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 endorsed 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)1.1. 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:
804.05(7)(b)1.a.
a. 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
804.05(7)(b)1.b.
b. 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.
804.05(7)(b)2.
2. 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.
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 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,
133,
254;
2005 a. 253;
2007 a. 97.
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
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).
804.05 Annotation
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).
804.06
804.06
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.
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 Wis. 2d 585, 671 (1975);
1975 c. 218; Sup. Ct. Order, 158 Wis. 2d xxv (1990);
1993 a. 112,
486;
1997 a. 133.
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:
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 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.
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, endorsed, 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 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.
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 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 (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 Wis. 2d 339,
500 N.W.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 Wis. 2d 585, 676 (1975);
1975 c. 218;
1993 a. 112;
1997 a. 133.
804.08 Annotation
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).
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 Wis. 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 Wis. 2d 585, 680 (1975);
1975 c. 218;
1993 a. 424;
1995 a. 345.
804.10 Annotation
Although a personal injury claimant's counsel attended a stipulated independent medical examination without court order or the defendant's knowledge, the trial court did not abuse its discretion in refusing to limit cross-examination of the physician since the presence of counsel was not prejudicial and the court order could have been obtained under Whanger guidelines. Karl v. Employers Insurance of Wausau,
78 Wis. 2d 284,
254 N.W.2d 255 (1977).
