Paragraph (c) contains an important addition to the Uniform Rule. It provides that if a party to the out-of-state proceeding retains an attorney licensed to practice in Wisconsin, and that attorney receives the original or a true copy of the out-of-state subpoena, the attorney may issue the subpoena. This is consistent with s. 805.07 (1) which permits a subpoena to be issued by, among others, an attorney of record of any party in a civil action or special proceeding.
The committee envisions the standard procedure under this section will become as follows, using as an example a case filed in Kansas (the trial state) where the witness to be deposed lives in Wisconsin (the discovery state): A lawyer of record for a party in the action pending in Kansas will issue a subpoena in Kansas (the same way lawyers in Kansas routinely issue subpoenas in pending actions). That lawyer may then check with the clerk's office, in the Wisconsin county in which the witness to be deposed lives, to obtain a copy of its subpoena form. The lawyer will then prepare a Wisconsin subpoena so that it has the same terms as the Kansas subpoena. The lawyer will then submit the completed and executed Kansas subpoena and the completed but not yet executed Wisconsin subpoena to the clerk's office in Wisconsin. In addition, the lawyer might prepare a short transmittal letter to accompany the Kansas subpoena, advising the clerk that the Wisconsin subpoena is being sought pursuant to Wis. Stat. s. 887.24 (3). The clerk of court, upon being given the Kansas subpoena, will then issue the identical Wisconsin subpoena.
The process server (or other agent of the party) will then serve the Wisconsin subpoena on the deponent in accordance with Wisconsin law.
Neither the Uniform Interstate Deposition and Discovery Act nor Wis. Stat. s. 887.24 use the term “presented." Both rules use the term “submit," but the Judicial Council drafting committee considers the terms synonymous in this context.
2015 Uniform Comment (Sub. (3)): The term “Court of Record" was chosen to exclude non-court of record proceedings from the ambit of the Act. The committee concluded that extending the Act to such proceedings as arbitrations would be a significant expansion that might generate resistance to the Act. A “Court of Record" includes anyone who is authorized to issue a subpoena under the laws of that state, which usually includes an attorney of record for a party in the proceeding.
The term “Presented" to a clerk of court includes delivering to or filing. Presenting a subpoena to the clerk of court in the discovery state, so that a subpoena is then issued in the name of the discovery state, is the necessary act that invokes the jurisdiction of the discovery state, which in turn makes the newly issued subpoena both enforceable and challengeable in the discovery state.
The advantages of this process are readily apparent. The act of the clerk of court is ministerial, yet is sufficient to invoke the jurisdiction of the discovery state over the deponent. The only documents that need to be presented to the clerk of court in the discovery state are the subpoena issued in the trial state and the draft subpoena of the discovery state. There is no need to hire local counsel to have the subpoena issued in the discovery state, and there is no need to present the matter to a judge in the discovery state before the subpoena can be issued. In effect, the clerk of court in the discovery state simply reissues the subpoena of the trial state, and the new subpoena is then served on the deponent in accordance with the laws of the discovery state. The process is simple and efficient, costs are kept to a minimum, and local counsel and judicial participation are unnecessary to have the subpoena issued and served in the discovery state.
This Act will not change or repeal the law in those states that still require a commission or letters rogatory to take a deposition in a foreign jurisdiction. The Act does, however, repeal the law in those discovery states that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states. It is the hope of the Conference that this Act will encourage states that still require the use of commissions or letters rogatory to repeal those laws.
The Act requires that, when the subpoena is served, it contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and of any party not represented by counsel. The committee believes that this requirement imposes no significant burden on the lawyer issuing the subpoena, given that the lawyer already has the obligation to send a notice of deposition to every counsel of record and any unrepresented parties. The benefits in the discovery state, by contrast, are significant. This requirement makes it easy for the deponent (or, as will frequently be the case, the deponent's lawyer) to learn the names of and contact the other lawyers in the case. This requirement can easily be met, since the subpoena will contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and of any party not represented by counsel (which is the same information that will ordinarily be contained on a notice of deposition and proof of service).
2015 Judicial Council Committee Note (Sub. (4)): Subsection 4 is similar to the Uniform Act; however it clarifies that it applies not only to a subpoena issued by a clerk of circuit court, but also to a subpoena issued by local counsel.
The Wisconsin clerk of circuit court will not create a case file when discovery is initiated nor collect a fee. This rule places the obligation of retaining the original subpoena and the proof of service on the lawyer initiating the discovery. A file will be created if a special proceeding is commenced to enforce, quash, or modify the subpoena.
Subsection 4 was also modified to substitute the term “party" in place of the term “attorney" to extend the rule to pro se parties.
2015 Uniform Comment (Sub. (5)): The Act requires that the discovery permitted by this section must comply with the laws of the discovery state. The discovery state has a significant interest in these cases in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery request. Therefore, the committee believes that the discovery procedure must be the same as it would be if the case had originally been filed in the discovery state.
