The Committee has repeatedly been advised that the risk of privilege waiver, and the work necessary to avoid it, add to the costs and delay of discovery. When the review is of electronically stored information, the risk of waiver, and the time and effort required to avoid it, can increase substantially because of the volume of electronically stored information and the difficulty in ensuring that all information to be produced has in fact been reviewed. Rule 26(b)(5)(A) provides a procedure for a party that has withheld information on the basis of privilege or protection as trial-preparation material to make the claim so that the requesting party can decide whether to contest the claim and the court can resolve the dispute. Rule 26(b)(5)(B) is added to provide a procedure for a party to assert a claim of privilege or trial-preparation material protection after information is produced in discovery in the action and, if the claim is contested, permit any party that received the information to present the matter to the court for resolution.
Rule 26(b)(5)(B) does not address whether the privilege or protection that is asserted after production was waived by the production. The courts have developed principles to determine whether, and under what circumstances, waiver results from inadvertent production of privileged or protected information. Rule 26(b)(5)(B) provides a procedure for presenting and addressing these issues. Rule 26(b)(5)(B) works in tandem with Rule 26(f), which is amended to direct the parties to discuss privilege issues in preparing their discovery plan, and which, with amended Rule 16(b), allows the parties to ask the court to include in an order any agreements the parties reach regarding issues of privilege or trial-preparation material protection. Agreements reached under Rule 26(f)(4) and orders including such agreements entered under Rule 16(b)(6) may be considered when a court determines whether a waiver has occurred. Such agreements and orders ordinarily control if they adopt procedures different from those in Rule 26(b)(5)(B).
A party asserting a claim of privilege or protection after production must give notice to the receiving party. That notice should be in writing unless the circumstances preclude it. Such circumstances could include the assertion of the claim during a deposition. The notice should be as specific as possible in identifying the information and stating the basis for the claim. Because the receiving party must decide whether to challenge the claim and may sequester the information and submit it to the court for a ruling on whether the claimed privilege or protection applies and whether it has been waived, the notice should be sufficiently detailed so as to enable the receiving party and the court to understand the basis for the claim and to determine whether waiver has occurred. Courts will continue to examine whether a claim of privilege or protection was made at a reasonable time when delay is part of the waiver determination under the governing law.
After receiving notice, each party that received the information must promptly return, sequester, or destroy the information and any copies it has. The option of sequestering or destroying the information is included in part because the receiving party may have incorporated the information in protected trial-preparation materials. No receiving party may use or disclose the information pending resolution of the privilege claim. The receiving party may present to the court the questions whether the information is privileged or protected as trial-preparation material, and whether the privilege or protection has been waived. If it does so, it must provide the court with the grounds for the privilege or protection specified in the producing party's notice, and serve all parties. In presenting the question, the party may use the content of the information only to the extent permitted by the applicable law of privilege, protection for trial-preparation material, and professional responsibility.
If a party disclosed the information to nonparties before receiving notice of a claim of privilege or protection as trial-preparation material, it must take reasonable steps to retrieve the information and to return it, sequester it until the claim is resolved, or destroy it.
Whether the information is returned or not, the producing party must preserve the information pending the court's ruling on whether the claim of privilege or of protection is properly asserted and whether it was waived. As with claims made under Rule 26(b)(5)(A), there may be no ruling if the other parties do not contest the claim.
The trial court has no authority to order the production of documents relevant to a claim upon which it could grant no relief. State ex rel. Rilla v. Dodge County Circuit Court, 76 Wis. 2d 429
, 251 N.W.2d 476
Discovery, although it has a purpose of finding admissible evidence, does not imply that what is discovered will be admissible. Shibilski v. St. Joseph's Hospital, 83 Wis. 2d 459
, 266 N.W.2d 264
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).
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).
Public records germane to pending litigation were available under s. 19.35 even though the discovery cutoff deadline had passed. State ex rel. Lank v. Rzentkowski, 141 Wis. 2d 846
, 416 N.W.2d 635
(Ct. App. 1987).
A lawyer's decision to spend a client's resources on photographic or video surveillance is protected work product. Disclosure of the fact of the surveillance and description of the materials obtained would impinge on the core of the work-product doctrine. Ranft v. Lyons, 163 Wis. 2d 282
, 471 N.W.2d 254
(Ct. App. 1991).
