804.01(5)(b)
(b) 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.
804.01(5)(c)
(c) 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.
804.01(6)
(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.
804.01(6)(b)
(b) 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.
804.01 History
History: Sup. Ct. Order, 67 W (2d) 585, 654 (1975);
1975 c. 218;
1985 a. 236; Sup. Ct. Order, 130 W (2d) xx; Sup. Ct. Order, 141 W (2d) xxi;
1993 a. 486; Sup. Ct. Order No.
95-03, 191 W (2d) xix (1995).
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.]
804.01 Note
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]
804.01 Annotation
Footnote cites (2) (c) 1 and (d) 2. State ex rel. Shelby Mut. Ins. Co. v. Circuit Court, 67 W (2d) 469, 227 NW (2d) 161.
804.01 Annotation
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 Cir. Ct. 76 W (2d) 429, 251 NW (2d) 476.
804.01 Annotation
Hospital fire drill rules and committee report on fire in plaintiff's decedent's hospital room held discoverable. Shibilski v. St. Joseph's Hospital, 83 W (2d) 459, 266 NW (2d) 264 (1978).
804.01 Annotation
Where cost of discovery was several times greater than claim for damages, trial court abused discretion in denying defendant's motion for protective order. Vincent & Vincent, Inc. v. Spacek, 102 W (2d) 266, 306 NW (2d) 85 (Ct. App. 1981).
804.01 Annotation
See note to 804.05, citing State v. Beloit Concrete Stone Co. 103 W (2d) 506, 309 NW (2d) 28 (Ct. App. 1981).
804.01 Annotation
See note to 804.12, citing Jenzake v. City of Brookfield, 108 W (2d) 537, 322 NW (2d) 516 (Ct. App. 1982).
804.01 Annotation
See note to 19.35, citing State ex rel. Lank v. Rzentkowski, 141 W (2d) 846 (Ct. App. 1987).
804.01 Annotation
Lawyer's decision to invest 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 W (2d) 282, 471 NW (2d) 254 (Ct. App. 1991).
804.01 Annotation
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 W (2d) 342, 538 NW (2d) 581 (Ct. App. 1995).
804.01 Annotation
The new Wisconsin rules of civil procedure: Chapter 804. Graczyk, 59 MLR 463.
804.01 Annotation
Witness statements: Current state of discovery in Wisconsin. Van Domelen and Benson. WBB May 1988.
804.02
804.02
Perpetuation of testimony by deposition. 804.02(1)(a)(a)
Petition. 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:
804.02(1)(a)1.1. 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.
804.02(1)(b)
(b)
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 incompetent,
s. 803.01 (3) applies.
804.02(1)(c)
(c)
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 and
804.10. 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.
804.02(1)(d)
(d)
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.
804.02(2)(a)(a) 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.
804.02(2)(b)
(b) 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:
804.02(2)(b)1.
1. 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.
804.02(2)(b)2.
2. The reasons for perpetuating the testimony of the persons under
subd. 1.
804.02(2)(c)
(c) 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
804.10 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.
804.02 History
History: Sup. Ct. Order, 67 W (2d) 585, 660 (1975);
1975 c. 218;
1993 a. 486.
804.03
804.03
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.
804.03(2)
(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.
804.03(3)
(3) Disqualification for interest. No deposition shall be taken before a person who is a relative or employe or attorney or counsel of any of the parties, or is a relative or employe of such attorney or counsel, or is financially interested in the action.
804.03 History
History: Sup. Ct. Order, 67 W (2d) 585, 663 (1975);
1975 c. 218.
804.04
804.04
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.
804.04 History
History: Sup. Ct. Order, 67 W (2d) 585, 664 (1975).
804.05
804.05
Depositions upon oral examination. 804.05(1)
(1)
When depositions may be taken. After commencement of the action, 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.
804.05(2)
(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.
804.05(2)(b)
(b) The court may for cause shown enlarge or shorten the time for taking the deposition.
804.05(2)(c)
(c) The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means or videotape means as provided in
ss. 885.40 to
885.47, in which event the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at the party's own expense.
804.05(2)(d)
(d) The notice to a party deponent may be accompanied by a request made in compliance with
s. 804.09 for the production of documents and tangible things at the taking of the deposition. The procedure of
s. 804.09 shall apply to the request.
804.05(2)(e)
(e) A party may in the notice name as the deponent 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 and designate with reasonable particularity the matters on which examination is requested. The organization or state officer so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph does not preclude taking a deposition by any other procedure authorized by statute or rule.
804.05(3)
(3) Depositions; place of examination. 804.05(3)(a)(a) A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by
s. 804.01 (2), but in that event the subpoena will be subject to
sub. (2) and
s. 804.01 (3).
804.05(3)(b)1.1. Any party may be compelled by notice under
sub. (2) to give a deposition at any place within 100 miles from the place where that party resides, is employed or transacts business in person, or at such other convenient place as is fixed by an order of court. A plaintiff may also be compelled by like notice to give a deposition at any place within the county where the action is commenced or is pending.
804.05(3)(b)2.
2. A plaintiff who is not a resident of this state may be compelled by notice under
sub. (2) to attend a deposition at the plaintiff's expense at any place within the county where the action is commenced or is pending, or at any place within 100 miles from the place where that plaintiff resides, is employed or transacts business in person, or at such other convenient place as is fixed by an order of court.