2015 Judicial Council Committee Note (Sub. (6)): Paragraph (a) was modified to clarify that every filing in the special proceeding must also be served on all parties to the special proceeding, including the witness. A summons is unnecessary to initiate the action and service by mail or facsimile is permitted pursuant to s. 801.14 (2). Applications to enforce a subpoena must include proof of service of the subpoena on the witness.
Paragraph (b) is added to clarify procedural details for resolution of a dispute relating to discovery under this section.
Paragraph (c) is added to address the award of fees and expenses in a dispute relating to discovery under this section. This is consistent with motions to compel and for protective orders in discovery disputes under ss. 804.12 (1) (c) and 804.01 (3) (b).
Paragraph (d) is added to clarify the procedure for reviewing a decision of a circuit court on a dispute arising in connection with discovery under this article.
2015 Uniform Comment (Sub. (6)): The act requires that any application to the court for a protective order, or to enforce, quash, or modify a subpoena, or for any other dispute relating to discovery under this Act, must comply with the law of the discovery state. Those laws include the discovery state's procedural, evidentiary, and conflict of laws rules. Again, the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests, and this is easily accomplished by requiring that any discovery motions must be decided under the laws of the discovery state. This protects the deponent by requiring that all applications to the court that directly affect the deponent must be made in the discovery state.
The term “modify" a subpoena means to alter the terms of a subpoena, such as the date, time, or location of a deposition.
Evidentiary issues that may arise, such as objections based on grounds such as relevance or privilege, are best decided in the discovery state under the laws of the discovery state (including its conflict of laws principles).
Nothing in this act limits any party from applying for appropriate relief in the trial state. Applications to the court that affect only the parties to the action can be made in the trial state. For example, any party can apply for an order in the trial state to bar the deposition of the out-of-state deponent on grounds of relevance, and that motion would be made and ruled on before the deposition subpoena is ever presented to the clerk of court in the discovery state.
If a party makes or responds to an application to enforce, quash, or modify a subpoena in the discovery state, the lawyer making or responding to the application must comply with the discovery state's rules governing lawyers appearing in its courts. This act does not change existing state rules governing out-of-state lawyers appearing in its courts. (See Model Rule 5.5 and state rules governing the unauthorized practice of law.)
2015 Judicial Council Committee Note (Sub. (8)): This subsection is the same as Section 8 of the Uniform Act, except “or filed after" is inserted to improve clarity.
Witnesses sent to other states. 887.25(1)(1)
Upon presentation to any judge of a court of record in Wisconsin of the certificate of the judge or the clerk of any foreign court of record, under seal, stating that any person being or residing in Wisconsin is believed to be a necessary witness in any civil action pending in that court, the judge, if satisfied by such proof as the judge shall require that the testimony of the witness is necessary to the trial of the action, shall issue and attach to the certificate a subpoena commanding the witness to appear in the court where the action is pending, at the time and place stated therein, or show cause, before the judge, at a time and place fixed in the subpoena, why the witness should not appear as therein commanded. The judge may refuse to issue a subpoena or may vacate the subpoena after it is issued, if it appear that compliance will cause undue hardship to the witness.
If any person on whom the subpoena has been served, and to whom has been tendered the sum of 10 cents for each mile to be traveled to and from the court, together with the sum of $5 for each day that his or her attendance is required, neglects to attend and testify at the trial, the person shall be punished as for contempt of court unless the subpoena is vacated.
This section shall not apply to any action pending in any state, territory or country whose laws do not contain provisions similar to this section, requiring persons within their borders to attend for the purpose of testifying in any civil or criminal action pending in this state.
History: 1979 c. 257
; 1993 a. 486
For extradition of prisoners as witnesses, see s. 976.01
and for extradition of witnesses in criminal actions, see s. 976.02
Depositions outside state. 887.26(1)(1)
In any civil action, proceeding, or matter in which depositions may be taken within this state, the deposition of any witness outside the state may be taken before any officer as provided in s. 804.03 (1)
or as provided in the rules of the state or country where taken. Depositions outside the state may be taken orally or upon written questions as provided in this section.
(4) Commission to take.
A commission may issue from any court of record to take the deposition of any witness outside the state, after commencement of the action, except as provided in s. 804.015
or as provided in s. 804.02 (1)
, for any cause that is deemed sufficient by the court, or when required for use on any trial or hearing or upon any motion or proceeding. The commission shall be signed by the clerk and sealed and shall be accompanied by a copy of subs. (4)
, and (6)
The person desiring a commission shall prepare a notice of intent to obtain a commission and state in the caption of the notice of intent the name of the witness and his or her residence with particularity, and shall serve a copy of the notice of intent on the opposite party, with a notice that, at the expiration of 5 days from the date of the notice of intent, a commission will be issued directed to the court of jurisdiction of the residence of the witness, requesting that a subpoena issue from that court compelling the oral deposition of the witness, and specifying the reason for taking the same. Within the 5-day period the opposite party may file with the clerk and serve upon the other party objections to the issuance of the commission.
