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:
804.07(1)(a)
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
804.07(1)(b)
(b) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or employe 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.
804.07(1)(c)1.1. 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:
804.07(1)(c)1.b.
b. 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.
804.07(1)(c)1.c.
c. That the witness is unable to attend or testify because of age, illness, infirmity or imprisonment.
804.07(1)(c)1.d.
d. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.
804.07(1)(c)1.e.
e. 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.
804.07(1)(c)2.
2. 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.
804.07(1)(d)
(d) 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.
804.07(1)(e)
(e) 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.
804.07(2)
(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.
804.07(3)
(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.
804.07(3)(b)
(b)
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.
804.07(3)(c)1.1. 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.
804.07(3)(c)2.
2. 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.
804.07(3)(c)3.
3. 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.
804.07(3)(d)
(d)
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, indorsed, transmitted, filed, or otherwise dealt with by the officer under
ss. 804.05 and
804.06 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.
804.07 History
History: Sup. Ct. Order, 67 W (2d) 585, 673 (1975);
1975 c. 218; Sup. Ct. Order, 73 W (2d) xxxi (1976);
1983 a. 192; Sup. Ct. Order, 130 W (2d) xxix (1986);
1993 a. 112;
1995 a. 225.
804.07 Note
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]
804.07 Annotation
Under (2) and (3) (c) 1, hearsay objection was not waived by failure to object at deposition. Strelecki v. Firemans Ins. Co. of Newark, 88 W (2d) 464, 276 NW (2d) 794 (1979).
804.07 Annotation
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 W (2d) 339, 500 NW (2d) 691 (Ct. App. 1993).
804.08
804.08
Interrogatories to parties. 804.08(1)
(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.
804.08(1)(b)
(b) 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.
804.08(2)(a)(a) 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 to
911.
804.08(2)(b)
(b) 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.
804.08(3)
(3) Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.
804.08 History
History: Sup. Ct. Order, 67 W (2d) 585, 676 (1975);
1975 c. 218;
1993 a. 112;
1997 a. 133.
804.08 Annotation
See note to 804.01, citing Vincent & Vincent, Inc. v. Spacek, 102 W (2d) 266, 306 NW (2d) 85 (Ct. App. 1981).
804.08 Annotation
The effective use of written interrogatories. Schoone and Miner, 60 MLR 29.
804.09
804.09
Production of documents and things and entry upon land for inspection and other purposes. 804.09(1)
(1)
Scope. Any party may serve on any other party a request (a) to produce and permit the party making the request, or someone acting on the party's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of
s. 804.01 (2) and which are in the possession, custody or control of the party upon whom the request is served; or (b) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation therein, within the scope of
s. 804.01 (2).
804.09(2)
(2) Procedure. 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. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. 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 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.
804.09(3)
(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.
804.09 History
History: Sup. Ct. Order, 67 W (2d) 585, 678 (1975);
1975 c. 218;
1997 a. 133.
804.10
804.10
Physical and mental examination of parties; inspection of medical documents. 804.10(1)
(1) When the mental or physical condition, including the blood group or the ability to pursue a vocation, of a party is in issue, the court in which the action is pending may order the party to submit to a physical, mental or vocational examination. The order may be made on motion for cause shown and upon notice to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.
804.10(2)
(2) In any action brought to recover damages for personal injuries, the court shall also order the claimant, upon such terms as are just, to give to the other party or any physician named in the order, within a specified time, consent and the right to inspect any X-ray photograph taken in the course of the diagnosis or treatment of the claimant. The court shall also order the claimant to give consent and the right to inspect and copy any hospital, medical or other records and reports that are within the scope of discovery under
s. 804.01 (2).
804.10(3)(a)(a) No evidence obtained by an adverse party by a court-ordered examination under
sub. (1) or inspection under
sub. (2) shall be admitted upon the trial by reference or otherwise unless true copies of all reports prepared pursuant to such examination or inspection and received by such adverse party have been delivered to the other party or attorney not later than 10 days after the reports are received by the adverse party. The party claiming damages shall deliver to the adverse party, in return for copies of reports based on court-ordered examination or inspection, a true copy of all reports of each person who has examined or treated the claimant with respect to the injuries for which damages are claimed.
804.10(3)(b)
(b) This subsection applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subsection does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with any other statute.
804.10(4)
(4) Upon receipt of written authorization and consent signed by a person who has been the subject of medical care or treatment, or in case of the death of such person, signed by the personal representative or by the beneficiary of an insurance policy on the person's life, the physician or other person having custody of any medical or hospital records or reports concerning such care or treatment, shall forthwith permit the person designated in such authorization to inspect and copy such records and reports. Any person having custody of such records and reports who unreasonably refuses to comply with such authorization shall be liable to the party seeking the records or reports for the reasonable and necessary costs of enforcing the party's right to discover.
804.10 History
History: Sup. Ct. Order, 67 W (2d) 585, 680 (1975);
1975 c. 218;
1993 a. 424;
1995 a. 345.
804.10 Annotation
Although personal injury claimant's counsel attended stipulated independent medical examination without court order or defendant's knowledge, trial court did not abuse discretion in refusing to limit cross-examination of the physician since presence of counsel was not prejudicial and court order could have been obtained under Whanger guidelines. Karl v. Employers Ins. of Wausau, 78 W (2d) 284, 254 NW (2d) 255.
804.10 Annotation
Medical records discovery in Wisconsin personal injury litigation. 1974 WLR 524.
