The responding party also is involved in determining the form of production. In the written response to the production request that Rule 34 requires, the responding party must state the form it intends to use for producing electronically stored information if the requesting party does not specify a form or if the responding party objects to a form that the requesting party specifies. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs. A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form. Additional time might be required to permit a responding party to assess the appropriate form or forms of production.
The option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature. [Re Order effective Jan. 1, 2011]
What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig, & Gleisner. Wis. Law. July 2010.
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.
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)
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.
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.
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.
Sup. Ct. Order, 67 Wis. 2d 585, 680 (1975); 1975 c. 218
; 1993 a. 424
; 1995 a. 345
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
, 58 Wis. 2d 461
(1973), guidelines. Karl v. Employers Insurance of Wausau, 78 Wis. 2d 284
, 254 N.W.2d 255
The trial court may order a claimant to consent to the release and inspection of health care records and reports of treatment received prior to the claimed injury if the requester shows that the records may reasonably lead to discovery of admissible evidence and the claimant has an opportunity to assert physician-patient privilege. Ambrose v. General Casualty Co. of Wisconsin, 156 Wis. 2d 306
, 456 N.W.2d 642
(Ct. App. 1990).
Medical Records Discovery in Wisconsin Personal Injury Litigation. Pokrass. 1974 WLR 524.
Avoiding E-Discovery Traps. Kehoe & Rummelhoff. Wis. Law. June 2011.
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.
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.
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.
(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.
Sup. Ct. Order, 67 Wis. 2d 585, 682 (1975); 1975 c. 218
; 1977 c. 447
; 1983 a. 192
; Sup. Ct. Order No. 95-04
, 191 Wis. 2d, xxi (1995); 1997 a. 133
The trial court erred in ruling that requests for admissions were limited to matters not denied in the pleadings. Schmid v. Olsen, 111 Wis. 2d 228
, 330 N.W.2d 547
Summary judgment can be based upon a party's failure to respond to a request for admissions, even if an admission would be dispositive of the entire case. Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624
, 334 N.W.2d 230
A negligence claim's total value was not a proper subject of a request for admission. Kettner v. Milwaukee Mutual Insurance Co., 146 Wis. 2d 636
, 431 N.W.2d 737
(Ct. App. 1988).
A court may permit withdrawal of admissions if both statutory conditions under sub. (2) are met, but it is not required to do so. A court may consider a party's history of discovery abuse when deciding whether to permit withdrawal or amendment of admissions, when determining prejudice under sub. (2), and when otherwise exercising the court's authority to control the orderly and prompt processing of a case. Mucek v. Nationwide Communications, Inc., 2002 WI App 60
, 252 Wis. 2d 426
, 643 N.W.2d 98
The prejudice contemplated by sub. (2) is not simply that a party obtaining the admissions would be worse off without the admissions. Prejudice in maintaining the action or defense on the merits relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence with respect to the questions previously answered by the admissions. The fact that a trial must be adjourned, or that the time for discovery must be enlarged, does not necessarily mean that the non-moving party will suffer prejudice in maintaining the action or defense on the merits. A party will not be prejudiced in maintaining a defense on the merits if the party is placed in the same position the party would have been in had the admissions not been mistakenly made. Luckett v. Bodner, 2009 WI 68
, 318 Wis. 2d 423
, 769 N.W.2d 504
It is the burden of the party obtaining the admissions to demonstrate that withdrawal or amendment of the admissions will prejudice that party in maintaining the party's defense on the merits. Under sub. (2), excusable neglect is not a prerequisite for withdrawal or amendment of an admission. A court must consider the effect upon the litigation and prejudice to the resisting party, rather than focusing on the moving party's excuses for an erroneous admission. Luckett v. Bodner, 2009 WI 68
, 318 Wis. 2d 423
, 769 N.W.2d 504
Requests for Admission in Wisconsin Procedure: Civil Litigation's Double-Edged Sword. Kinsler. 78 MLR 625 (1995).
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:
If a deponent fails to answer a question propounded or submitted under s. 804.05
, 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 produce documents or 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)
Evasive or incomplete answer.
For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer.
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.
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.
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.
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:
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;
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;
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;
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.
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.
(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.
(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.
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)
(4m) Failure to provide electronically stored information.
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
(5) Telephone hearings.
Motions under this section may be heard as prescribed in s. 807.13
Sup. Ct. Order, 67 Wis. 2d 585, 684 (1975); 1975 c. 94
; 1975 c. 200
; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1993 a. 424
; Sup. Ct. Order No. 09-01
, 2010 WI 67, filed 7-6-10, eff. 1-1-11; 2017 a. 235
See also s. 885.11 (5)
regarding failure to appear at deposition.
Judicial Council Note, 1988: Sub. (5) [created] allows discovery motions to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Judicial Council Note, 2010: Section 804.12 (4m) is taken from F.R.C.P. 37(e). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 804.12 (4m): The “routine operation" of computer systems includes the alteration and overwriting of information, often without the operator's specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems.
The rule applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party's intervention to modify or suspend certain features of the routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement . . . means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold." Among the factors that bear on a party's good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.