A litigant's request to see his or her file that is in the possession of current or former counsel does not waive the attorney-client and work-product privileges and does not allow other parties to the litigation discovery of those files. Borgwardt v. Redlin, 196 Wis. 2d 342
, 538 N.W.2d 581
(Ct. App. 1995), 94-2701
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
Unfiled pretrial materials in a civil action between private parties are not public records and neither the public nor the press has either a common law or constitutional right of access to those materials. State ex rel. Mitsubishi v. Milwaukee County, 2000 WI 16
, 233 Wis. 2d 1
, 605 N.W.2d 868
The test of whether the work-product doctrine under sub. (2) (c) applies is whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. Once a matter is classified as work product, the party moving for discovery must make an adequate showing that the information sought is unavailable from other sources and that a denial of discovery would prejudice the movant's preparation for trial. Lane v. Sharp Packaging Systems, 2002 WI 28
, 251 Wis. 2d 68
, 640 N.W.2d 788
Discoverability of work-product materials reviewed by testifying experts. Matthews. Wis. Law. June 2002.
The new Wisconsin rules of civil procedure: Chapter 804. Graczyk, 59 MLR 463.
Witness statements: Current state of discovery in Wisconsin. Van Domelen and Benson. WBB May 1988.
What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig & Gleisner. Wis. Law. July 2010.
E-Discovery: Who pays? Edwards. Wis. Law. Oct. 2012.
Sweeping Changes to Rules of Civil Procedure. Billings, Gegios, and Bialzik. Wis. Law. June 2018.
Electronically Stored Information: Balancing Proportionality & Preservation. Edwards. Wis. Law. Oct. 2020.
Limits on discovery by prisoners. 804.015(2)
Unless ordered by the court, a prisoner in an action or special proceeding may not obtain discovery before the court receives a copy of the answer or other responsive pleading in the action commenced by the prisoner. If a defendant submits a motion to dismiss or a motion for summary judgment, no discovery may be obtained until the court decides that the prisoner has a reasonable opportunity to prevail on the merits, or until the court decides the merits of the motion, unless the court orders a party to submit to discovery.
If a court allows a prisoner to obtain discovery under sub. (2)
before the court decides that the prisoner has a reasonable opportunity to prevail on the merits, receives a copy of the answer or other responsive pleading in the action, or decides the merits of a motion to dismiss or a motion for summary judgment, the court order shall be narrowly tailored to limit the discovery to allow only discovery that is essential to enable the prisoner to obtain the evidence necessary to his or her case. The court shall limit the discovery so as to provide a minimal intrusion in the activities of any person subject to discovery under this subsection.
If a prisoner commences an action or special proceeding, the court shall limit the number of requests for interrogatories, production of documents or admissions to 15, unless good cause is shown for any additional requests. This number may not be expanded by the use of subparts to the interrogatories.
This section does not apply when the prisoner appears by an attorney who is licensed to practice law in this state.
History: 1997 a. 133
Perpetuation of testimony by deposition. 804.02(1)(a)(a)
A person who desires to perpetuate personal testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in any such court in this state. The petition shall be entitled in the name of the petitioner and shall show that the petitioner expects to be a party to an action; the subject matter of the expected action and the petitioner's interest therein; the facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it; the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known; and the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
Notice and service.
The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will move the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the state in the manner provided in s. 801.11
for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in s. 801.11
, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or is an individual adjudicated or alleged to be incompetent, s. 803.01 (3)
Order and examination.
If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with this chapter; and the court may make orders of the character provided for by ss. 804.09
. For the purpose of applying this chapter to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
Use of deposition.
If a deposition to perpetuate testimony is taken under this section, or if, although not so taken, it would be otherwise admissible in the courts of this state, it may be used in any action involving the same subject matter subsequently brought in this state in accordance with s. 804.07
If an appeal has been taken from a judgment of a court of this state or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court.
In such case, the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the court. The motion shall show all of the following:
The names and addresses of persons to be examined and the substance of the testimony which the moving party expects to elicit from each of those persons.
The reasons for perpetuating the testimony of the persons under subd. 1.
If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by ss. 804.09
and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this chapter for depositions taken in actions pending in the court.
Sup. Ct. Order, 67 Wis. 2d 585, 660 (1975); 1975 c. 218
; 1993 a. 486
; 2005 a. 387
; 2021 a. 238
Persons before whom depositions may be taken. 804.03(1)(1)
Within the United States.
Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of this state or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.
(2) In foreign countries.
In a foreign country, depositions may be taken on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States; before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony; or pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on motion and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed “To the Appropriate Authority in (here name the country)". Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under this chapter.
