Chapter 804

CHAPTER 804

CIVIL PROCEDURE — DEPOSITIONS AND DISCOVERY

804.01   General provisions governing discovery.

804.015   Limits on discovery by prisoners.

804.02   Perpetuation of testimony by deposition.

804.03   Persons before whom depositions may be taken.

804.04   Stipulations regarding discovery procedure.

804.045   Limits on quantity of depositions.

804.05   Depositions upon oral examination.

804.06   Depositions upon written questions.

804.07   Use of depositions in court proceedings.

804.08   Interrogatories to parties.

804.09   Production of documents and things and entry upon land for inspection and other purposes.

804.10   Physical and mental examination of parties; inspection of medical documents.

804.11   Requests for admission.

804.12   Failure to make discovery; sanctions.

Ch. 804 Note NOTE: This chapter was created by Sup. Ct. Order, 67 Wis. 2d 585 (1975), which contains explanatory notes. Statutes prior to the 1983-84 edition also contain these notes.

804.01 804.01 General provisions governing discovery.

804.01(1) (1) Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under sub. (3), and except as provided in ss. 804.015, 804.045, 804.08 (1) (am), and 804.09, the frequency of use of these methods is not limited.

804.01(2) (2) Scope of discovery. Unless otherwise limited by order of the court in accordance with the provisions of this chapter, the scope of discovery is as follows:

804.01(2)(a) (a) In general. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

804.01(2)(am) (am) Limitations. Upon the motion of any party, the court shall limit the frequency or extent of discovery if it determines that one of the following applies:

804.01(2)(am)1. 1. The discovery sought is cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.

804.01(2)(am)2. 2. The burden or expense of the proposed discovery outweighs its likely benefit or is not proportional to the claims and defenses at issue considering the needs of the case, the amount in controversy, the parties’ resources, the complexity and importance of the issues at stake in the action, and the importance of discovery in resolving the issues.

804.01(2)(b) (b) Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial.

804.01(2)(bg) (bg) Third party agreements. Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or otherwise.

804.01(2)(c) (c) Trial preparation: materials.

804.01(2)(c)1. 1. Subject to par. (d) a party may obtain discovery of documents and tangible things otherwise discoverable under par. (a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. This protection is forfeited as to any material disclosed inadvertently in circumstances in which, if the material were a lawyer-client communication, the disclosure would constitute a forfeiture under s. 905.03 (5). This protection is waived as to any material disclosed by the party or the party’s representative if the disclosure is not inadvertent.

804.01(2)(c)2. 2. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. Section 804.12 (1) (c) applies to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

804.01(2)(d) (d) Trial preparation: experts. Discovery of facts known and opinions held by experts, otherwise discoverable under par. (a) and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

804.01(2)(d)1. 1. A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subd. 3. concerning fees and expenses as the court considers appropriate.

804.01(2)(d)2. 2. A party may, through written interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon motion showing that exceptional circumstances exist under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

804.01(2)(d)3. 3. Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for the time spent in responding to discovery under the last sentence of subds. 1. and 2.; and with respect to discovery obtained under the last sentence of subd. 1., the court may require, and with respect to discovery obtained under subd. 2., the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

804.01(2)(e) (e) Specific limitations on discovery of electronically stored information.

804.01(2)(e)1g. 1g. A party is not required to provide discovery of any of the following categories of electronically stored information absent a showing by the moving party of substantial need and good cause, subject to a proportionality assessment under par. (am) 2.:

804.01(2)(e)1g.a. a. Data that cannot be retrieved without substantial additional programming or without transforming it into another form before search and retrieval can be achieved.

804.01(2)(e)1g.b. b. Backup data that are substantially duplicative of data that are more accessible elsewhere.

804.01(2)(e)1g.c. c. Legacy data remaining from obsolete systems that are unintelligible on successor systems.

804.01(2)(e)1g.d. d. Any other data that are not available to the producing party in the ordinary course of business and that the party identifies as not reasonably accessible because of undue burden or cost. In response to a motion to compel discovery or for a protective order, the party from whom discovery is sought is required to show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may order discovery from such sources only if the requesting party shows good cause, considering the limitations of par. (am). The court may specify conditions for the discovery.

804.01(2)(e)1r. 1r. No party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information, or respond to an interrogatory under s. 804.08 (3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court:

804.01(2)(e)1r.a. a. The subjects on which discovery of electronically stored information may be needed, when such discovery should be completed, and whether discovery of electronically stored information shall be conducted in phases or be limited to particular issues.

804.01(2)(e)1r.b. b. Preservation of electronically stored information pending discovery.

804.01(2)(e)1r.c. c. The form or forms in which electronically stored information shall be produced.

804.01(2)(e)1r.d. d. The method for asserting or preserving claims of privilege or of protection of trial-preparation materials, and to what extent, if any, the claims may be asserted after production of electronically stored information.

804.01(2)(e)1r.e. e. The cost of proposed discovery of electronically stored information and the extent to which such discovery shall be limited, if at all, under sub. (3) (a).

804.01(2)(e)1r.f. f. In cases involving protracted actions, complex issues, or multiple parties, the utility of the appointment by the court of a referee under s. 805.06 or an expert witness under s. 907.06 to supervise or inform the court on any aspect of the discovery of electronically stored information.

804.01(2)(e)2. 2. If a party fails or refuses to confer as required by subd. 1r., any party may move the court for relief under s. 804.12 (1).

804.01(2)(e)3. 3. If after conferring as required by subd. 1r., any party objects to any proposed request for discovery of electronically stored information or objects to any response under s. 804.08 (3) proposing the production of electronically stored information, the objecting party may move the court for an appropriate order under sub. (3).

804.01(3) (3) Protective orders.

804.01(3)(a) (a) Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including but not limited to one or more of the following:

804.01(3)(a)1. 1. That the discovery not be had;

804.01(3)(a)2. 2. That the discovery may be had only by specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

804.01(3)(a)3. 3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

804.01(3)(a)4. 4. That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

804.01(3)(a)5. 5. That discovery be conducted with no one present except persons designated by the court;

804.01(3)(a)6. 6. That a deposition after being sealed be opened only by order of the court;

804.01(3)(a)7. 7. That a trade secret, as defined in s. 134.90 (1) (c), or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

804.01(3)(a)8. 8. That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

804.01(3)(b) (b) If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Section 804.12 (1) (c) applies to the award of expenses incurred in relation to the motion.

804.01(3)(c) (c) Motions under this subsection may be heard as prescribed in s. 807.13.