805.07(2)
(2) Subpoena requiring the production of material. 805.07(2)(a)(a) A subpoena may command the person to whom it is directed to produce the books, papers, documents, electronically stored information, or tangible things designated therein. A subpoena may specify the form or forms in which electronically stored information is to be produced. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
805.07(2)(b)
(b) Notice of a 3rd-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a 3rd-party subpoena requests the production of books, papers, documents, electronically stored information, or tangible things that are within the scope of discovery under
s. 804.01 (2) (a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.
805.07(2)(c)
(c) If a subpoena does not specify a form for producing electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The person responding need not produce the same electronically stored information in more than one form.
805.07(2)(d)
(d) If information inadvertently produced in response to a subpoena is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
805.07(3)
(3) Protective orders. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things designated therein.
805.07(4)(a)(a) The subpoena shall be in the following form:
Subpoena
State of Wisconsin
.... County
The State of Wisconsin, To ....:
Pursuant to section 805.07 of the Wisconsin Statutes, you are hereby commanded to appear in person before [.... designating the court, officer, or person and place of appearance], on [.... date] at .... o'clock ...M., to give evidence in an action between ...., plaintiff, and ...., defendant. [Insert clause requiring the production of material, if appropriate]. Failure to appear may result in punishment for contempt which may include monetary penalties, imprisonment and other sanctions. Issued this .... day of ...., .... (year)
[Handwritten Signature]
Attorney for [identify party]
(or other official title)
[Address]
[Telephone Number]
805.07(4)(b)
(b) For a subpoena requiring the production of material, the following shall be inserted in the foregoing form: You are further commanded to bring with you the following: [describing as accurately as possible the books, papers, documents or other tangible things sought].
805.07(5)
(5) Substituted service. A subpoena may be served in the manner provided in
s. 885.03 except that substituted personal service may be made only as provided in
s. 801.11 (1) (b) and except that officers, directors, and managing agents of public or private corporations or limited liability companies subpoenaed in their official capacity may be served as provided in
s. 801.11 (5) (a).
805.07(6)
(6) Motion hearing procedure. Motions under
sub. (3) may be heard as prescribed in
s. 807.13.
805.07 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 697 (1975);
1979 c. 110; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 155;
1993 a. 112; Sup. Ct. Order No.
95-09, 195 Wis. 2d xiii (1996);
1997 a. 250;
1999 a. 85;
2005 a. 253; Sup. Ct. Order No.
09-01, 2010 WI 67, filed 7-6-10, eff. 1-1-11; Sup. Ct. Order No.
12-03, 2012 WI 114, filed 11-1-12, eff. 1-1-13.
805.07 Note
Judicial Council Note, 1988: Sub. (6) [created] allows motions for protective orders to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
805.07 Note
Judicial Council Note, 1995: Sub. (2) (b) requires notice of third-party discovery subpoenas in order to preserve the right of other parties to move to quash them.
805.07 Note
Judicial Council Note, 2010: The amendments to s. 805.07 (2) are modeled on F.R.C.P. 45(a) and (d). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 805.07 (2): Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information.
805.07 Note
Rule 45(a)(1)(B) is also amended, as is Rule 34(a), to provide that a subpoena is available to permit testing and sampling as well as inspection and copying. As in Rule 34, this change recognizes that on occasion the opportunity to perform testing or sampling may be important, both for documents and for electronically stored information. [Re Order effective Jan. 1, 2011]
805.07 Note
Judicial Council Note, 2012: Sup. Ct. Order No.
12-03 states that "the Judicial Council Notes to Wis. Stat. § 804.01 (2) (c), 804.01 (7), 805.07 (2) (d), and 905.03 (5) are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."
805.07 Note
Sub. (2) (d) is modeled on Fed. R. Civ. P. 45(d)(2)(B), which was amended in 2007 to adopt the wording of Rule 26(b)(5)(B), the so-called "clawback" provision of the federal rules.
805.07 Annotation
Subsection (3) only authorizes the court to quash a subpoena to compel production of tangible things, not a subpoena to compel attendance of a witnesses. State v. Gilbert,
109 Wis. 2d 501,
326 N.W.2d 744 (1982).
805.08(1)(1)
Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood, marriage or adoption to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.
805.08(2)
(2) Number of jurors. A sufficient number of jurors shall be summoned in the action so that the number applicable under
s. 756.06 remains after the exercise of all peremptory challenges to which the parties are entitled under
sub. (3). The court may order that additional jurors be selected. In that case, if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not initially participate in deliberations. The court may hold the additional jurors until the verdict is rendered or discharge them at any time.
805.08(3)
(3) Peremptory challenges. Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in a case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be selected under
sub. (2).
805.08(4)
(4) Jury view. On motion of any party, the jury may be taken to view any property, matter or thing relating to the controversy between the parties when it appears to the court that the view is necessary to a just decision. The moving party shall pay the expenses of the view. The expenses shall afterwards be taxed like other legal costs if the party who incurred them prevails in the action.
805.08 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 698 (1975);
1975 c. 218;
1977 c. 318;
1977 c. 447 s.
210;
1983 a. 226; Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997);
1999 a. 162.
805.08 Note
Judicial Council Note, 1983: Sub. (2) is amended by replacing the concept of "alternate" jurors with a provision allowing the court to order the impaneling of additional jurors. The panel is then reduced to the proper size by lot immediately prior to final submission of the cause. These changes are intended to promote an attentive attitude and a collegial relationship among the members of the jury.
805.08 Note
The first sentence of prior sub. (3) is moved to sub. (2) for more logical placement in the statutes. The reference to "alternate" jurors in the final sentence is changed to "additional" jurors to reflect the modification of sub. (2). [Bill 320S]
Effective date note
Judicial Council Note, 1996: This proposal changes ``impaneled" to ``selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. Adding the last sentence [to (2)] is intended to allow courts to keep additional jurors to replace any juror who might not be able to complete deliberations. Deliberations would begin anew with the additional juror in place [Re SCO No.
96-08 eff. 7-1-97].
805.08 Annotation
The mere expression of a predetermined opinion of guilt during voir dire does not disqualify the juror per se. Hammill v. State,
89 Wis. 2d 404,
278 N.W.2d 821 (1979).
805.08 Annotation
The disproportionate representation of a group in one array is insufficient to establish systematic exclusion. State v. Pruitt,
95 Wis. 2d 69,
289 N.W.2d 343 (Ct. App. 1980).
805.08 Annotation
Unless the defendant consents, it is reversible error for the trial court to substitute an alternate juror for a regular juror after jury deliberations have begun. State v. Lehman,
108 Wis. 2d 291,
321 N.W.2d 212 (1982).
805.08 Annotation
The trial court's deliberate, though well-intended, removal of a class or group for cause without examination of individuals in the group was improper. State v. Chosa,
108 Wis. 2d 392,
321 N.W.2d 280 (1982).
805.08 Annotation
The trial court, sitting as the trier of fact, committed an error of law in making and relying on an unrequested, unannounced, unaccompanied, and unrecorded view of an accident scene in assessing evidence produced at trial. American Family Mut. Ins. Co. v. Shannon,
120 Wis. 2d 560,
356 N.W.2d 175 (1984).
805.08 Annotation
When a juror incompletely responds to material questions on voir dire, a new trial is warranted if it is shown that it is more likely than not that the juror was biased against the moving party. State v. Wyss,
124 Wis. 2d 681,
370 N.W.2d 745 (1985). But see State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 Annotation
Law enforcement officers should not be automatically excused for cause from venire on grounds of implied bias. State v. Louis,
156 Wis. 2d 470,
457 N.W.2d 484 (1990). But see
State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 Annotation
Prospective jurors related to a state witness by blood or marriage to the third degree must be struck from the jury panel. State v. Gesch,
167 Wis. 2d 660,
482 N.W.2d 99 (1992). But see State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 Annotation
The verdict of a 13-member jury panel agreed to by the defense and prosecution was valid. State v. Ledger,
