Civil Discovery In Wisconsin

By John J. DiMotto

     Chapter 804 of the Wisconsin Statutes addresses the rules of civil procedure with respect to discovery in civil cases.  It sets for what discovery can be sought, how it can be sought, the timing of obtaining the discovery as well as sanctions for failing to comply with discovery.  As is the case with most statutes, while the language of the various discovery statutes may appear clear and obvious, nothing could be farther from the truth.  A look at two specific statutory sections and case law discussing those statutes and discovery in general gives us an insight into what can be a mine field for the practitioner seeking discovery.

STATUTES

     804.01(1) addresses discovery methods.  They include depositions upon oral examination or written questions; written interrogatories; production of documents or things; permission to enter upon land or property for inspection purposes; physical and mental examinations and requests to admit.

     804.01(2)(a) addresses the scope of discovery in general.  It sets forth that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  Furthermore, it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

CASE LAW

1)  Wisconsin allows pretrial discovery to speed up trials.  Pretrial discovery is a fundamental due process right.   State v. Maday, 179 Wis.2d 346 (Ct. App. 1993).

2)  The right to discovery is an essential element of our adversary system.  In order for it to effectively ensure the ability of litigants to uncover the truth and to seek and be accorded justice, it is the court's responsibility to render decisions that do no harm to the fundamental and important right of litigants to access courts.  Sands v. Whitnall School District, 312 Wis.2d 1 (2008).

3)  Wisconsin's Discovery statute is a broad charter, consistent with the underlying purpose of pretrial discovery -- designed to formulate, define and narrow issues to be tried.  Ranft v. Lyons, 163 Wis.2d 282 (1991).

4)  The utmost freedom is allowed in taking depositions.  Restrictions are imposed upon their use.  State ex rel Dudek v. Circuit Court, 34 Wis.2d 559 (1967).

5)  Preparing for trial on issues in question is a reasonable expectation.  Discovery plays a vital role in issue formulation and limitation.  there is the need for effective sanctions against those who abuse discovery process.  Michael A.P. v. Solsrud, 178 Wis.2d 137 (Ct. App. 1993).

6)  Discovery is designed to eliminate surprise.  Meunier v. Ogurek, 140 Wis.2d 782 (Ct. App. 1981).

7)  The purpose of discovery is the ascertainment of the truth.  Broad discovery rules encourage thorough investigation and fosters revelation of objective truth.  Privileged matter presents limited exception to the broad scope of discovery.  Crawford v. Care Concepts Inc., 243 Wis.2d 119 (2001).

8)  Discovery is vested to the sound discretion of the trial court.  Borgwardt v. Redlin, 196 Wis.2d 342 (Ct. App. 1995).

9)  Management of discovery is within the discretion of the trial court.  Cruz v. All Saints Healthcare System Inc., 242 Wis.2d 432 (Ct. App. 2001).

10)  Discovery disputes are addressed to the trial court's discretion.  Braverman v. Columbia Hospital Inc., 244 Wis.2d 98 (Ct. App. 2001).

11)  Court can be asked to do an in camera inspection of records to decide whether the records are discoverable.  Konle v. Page, 205 Wis.2d 385 (Ct. App. 1996).

12)  If a party will not comply with a request discovery request, the aggrieved party can bring a motion to compel with the trial court.  State v. Hydrite Chemical Co., 220 Wis.2d 51 (Ct. App. 1998).

13)  The trial court can issue a protective order for good cause under 804.01(3)(a).  state ex rel Robinson v. Town of Bristol, 264 Wis.2d 318 (Ct. App. 2003).

14)  Because of the unique character of civil discovery, trial courts have substantial latitude to fashion protective orders. State ex rel Mitsubishi v. Milwaukee Co., 233 Wis.2d 1 (2000).

15)  Upon a showing of good cause, 804.01(3)(a) authorizes the trial court to make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense in a discovery proceeding. State v. Beloit Concrete Stone Co,, 103 Wis.2d 506 (Ct. App. 1991).