804.05(3)(b)3.
3. A defendant who is not a resident of this state may be compelled by subpoena served within this state to give a deposition at any place within 100 miles from the place where that defendant is served.
804.05(3)(b)4.
4. A nonparty deponent may be compelled by subpoena served within this state to give a deposition at any place within 100 miles from the place where the nonparty deponent resides, is employed, transacts business in person or is served, or at such other convenient place as is fixed by an order of court.
804.05(3)(b)5.
5. In this subsection, the terms "defendant" and "plaintiff" include officers, directors and managing agents of corporate defendants and corporate plaintiffs, or other persons designated under
sub. (2) (e), as appropriate. A defendant who asserts a counterclaim or a cross-claim shall not be considered a plaintiff within the meaning of this subsection, but a 3rd party plaintiff under
s. 803.05 (1) shall be so considered with respect to the 3rd party defendant.
804.05(3)(b)6.
6. If a deponent is an officer, director or managing agent of a corporate party, or other person designated under
sub. (2) (e), the place of examination shall be determined as if the deponent's place of residence, employment or transacting business in person were that of the party.
804.05(4)
(4) Examination and cross-examination; record of examination; oath; objections. 804.05(4)(a)(a) Examination and cross-examination of deponents may proceed as permitted at the trial. The officer before whom the deposition is to be taken shall put the deponent on oath and shall personally, or by someone acting under the officer's direction, record the testimony of the deponent. The testimony shall be taken stenographically or by videotape as provided by
ss. 885.40 to
885.47 or recorded by any other means ordered in accordance with
sub. (2) (c). If the testimony is taken stenographically, it shall be transcribed at the request of one of the parties.
804.05(4)(b)
(b) All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Upon request of any party, where the witness has refused to answer, and with the consent of the court, the court may rule by telephone on any objection. The court's ruling shall be recorded in the same manner as the testimony of the deponent. In the absence of a ruling by the court, the evidence objected to shall be taken subject to the objections.
804.05(4)(c)
(c) In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party shall transmit the questions to the officer, who shall propound them to the witness and record the answers verbatim.
804.05(5)
(5) Motion to terminate or limit examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in
s. 804.01 (3). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending.
Section 804.12 (1) (c) applies to the award of expenses incurred in relation to the motion.
804.05(6)
(6) Submission to deponent; changes; signing. If requested by the deponent or any party, when the testimony is fully transcribed the deposition shall be submitted to the deponent for examination and shall be read to or by the deponent. Any changes in form or substance which the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them. The deposition shall then be signed by the deponent, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the deponent within 30 days after its submission to the deponent, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the deponent or the fact of the refusal or failure to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under
s. 804.07 (3) (d) the court holds that the reasons given for the refusal or failure to sign require rejection of the deposition in whole or in part.
804.05(7)
(7) Certification and service by officer; exhibits; copies; notice of service. 804.05(7)(a)(a) The person recording the testimony shall certify on the deposition that the witness was duly sworn by the person and that the deposition is a true record of the testimony given by the deponent. The person shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of the deponent)" and shall promptly serve it upon the attorney requesting the deposition or send it by registered or certified mail to the attorney requesting the deposition and give notice of the service to all parties and the court.
804.05(7)(b)
(b) 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 1) the person producing the materials may substitute copies to be marked for identification, if the person afford to all parties fair opportunity to verify the copies by comparison with the originals, and 2) 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, and the materials may then be used in the same manner as if annexed to and returned with the deposition to the court, pending final disposition of the case.
804.05(7)(c)
(c) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.
804.05(8)
(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.
804.05 History
History: Sup. Ct. Order, 67 W (2d) 585, 665 (1975); Sup. Ct. Order, 67 W (2d) vii (1975);
1975 c. 218;
1979 c. 110;
1983 a. 189; Sup. Ct. Order, 130 W (2d) xi, xix (1986); Sup. Ct. Order, 141 W (2d) xiii (1987); Sup. Ct. Order, 158 W (2d) xvii (1990);
1991 a. 189;
1993 a. 112.
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]
804.05 Annotation
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]
804.05 Note
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.
804.05 Annotation
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]
804.05 Annotation
Highly placed state official who seeks protective order should not be compelled to testify on deposition unless clear showing is made that deposition is necessary to prevent prejudice or injustice. State v. Beloit Concrete Stone Co. 103 W (2d) 506, 309 NW (2d) 28 (Ct. App. 1981).
804.05 Annotation
See note to 73.03, citing State v. Kielisch, 123 W (2d) 125, 365 NW (2d) 904 (Ct. App. 1985).
804.06
804.06
Depositions upon written questions. 804.06(1)(a)(a) After commencement of the action, 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.
804.06(1)(b)
(b) 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).
804.06(1)(c)
(c) 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.
804.06(2)
(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.
804.06(3)
(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.
804.06 History
History: Sup. Ct. Order, 67 W (2d) 585, 671 (1975);
1975 c. 218; Sup. Ct. Order, 158 W (2d) xxv (1990);
1993 a. 112,
486.
804.06 Note
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.
804.06 Annotation
Revised sub. (3) conforms practice under this section to s. 804.05 (7). [Re Order eff. 1-1-91]
804.07
804.07
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:
