Chapter 804

804.12(4m) (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.

804.12(5) (5) Telephone hearings. Motions under this section may be heard as prescribed in s. 807.13.

804.12 History History: Sup. Ct. Order, 67 Wis. 2d 585, 684 (1975); 1975 c. 94 s. 3; 1975 c. 200, 218; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1993 a. 424, 490; Sup. Ct. Order No. 09-01, 2010 WI 67, filed 7-6-10, eff. 1-1-11; 2017 a. 235.

804.12 Cross-reference Cross-reference: See also s. 885.11 (5) regarding failure to appear at deposition.

804.12 Note Judicial Council Note, 1988: Sub. (5) [created] allows discovery motions to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

804.12 Note 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.

804.12 Note 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.

804.12 Note 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.

804.12 Note 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]

804.12 Annotation 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 (1977).

804.12 Annotation 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 (1979).

804.12 Annotation 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).

804.12 Annotation 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).

804.12 Annotation 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 (1993).

804.12 Annotation The Wisconsin Personnel Commission may not award costs and attorney’s 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 (1993).

804.12 Annotation Discussing the application of sub. (3). Michael A.P. v. Solsrud, 178 Wis. 2d 137, 502 N.W.2d 918 (Ct. App. 1993).

804.12 Annotation 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).

804.12 Annotation 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.

804.12 Annotation 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 (1999), 96-3356.

804.12 Annotation Counsel’s egregious acts may be imputed to the client. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1999), 97-3404.

804.12 Annotation 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, 00-1739.

804.12 Annotation 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, 00-2427.

804.12 Annotation 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, 99-2944.

804.12 Annotation 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, 02-2424.

804.12 Annotation 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, 05-0189.

804.12 Annotation 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, 06-0980.

804.12 Annotation 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, 06-0813.

804.12 Annotation 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, 09-1321.

804.12 Annotation 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, 18-0071.

804.12 Annotation What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig, & Gleisner. Wis. Law. July 2010.