16)  Under 804.12(2)(b), the trial court can order attorneys fees for discovery abuse.  Determinations regarding what amount of attorneys fees were reasonably incurred as a result of discovery abuses are within the discretion of the trial court.  Hur v. Holler, 206 Wis.2d 334 (Ct. App. 1996).

17)  The trial court can impose sanctions for discovery violations. If the conduct is egregious or in bad faith and without clear and justifiable excuse and if a party has been given notice of potential dismissal for discovery violations the court can order dismissal with prejudice. Industrial Roofing Services Inc. v. Marquardt, 299 Wis.2d  81 (2007).

18)  Egregious misconduct is extreme, substantial and persistent.   Selmer Co. v. Rinn, 328 Wis.2d 263 (Ct. App. 2010).

19)  Because dismissal of a complaint terminates the litigation without regard to merits of the claim, it is an extremely drastic penalty that should be imposed only where such harsh measures are necessary. Conduct must be egregious or in bad faith -- both are not needed.  Bad faith must be intentional or deliberate.  Egregious conduct, though unintentional, it is so extreme, substantial and persistent that the trial court may dismiss the action. If the discovery sought is peripheral, this significantly reduces the severity of the conduct.  Hudson Diesel Inc. v. Kenall, 194 Wis.2d 532 (Ct. App. 1995).

20)  The trial court has the statutory and inherent authority to punish a party for failing to comply with pretrial order to disclose expert witnesses.  Glaeske v. Shaw, 261 Wis.2d 549 (Ct. App. 2003).

21)  Dismissing an action or striking pleadings are severe sanctions and should not be employed for violation of trivial procedural orders.  Geneva National Community Assn Inc. v. Friedman, 228 Wis.2d 572 (Ct. App. 1999).

22)  Court's discretion to impose sanctions is not dependent on showing the opposing party has been actually prejudiced by the delay.   Sentry Ins. v. Davis, 247 Wis.2d 501 (Ct. App. 2001).

CONCLUSION

     Discovery is an integral part of a lawsuit.  It is of the utmost importance that litigants be given the opportunity to obtain information via discovery so that the "search for the truth" can be fostered.  The rules regarding discovery must be followed and sanctions for violations must imposed if the integrity of the judicial process is to prevail.

     

Credibility of Witnesses

By: John J. DiMotto

     One of the most important functions of the "fact finder" in a judicial proceeding is to determine the credibility of the witnesses and the weight of the evidence.  In a jury trial, the "fact finder" is the jury.  In a court trial or when resolving motions, the "fact finder" is the judge.  So, what does the "fact finder" have to do in order to decide credibility and weight?  How does the "fact finder" make the determinations.  What are the guiding principles with respect to the determination of credibility or witnesses and weight of evidence?  A look at Wisconsin case law and the Standard Jury Instructions, Criminal (300) and Civil (215), gives us guidance and some answers.

CASE LAW

Jezeski v. Jezeski, 316 Wis.2d 178 (Ct. App. 2008)

1)  The fact finder has the responsibility to gauge the persuasiveness of the testimony.

2)  The fact finder resolves conflicts and inconsistencies in the evidence.

3)  The fact finder may believe some testimony of one witness and some testimony of another even though their testimonies, read as a whole, may be inconsistent.

4)  Unless testimony is inherently incredible, an appellate court may not substitute its judgment for the fact finder's judgment.

Teubel v. Prime Development Inc,, 249 Wis.2d 743 (Ct. App. 2002)

1)  The fact finder is the ultimate arbiter of the credibility of witnesses and the weight to be given to each witness' testimony.

2)  This is especially true because the fact finder has the opportunity to observe witnesses and their demeanor.

Covelli v. Covelli, 293 Wis.2d 707 (Ct. App. 2006)

1)  In a court trial, weight and credibility to be given to testimony is uniquely in the province of the trial court.

2)  The trial court has a superior view of the total circumstances of the witness's testimony.

