Thursday, August 30, 2012

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.
     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.
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).
     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.


  1. I have a question that may or may not be relevant.
    One thing I've discovered (pardon the pun) is that adjudication of Rules vary widely.
    In federal practice, Rule 30(e) permits review of testimony by a deponent prior to certification; provided the right to review is preserved on the record as part of the proceedings. The vehicle for doing so is the errata sheet.
    I've learned that in the Seventh Circuit's (where Wisconsin is) adjudication of Fed.R.Civ.P. 30(e)'s language, "changes in form or substance" literally permits changing "Yes" answers to "No," and vice versa.
    The Tenth, where I mainly practice, has a "sham affidavit" rule, where such errata sheets would be disregarded in toto.

    Q: Does the state practice in Wisconsin reflect the practice in the Seventh in this regard? That is, is a deponent bound by their testimony in a deposition?

    1. In 8 years spent in our Civil Division this issue has never arisen in my court.