175 Wis. 2d 116,
499 N.W.2d 199 (Ct. App. 1993).
805.08 Annotation
An appellate court should overturn a circuit court's determination that a prospective juror can be impartial only if the juror's bias is manifest, and not when there is a reasonable suspicion of bias. The test for manifest bias is stated. State v. Ferron,
219 Wis. 2d 481,
579 N.W.2d 654 (1998),
96-3425. But see
State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 Annotation
Juror bias may be actual, implied, or inferred. Inferred bias is a factual finding requiring evaluation of the facts and circumstances including those surrounding the juror's incomplete or incorrect response to questions during voir dire. Truthful responses do not prevent finding inferred bias. State v. Delgado,
223 Wis. 2d 270,
588 N.W.2d 1 (1999),
96-2194. But see State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 Annotation
The terms "statutory bias," "subjective bias," and "objective bias" are adopted as the proper terms for referring to types of jury bias, replacing the terms "implied bias," "subjective bias," and "objective bias." State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
Statutory bias refers to those situations described in sub. (1); a person falling within one of the sub. (1) descriptions may not serve regardless of the ability to be impartial. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
Subjective bias is revealed through the words and demeanor of the prospective juror as revealed on
voir dire; it refers to the juror's state of mind. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
Objective bias focuses on whether a reasonable person in the individual prospective juror's position could be impartial; the circuit court is particularly well positioned to determine objective bias. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
Wyss,
Louis, Gescch,
State v. Messelt, 185 Wis. 2d 254,
Ferron, Delgado, and
State v. Broomfield, 223 Wis. 2d 465, are cases through which jury bias jurisprudence has evolved; where each would fall given the new bias terminology adopted in this case is considered. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
There is no automatic disqualification of potential jurors who have been convicted of crimes. State v. Mendoza,
227 Wis. 2d 838,
596 N.W.2d 736 (Ct. App. 1998),
97-0952.
805.08 Annotation
A prospective juror who is the brother-in-law of a state witness is a relative by marriage to the 3rd degree under
Gesch and must be struck for cause as the relationship constitutes statutory bias
. Failure to do so is grounds for reversal and a new trial. State v. Czarnecki,
231 Wis. 2d 1,
604 N.W.2d 891 (Ct. App. 1999),
98-2406.
805.08 Annotation
In deciding subjective bias, the particular words of the juror are not the focus. A prospective juror need not respond in voir dire with unequivocal declarations of impartiality. State v. Oswald,
2000 WI App 3,
232 Wis. 2d 103,
606 N.W.2d 238,
97-1219. But see also Oswald v. Bertrand,
374 F.3d 475 (2003).
805.08 Annotation
Objective bias requires a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case, or the juror's intractable negative attitude to the justice system in general. A reasonable person can be impartial despite a relationship to a police officer or past experience as an officer. State v. Oswald,
2000 WI App 3,
232 Wis. 2d 103,
606 N.W.2d 238,
97-1219. But see also Oswald v. Bertrand,
249 F. Supp 2d 1078 (2003).
805.08 Annotation
A party who during voir dire neither requests further questioning nor objects to the seating of a juror may not later allege error in the trial court's failure to act
sua sponte in regard to a juror who may not be impartial. State v. Williams,
2000 WI App 123,
237 Wis. 2d 591,
614 N.W.2d 11,
99-0812.
805.08 Annotation
The court's finding that a murder trial juror was not objectively biased was reasonable. Although the juror had a business and social relationship with the victim, the juror did not have a personal connection to crucial evidence or a dispositive issue in the case, a negative attitude toward the justice system, or such a close relationship with the victim that no reasonable person in her position could not be impartial. State v. Lindell,
2000 WI App 180,
238 Wis. 2d 422,
617 N.W.2d 500,
99-2704.
805.08 Annotation
An administrative assistant employed by the county district attorney's office was not objectively biased because she worked for the same entity as the prosecuting attorney. The court declines to create a per se rule that excludes potential jurors for the sole reason that they are employed by the district attorney's office. State v. Smith,
2006 WI 74,
291 Wis. 2d 569,
716 N.W.2d 482,
04-2035.
805.08 Annotation
A demonstration of a juror's specific bias is not needed to remove a juror from deliberations when there are 12 other jurors whose impartiality is not in question. The trial court properly exercised its discretion when it designated a juror as an alternate based on its concern regarding her potential impartiality. The trial court has a duty to ensure that the impaneled jury is impartial; that is free of bias or prejudice. While the trial court in this case did not determine by lot which jurors would not participate in deliberations, this was appropriate, notwithstanding sub. (2), as the trial court has the discretion to remove a juror for cause during a trial proceeding. State v. Gonzalez,
2008 WI App 142,
314 Wis. 2d 129,
758 N.W.2d 153,
07-2160.