State v. Kimbrough, 246 Wis.2d 648 (Ct. App. 2001)

1)  A trial court has the responsibility, when acting as the fact finder, to determine the credibility of each witness and can properly reject even uncontroverted testimony if it finds the facts underpinning the testimony untrue.

2)  Even when a single witness testifies, the trial court may choose to believe some assertions of the witness and disbelieve others.  This is especially true when the witness is the sole possessor of relevant facts.

Bretl v. LIRC, 204 Wis.2d 93 (Ct. App. 1996)

1)  Credible evidence is that which excludes speculation and conjecture.

State v. Lossman, 118 Wis.2d 526 (1984)

1)  In weighing evidence the jury (fact finder) may take into account matters of common knowledge and experience in the affairs of life.

State v. Lombard, 266 Wis.2d 887 (Ct. App. 2003)

1)  Jurors (fact finders) are not required to base their determinations of the weight and credibility of witnesses on the number of witnesses who testify in favor of or against the existence of a disputed fact.

State v. Kienitz, 227 Wis.2d 423 (1999)

1)  The fact finder is not bound by opinion of an expert,  The fact finder can accept or reject the expert's opinion.

2)  The fact finder may accept certain portions of an expert's testimony while disregarding other portions.

State v. Zanelli, 212 Wis.2d 358 (Ct. App. 1997)

1)  Conflicts in expert testimony goes to credibility not admissibility of the evidence.

State v. Turner, 186 Wis.2d 277 (Ct. App. 1994)

1)  Credibility of witnesses is determined by words, tonal quality, volume and speech patterns -- all of which give clues as to whether the witness is telling the truth.

State v. Anson, 275 Wis.2d 832 (Ct. App. 2004)

1)  The fact finder has no obligation to believe everything a witness says.

Rohl v. State, 65 Wis.2d 683 (1974)

1)  Incredible evidence  is evidence that is in conflict with uniform course of nature or with fully established or conceded facts.

Cogswell v. Robert Shaw Controls Col, 87 Wis.2d 243 (1979)

1)  When more than one reasonable inference can be drawn from credible evidence, an appellate court must accept the inference drawn by the fact finder.

State v. Kimberly B., 283 Wis.2d 731 (Ct. App. 2005)

1)  It if the jury's (fact finder's) task to sift and winnow the credibility of the witnesses.

Olson v. Milwaukee Auto Ins. Co., 266 Wis.106 (1954)

1)  Where testimony at trial conflicts, the court must recognize that it was for the jury (fact finder) to determine where the truth lies.

Yates v. Holt-Smith, 319 Wis.2d 756 (Ct. App. 2009)

1)  Determinations of subjective interest or motivation of witness are factual ad left to the fact finder.

State v. Krueger, 314 Wis.2d 605 (Ct. App. 2008)

1)  In the courtroom, during a jury trial, the jury is the lie detector.

State v. Scott, 234 Wis.2d 129 (Ct. App. 2000)

1)  A trial is a search for the truth and as such impeachment helps the jury to evaluate credibility.

Sturdevant v. State, 49 Wis.2d 142 (1970)

1)  Mental impairment alone is insufficient to affect credibility.

STANDARD JURY INSTRUCTIONS 

     While case law gives us guiding principles, the "nuts and bolts" of what the fact finder looks for is best set forth in the standard jury instructions, criminal and civil.  The fact finder should consider:

1)  Whether the witnesses has an interest or lack of interest in the result of the trial.

2)  The witness's conduct, appearance and demeanor on the witness stand.

3)  The clearness or lack of clearness of the witness's recollections.

4)  The opportunity the witness had to observe and know the matters the witness testifies about.

5)  The reasonableness of the witness's testimony.

6)  The apparent intelligence of the witness.

7)  Bias or any if any is shown.

8)  Possible motives for falsifying testimony.

9)  All other facts and circumstances during the trial that tend to support or discredit the testimony.

     These nine factors can be summed in six words:  common sense and experience in life.

     There is no magic involved.

CONCLUSION

     In the final analysis, the determination of the credibility of witnesses and the weight of the evidence is solely within the province of the fact finder be it the trial court or the jury.