CHAPTER 804
CIVIL PROCEDURE — DEPOSITIONS AND DISCOVERY
804.01 General provisions governing discovery.
804.015 Limits on discovery by prisoners.
804.02 Perpetuation of testimony by deposition.
804.03 Persons before whom depositions may be taken.
804.04 Stipulations regarding discovery procedure.
804.05 Depositions upon oral examination.
804.06 Depositions upon written questions.
804.07 Use of depositions in court proceedings.
804.08 Interrogatories to parties.
804.09 Production of documents and things and entry upon land for inspection and other purposes.
804.10 Physical and mental examination of parties; inspection of medical documents.
804.11 Requests for admission.
804.12 Failure to make discovery; sanctions.
Ch. 804 Note
NOTE: Chapter 804 was created by Sup. Ct. Order, 67 W (2d) 585, 654 (1975), which contains Judicial Council Committee notes explaining each section. Statutes prior to the 1983-84 edition also contain these notes.
804.01
804.01
General provisions governing discovery. 804.01(1)(1)
Discovery methods. 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.
804.01(2)
(2) Scope of discovery. Unless otherwise limited by order of the court in accordance with the provisions of this chapter, the scope of discovery is as follows:
804.01(2)(a)
(a)
In general. 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.
804.01(2)(b)
(b)
Insurance agreements. 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.
804.01(2)(c)1.1. 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.
804.01(2)(c)2.
2. 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.
804.01(2)(d)
(d)
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:
804.01(2)(d)1.
1. 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.
804.01(2)(d)2.
2. 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.
804.01(2)(d)3.
3. 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
2.; 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.
804.01(3)(a)(a) 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:
804.01(3)(a)2.
2. That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
804.01(3)(a)3.
3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
804.01(3)(a)4.
4. That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
804.01(3)(a)5.
5. That discovery be conducted with no one present except persons designated by the court;
804.01(3)(a)6.
6. That a deposition after being sealed be opened only by order of the court;
804.01(3)(a)7.
7. 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;
804.01(3)(a)8.
8. That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
804.01(3)(b)
(b) 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.
804.01(4)
(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.
804.01(5)
(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:
804.01(5)(a)
(a) 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:
804.01(5)(a)1.
1. The identity and location of persons having knowledge of discoverable matters.
804.01(5)(a)2.
2. The identity of each person expected to be called as an expert witness at trial.
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);
1997 a. 35,
133.
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 Note
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.
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
Discoverability of lawyer work product discussed. State v. Hydrite Chemical Co. 220 W (2d) 51, 582 NW (2d) 411 (Ct. App. 1998).
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.
804.015
804.015
Limits on discovery by prisoners. 804.015(2)
(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.
804.015(3)
(3) 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.
804.015(4)
(4) 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.
804.015(5)
(5) This section does not apply when the prisoner appears by an attorney who is licensed to practice law in this state.
804.015 History
History: 1997 a. 133.
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.
