of production. In the written response to the production request that Rule 34 requires, the responding party must state the form it intends to use for producing electronically stored information if the requesting party does not specify a form or if the responding party objects to a form that the requesting party specifies. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs. A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form. Additional time might be required to permit a responding party to assess the appropriate form or forms of production.