(3) Disqualification for interest.
No deposition may be taken before a person who is a party to the action or a relative or employee or attorney, or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action. No deposition may be taken before a person who has entered into a contract for court reporting services unless the contract is limited to a particular action or incident. This subsection does not apply to a person who records or transcribes depositions for a public agency, as defined in s. 66.0825 (3) (h)
For the purposes of this section, an oath may be administered to a remotely located individual using audio-visual equipment. An officer administering an oath shall be in simultaneous communication with all parties to the deposition, whether or not in the physical presence of any of them. Remote administration of an oath at a deposition via audio-visual communications technology shall constitute the administration of an oath before a court reporter.
Court reporters qualified to administer an oath in this state may administer an oath to a witness at a deposition remotely via audio-visual communications technology from a location within this state provided the person administering the oath can see and hear the witness and can identify the witness.
If a witness is not located within this state, the witness may consent to being placed under oath remotely via audio-visual communication technology by a court reporter qualified to administer an oath in this state.
Effective date note
Sub. (4) is created eff. 7-1-22 by Sup. Ct. Order No. 21-05
Sup. Ct. Order, 67 Wis. 2d 585, 663 (1975); 1975 c. 218
; 2003 a. 227
; Sup. Ct. Order No. 21-05
, 2022 WI 24, filed 4-21-22, eff. 7-1-22; 2021 a. 238
; s. 35.17 correction in (4) (b), (c).
Stipulations regarding discovery procedure.
Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by this chapter for other methods of discovery.
History: Sup. Ct. Order, 67 Wis. 2d 585, 664 (1975).
Limits on quantity of depositions.
A party shall be limited, unless otherwise stipulated or ordered by the court in a manner consistent with s. 804.01 (2)
, to a reasonable number of depositions, not to exceed 10 depositions, none of which may exceed 7 hours in duration.
History: 2017 a. 235
Depositions upon oral examination. 804.05(1)(1)
When depositions may be taken.
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 oral examination. 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 named person or attorney meeting the requirements of sub. (2) (a)
. Such notice shall have the force of a subpoena addressed to the deponent. 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 party seeking to take the deposition is the state agency or officer to whose custody the prisoner has been committed.
(2) Notice of examination: general requirements; special notice; non-stenographic recording; production of documents and things; deposition of organization. 804.05(2)(a)
A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, 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. If a subpoena requiring the production of materials is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
The court may for cause shown enlarge or shorten the time for taking the deposition.
The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means or videotape means as provided in ss. 885.40
, in which event the order shall designate the manner of recording, preserving and filing the deposition and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at the party's expense.
The notice to a party deponent may be accompanied by a request made in compliance with s. 804.09
for the production of documents and tangible things at the taking of the deposition. The procedure of s. 804.09
shall apply to the request.
A party may in the notice name as the deponent 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 and designate with reasonable particularity the matters on which examination is requested. The organization or state officer so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph does not preclude taking a deposition by any other procedure authorized by statute or rule.
(3) Depositions; place of examination. 804.05(3)(a)(a)
A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by s. 804.01 (2)
, but in that event the subpoena will be subject to sub. (2)
and s. 804.01 (3)
Any party may be compelled by notice under sub. (2)
to give a deposition at any place within 100 miles from the place where that party resides, is employed or transacts business in person, or at such other convenient place as is fixed by an order of court. A plaintiff may also be compelled by like notice to give a deposition at any place within the county where the action is commenced or is pending.
A plaintiff who is not a resident of this state may be compelled by notice under sub. (2)
to attend a deposition at the plaintiff's expense at any place within the county where the action is commenced or is pending, or at any place within 100 miles from the place where that plaintiff resides, is employed or transacts business in person, or at such other convenient place as is fixed by an order of court.
A defendant who is not a resident of this state may be compelled by subpoena served within this state to give a deposition at any place within 100 miles from the place where that defendant is served.
A nonparty deponent may be compelled by subpoena served within this state to give a deposition at any place within 100 miles from the place where the nonparty deponent resides, is employed, transacts business in person or is served, or at such other convenient place as is fixed by an order of court.
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.
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.
(4) Examination and cross-examination; record of examination; oath; objections. 804.05(4)(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
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.
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.
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.
(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.
(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.
(7) Certification and service by officer; exhibits; copies; notice of service. 804.05(7)(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.
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:
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
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.
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.
Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.