804.10 Annotation
Court may order claimant to consent to release and inspection of health care records and reports of treatment received prior to claimed injury if requester shows that records may reasonably lead to discovery of admissible evidence and claimant has opportunity to assert physician-patient privilege. Ambrose v. General Cas. Co. 156 W (2d) 306, 456 NW (2d) 642 (Ct. App. 1990).
804.11
804.11
Requests for admission. 804.11(1)(a)(a) Except as provided in
s. 804.015, a party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of
s. 804.01 (2) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. 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.
804.11(1)(b)
(b) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon the defendant. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that he or she had made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to
s. 804.12 (3) deny the matter or set forth reasons why the party cannot admit or deny it.
804.11(1)(c)
(c) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with this section, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial.
Section 804.12 (1) (c) applies to the award of expenses incurred in relation to the motion.
804.11(2)
(2) Effect of admission. Any matter admitted under this section is conclusively established unless the court on motion permits withdrawal or amendment of the admission. The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits. Any admission made by a party under this section is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.
804.11 History
History: Sup. Ct. Order, 67 W (2d) 585, 682 (1975);
1975 c. 218;
1977 c. 447 s.
210;
1983 a. 192; Sup. Ct. Order No.
95-04, 191 W (2d), xxi (1995);
1997 a. 133.
804.11 Annotation
Court erred by allowing defendant to withdraw admission of liability. Schmid v. Olsen, 111 W (2d) 228, 330 NW (2d) 547 (1983).
804.11 Annotation
Summary judgment can be based upon party's failure to respond to request for admission, even where admission would be dispositive of entire case. Bank of Two Rivers v. Zimmer, 112 W (2d) 624, 334 NW (2d) 230 (1983).
804.11 Annotation
Request for admission of negligence claim's total value is not proper subject under section. Kettner v. Milwaukee Mut. Ins. 146 W (2d) 636, 431 NW (2d) 737 (Ct. App. 1988).
804.11 Annotation
Requests For Admissions in Wisconsin Civil Procedure: Civil Litigation's Double-Edged Sword. Kinsler. 78 MLR 625.
804.12
804.12
Failure to make discovery; sanctions. 804.12(1)(1)
Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
804.12(1)(a)
(a)
Motion. If a deponent fails to answer a question propounded or submitted under
s. 804.05 or
804.06, or a corporation or other entity fails to make a designation under
s. 804.05 (2) (e) or
804.06 (1), or a party fails to answer an interrogatory submitted under
s. 804.08, or if a party, in response to a request for inspection submitted under
s. 804.09, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he or she applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to
s. 804.01 (3).
804.12(1)(b)
(b)
Evasive or incomplete answer. For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer.
804.12(1)(c)1.1. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
804.12(1)(c)2.
2. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
804.12(1)(c)3.
3. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
804.12(2)(a)(a) If a party or an officer, director, or managing agent of a party or a person designated under
s. 804.05 (2) (e) or
804.06 (1) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under
sub. (1) or
s. 804.10, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
804.12(2)(a)1.
1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
804.12(2)(a)2.
2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;
804.12(2)(a)3.
3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
804.12(2)(a)4.
4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical, mental or vocational examination.
804.12(2)(b)
(b) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
804.12(3)
(3) Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under
s. 804.11, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in the making of that proof, including reasonable attorney fees. The court shall make the order unless it finds that (a) the request was held objectionable pursuant to
sub. (1), or
(b) the admission sought was of no substantial importance, or (c) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (d) there was other good reason for the failure to admit.
804.12(4)
(4) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection or supplement responses. If a party or an officer, director, or managing agent of a party or a person designated under
s. 804.05 (2) (e) or
804.06 (1) to testify on behalf of a party fails (a) to appear before the officer who is to take the party's deposition, after being served with a proper notice, or (b) to serve answers or objections to interrogatories submitted under
s. 804.08, after proper service of the interrogatories, or (c) to serve a written response to a request for inspection submitted under
s. 804.09, after proper service of the request, or (d) seasonably to supplement or amend a response when obligated to do so under
s. 804.01 (5), the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others, it may take any action authorized under
sub. (2) (a) 1.,
2. and
3. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by
s. 804.01 (3).
804.12(5)
(5) Telephone hearings. Motions under this section may be heard as prescribed in
s. 807.13.
804.12 History
History: Sup. Ct. Order, 67 W (2d) 585, 684 (1975);
1975 c. 94 s.
3;
1975 c. 200,
218; Sup. Ct. Order, 141 W (2d) xiii (1987);
1993 a. 424,
490.
804.12 Cross-reference
Cross-reference: See also s.
885.11 (5) regarding failure to appear at deposition.
804.12 Note
Judicial Council Note, 1988: Sub. (5) [created] allows discovery motions to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
804.12 Annotation
If imposed solely for failure to obey court order, without evidence of bad faith or no merit, the sanctions of (2) (a) deny due process. Dubman v. North Shore Bank, 75 W (2d) 597, 249 NW (2d) 797.
804.12 Annotation
Defendant's failure to produce subpoenaed documents did not relieve plaintiff of obligation to make prima facie case. Paulsen Lumber, Inc. v. Anderson, 91 W (2d) 692, 283 NW (2d) 580 (1979).
804.12 Annotation
Although plaintiff failed in duty to disclose expert's identity, defendant failed to show hardship which would justify excluding expert's testimony. Jenzake v. City of Brookfield, 108 W (2d) 537, 322 NW (2d) 516 (Ct. App. 1982).