At the expiration of the 5 days, and no objection being received or sustained, the commission shall issue as provided in sub. (4)
. At the noticing person's expense, the commission shall be transmitted to the court of jurisdiction of residence of the witness, for issuance of the deposition subpoena in accord with the rules applicable to that court. No commission shall issue if the witness's residence is not given as required.
The person desiring a commission shall prepare a notice of intent to obtain a commission and state in the caption of the notice of intent the name of the witness and his or her residence with particularity, and shall serve a copy of the notice of intent on the opposite party, with a notice that, at the expiration of 5 days from the date of the notice of intent, a commission will be issued directed to the court of jurisdiction of the residence of the witness, requesting that a subpoena issue from that court compelling the deposition upon written questions of the witness, and specifying the reason for taking the same. The notice of intent shall be accompanied by the questions. Within the 5-day period, the opposite party may file with the clerk and serve upon the other party any objections to the issuance of the commission and serve his or her cross-questions; and state the name and residence of any person whom the opposite party desires to act as an additional commissioner, who must reside in the county in which the commissioner first named resides, and may serve any objections to the questions and any cross-questions.
If cross-questions are served, within 3 days after such service the noticing person may also serve redirect questions on the opposite party, who may, within 3 days after such service, serve objections to such redirect questions.
At the expiration of the period under subds. 1.
, and if no objection to the issuance of the commission has been received or sustained the commission shall issue, with the written questions, direct, cross and redirect, and all objections, and transmitted to the commissioner first named by mail or express at the expense of the moving party. But when any defendant shall not have appeared and the time for the defendant to plead has expired, no notice is required to be given such defendant, and the commission may issue on filing the direct questions as provided in sub. (4)
. At the noticing person's expense, the commission shall be transmitted to the court of jurisdiction of the residence of the witness, for issuance of the subpoena in accord with the rules applicable to that court. No commission shall issue if the witness's residence is not given as required.
Upon issuance of the commission, the noticing person shall transmit to the officer taking or transcribing the deposition, by mail or express, the direct, cross, and redirect questions, and the objections to the questions.
Before commencement of action.
When testimony is sought of a witness outside the state before commencement of an action as provided in s. 804.02 (1)
, the order issued under s. 804.02 (1) (c)
shall also include a commission in the form provided by sub. (4)
of this section.
(6) Duty of commissioner — examination and cross-examination; record. 887.26(6)(bm)
(bm) Examination by written questions.
Testimony shall be taken in the manner provided by s. 804.06 (2)
(cm) Certification and service by officer; exhibits; copies; notice of service.
The commissioner first named taking or transcribing the deposition shall have charge of and return the deposition, which return shall be in the same form and manner directed by the commission or as provided by s. 804.05 (7)
. If either commissioner shall not attend at the time and place so fixed, the other may execute the commission with like effect as if both were present, but such commissioner must certify in the return that the other had due notice but failed to attend.
The persons who take or transcribe the depositions and the witness shall be entitled to the fees allowed court reporters under s. 814.69 (1)
and witnesses for similar service by the law of this state, or as may be prescribed by the law of the state or country where taken.
Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1975 c. 218
; 1977 c. 187
; 1977 c. 323
; 1981 c. 317
; 1993 a. 486
; 2001 a. 61
; Sup. Ct. Order No. 05-06
, 2008 WI 32, 305 Wis. 2d xix; Sup. Ct. Order No. 08-19
, 2008 WI 105, 307 Wis. 2d xiii; Sup. Ct. Order No. 09-03
, 2010 WI 100, filed 7-27-10, eff. 1-1-11.
Depositions, translations of.
When the witness is unable to speak the English language, the judge of the court from which the commission issues may appoint some competent and disinterested person to translate, at the expense of the noticing person, the subpoena, rules, and deposition questions and answers, or any part thereof as may be necessary, from English into the language used by the witness or vice versa; and the translation shall be transcribed and maintained as part of the deposition transcript. The translator shall append to all translations the translator's affidavit that the translator knows English and the language of the witness, and that in making such translation the translator carefully and truly translated the proceedings from English into the witness's language or from the witness's language into English, and that the translation is correct. A translation under this paragraph shall have the same effect as if all the proceedings were in English, but the circuit court, upon the deposition being offered in evidence, may admit the testimony of witnesses learned in the language of the deposed witness for the purpose of correcting errors therein; and, if it shall appear that the first translation was in any respect so incorrect as to mislead the witness, the court may, in its discretion, continue the cause for the further taking of testimony.
Sup. Ct. Order No. 09-03
, 2010 WI 100, filed 7-27-10, eff. 1-1-11.