The protection provided by this rule applies only to sanctions “under these rules." It does not affect other sources of authority to impose sanctions or rules of professional responsibility.
This rule restricts the imposition of “sanctions." It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information. [Re Order effective Jan. 1, 2011]
If imposed solely for failure to obey a court order, without evidence of bad faith or no merit, sanctions imposed under sub. (2) (a) deny due process. Dubman v. North Shore Bank, 75 Wis. 2d 597
, 249 N.W.2d 797
A defendant's failure to produce subpoenaed documents did not relieve the plaintiff of the obligation to make a prima facie case. Paulsen Lumber, Inc. v. Anderson, 91 Wis. 2d 692
, 283 N.W.2d 580
Although the plaintiff failed in the duty to disclose its expert's identity, the defendant failed to show hardship that would justify excluding the expert's testimony. Jenzake v. City of Brookfield, 108 Wis. 2d 537
, 322 N.W.2d 516
(Ct. App. 1982).
The court exercised proper discretion in dismissing a claim when the claimants failed to provide responsive answers to interrogatories, engaged in dilatory conduct, and there was no justification for their failure to appear and produce documents at depositions. Englewood Community Apartments Limited Partnership v. Alexander Grant & Co., 119 Wis. 2d 34
, 349 N.W.2d 716
(Ct. App. 1984).
Although the trial court had no power under sub. (2) (a) 4. to compel an HIV test, it did have that power in equity. Syring v. Tucker, 174 Wis. 2d 787
, 498 N.W.2d 370
The Wisconsin Personnel Commission may not award costs and attorney fees for discovery motions filed against the state under the Wisconsin Fair Employment Act. DOT v. Wisconsin Personnel Commission, 176 Wis. 2d 731
, 500 N.W.2d 664
The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531
, 535 N.W.2d 65
(Ct. App. 1995).
A circuit court may impose both non-compensatory and compensatory monetary sanctions for the same conduct. Hur v. Holler, 206 Wis. 2d 335
, 557 N.W.2d 429
(Ct. App. 1996), 95-2966
A substantiated assertion of privilege is substantial justification for failing to comply with an order to provide or permit discovery. Burnett v. Alt, 224 Wis. 2d 72
, 589 N.W.2d 21
If the constitution or statutes require proof before the circuit court can enter a particular judgment or order, the court cannot enter the judgment or order without the appropriate showing. The circuit court may determine that a party's action or inaction provides adequate cause for sanctions against that party, but that does not allow the court to dispense with any constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. Evelyn C.R. v. Tykila S., 2001 WI 110
, 246 Wis. 2d 1
, 629 N.W.2d 768
When a sanction causes the ultimate dismissal of an action, the sanctioned party's action must be egregious and without clear and justifiable excuse. Egregiousness is not synonymous with bad faith. A party can be guilty of egregiousness without acting in bad faith or having its counsel act in bad faith. Sentry Insurance v. Davis, 2001 WI App 203
, 247 Wis. 2d 501
, 634 N.W.2d 553
The trial court abused its discretion by ordering the defendant in a civil suit to forego its rights to insurance coverage for punitive damages when the issue of rights to insurance coverage was not before the court. City of West Allis v. Wisconsin Electric Power Co., 2001 WI App 226
, 248 Wis. 2d 10
, 635 N.W.2d 873
Sub. (4) did not provide authority for prohibiting the moving party, who had not failed to cooperate with discovery, from submitting an affidavit of another party to the action in favor of a motion for summary judgment when the party giving the affidavit had failed to appear for a deposition by a third party in the action. Daughtry v. MPC Systems, Inc., 2004 WI App 70
, 272 Wis. 2d 260
, 679 N.W.2d 808
It is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney's conduct to the client, if the client is blameless. Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19
, 299 Wis. 2d 81
, 726 N.W.2d 898
There is no requirement that conduct must be persistent in order to be egregious. When a defendant in a medical malpractice case destroyed all of the defendant's medical records in a single act, the magnitude of the loss under the circumstances was sufficient to constitute egregious conduct. Morrison v. Rankin, 2007 WI App 186
, 305 Wis. 2d 240
, 738 N.W.2d 588
It lies within the circuit court's discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant's right of trial by jury under article I, section 5
, of the Wisconsin Constitution when it denied the defendant's motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in this section and s. 806.02 by violating the circuit court's discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc., 2008 WI 73
, 310 Wis. 2d 623
, 752 N.W.2d 220
An order refusing to allow a disobedient party to support or oppose designated claims or defenses under sub. (2) (a) 2. is a severe sanction and requires a finding of egregiousness. Zarnstorff v. Neenah Creek Custom Trucking, 2010 WI App 147
, 330 Wis. 2d 174
, 792 N.W.2d 594
As a prerequisite to imposing default judgment under sub. (2) as a discovery sanction, a circuit court must find the sanctioned party engaged in egregious or bad faith conduct, without a clear and justifiable excuse, but need not determine the opposing party was prejudiced thereby. Mohns Inc. v. BMO Harris Bank National Ass'n, 2021 WI 8
, 395 Wis. 2d 421
, 954 N.W.2d 339
What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig, & Gleisner. Wis. Law. July 2010.