805.08 Annotation
The defendant was not entitled to a new trial even though she used a peremptory challenge to remove the judge's daughter-in-law from the jury. Because the defendant did not claim the jury was unfair or partial, a new trial was not required under the circumstances of the case. The defendant did not show that the presence of the challenged juror in the pool of potential jurors affected the defendant's substantial rights. State v. Sellhausen
2012 WI 5,
338 Wis. 2d 286,
809 N.W.2d 14,
10-0445.
805.08 Annotation
Guarantees of open public proceedings in criminal trials includes voir dire examination of potential jurors. Press-Enterprise Co. v. Superior Court of Cal.
464 U.S. 501 (1984).
805.08 Annotation
No new trial was required when a juror's failure to disclose during voir dire was harmless. Mc Donough Power Equipment, Inc. v. Greenwood,
464 U.S. 548 (1984).
805.08 Annotation
The use of peremptory challenges by a private litigant in a civil action to exclude potential jurors solely because of race violates the equal protection clause. Edmonson v. Leesville Concrete Co.,
500 U.S. 614,
114 L. Ed. 2d 660 (1991).
805.08 Annotation
If the issue of jury bias surfaces during or before trial, it is the trial judge's responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. The question is whether, given the indications of jury bias, the judge's inquiry was adequate. Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. Oswald v. Bertrand,
374 F.3d 475 (2004).
805.08 Annotation
Analyzing Juror Bias Exhibited During Voir Dire in Wisconsin: How to Lessen the Confusion. Raissi. 84 MLR 517 (2000).
805.08 Annotation
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757.
805.08 Note
Note: See also notes to Article I, section 7.
805.09
805.09
Juries of fewer than 12; five-sixths verdict. 805.09(2)
(2) Verdict. A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions.
805.09 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 700 (1975);
1977 c. 318;
1977 c. 447 s.
210; Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997).
805.09 Annotation
Five-sixths jury agreement is not required on all questions on the verdict, but on all questions necessary to support a judgment on a particular claim. A verdict must be reviewed on a claim-by-claim basis rather than as a whole. Giese v. Montgomery Ward, Inc.
111 Wis. 2d 392,
331 N.W.2d 585 (1983).
805.09 Annotation
The trial court's order to bifurcate the issues of liability and damages and to try the separate issues before separate juries contravened s. 805.05 (2) and cannot be reconciled with the requirement of sub. (2) that the same five-sixths of the jury must agree on all questions necessary to sustain a verdict. Waters v. Pertzborn,
2001 WI 62,
243 Wis. 2d 703,
627 N.W.2d 497,
99-1702.
805.10
805.10
Examination of witnesses; arguments. Unless the judge otherwise orders, not more than one attorney for each side shall examine or cross-examine a witness and not more than 2 attorneys on each side shall sum up to the jury. The plaintiff shall be entitled to the opening and final rebuttal arguments. Plaintiff's rebuttal shall be limited to matters raised by any adverse party in argument. Waiver of argument by either party shall not preclude the adverse party from making any argument which the adverse party would otherwise have been entitled to make. Before the argument is begun, the court may limit the time for argument.
805.10 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 701 (1975);
1975 c. 218.
805.10 Annotation
An attorney's concession during closing argument that his client was negligent could not be construed as a binding admission. Kuzmic v. Kreutzmann,
100 Wis. 2d 48,
301 N.W.2d 266 (Ct. App. 1980).
805.10 Annotation
This section authorizes judges to allow more than 2 attorneys on each side to sum up to the jury, but a judge may not limit to fewer than 2 the number of attorneys arguing on each side. In Interest of C.E.W.
124 Wis. 2d 47,
368 N.W.2d 47 (1985).
805.11
805.11
Objections; exceptions. 805.11(1)
(1) Any party who has fair opportunity to object before a ruling or order is made must do so in order to avoid waiving error. An objection is not necessary after a ruling or order is made.
805.11(2)
(2) A party raising an objection must specify the grounds on which the party predicates the objection or claim of error.
805.11(3)
(3) Exceptions shall never be made.
805.11 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 701 (1975);
1975 c. 218.
