Wisconsin Motion for Order Compelling Discovery

Introduction

Key Things to Know

1. 1

   A Wisconsin motion for an order compelling discovery is brought under Wis. Stat. 804.12(1)(a), and the first thing to check is whether what you served was inside the statutory limits. 804.08(1)(am) allows a reasonable number of requests, not to exceed 25 interrogatories, including all subparts. 804.045 allows a reasonable number of depositions, not to exceed 10, none over 7 hours. 804.09(2)(a)3. limits a production request to a reasonable time period, not to exceed 5 years prior to the accrual of the cause of action. Each departs upward only by stipulation or by court order in a manner consistent with the proportionality provision at 804.01(2).

2. 2

   Wisconsin uses its own section numbers and none of them track the familiar federal ones, so cite carefully. Depositions are 804.05 and 804.06, interrogatories 804.08, production and inspection 804.09, requests for admission 804.11, and the compel statute itself is 804.12, captioned Failure to make discovery; sanctions. 804.12(1)(a) names the devices it reaches: a deponent who fails to answer under 804.05 or 804.06, an entity that fails to designate under 804.05(2)(e) or 804.06(1), a party who fails to answer an 804.08 interrogatory, and a party who fails to produce or to permit an 804.09 inspection. 804.11 is not on that list.

3. 3

   Nothing has to be filed with the motion and nothing has to happen before it. 804.12(1) provides that a party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery. That is the whole of the precondition: no certificate, no itemized statement, no conference. One procedural convenience goes with it. 804.12(5), captioned Telephone hearings, provides that motions under the section may be heard as prescribed in s. 807.13, and the Judicial Council Note of 1988 printed with the statute records that the subsection was created to allow discovery motions to be heard by telephone conference.

4. 4

   804.12(1)(c)1. is mandatory and narrower than its federal relative in two ways worth knowing before you spend money. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising that conduct, or both, to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney fees, unless the opposition to the motion was substantially justified or other circumstances make an award unjust. There are only those two ways out, and the subdivision has no clause firing the award where the material simply arrives after the motion was filed. 804.12(1)(c)2. runs the same shall against a losing movant, and (c)3. lets the court apportion on a split result.

5. 5

   Electronically stored information has its own regime and it names this motion. 804.01(2)(e)1g. says a party need not provide four categories of such information absent a showing of substantial need and good cause, subject to a proportionality assessment: data that cannot be retrieved without substantial additional programming or transformation, backup data substantially duplicative of data more accessible elsewhere, legacy data from obsolete systems that is unintelligible on successor systems, and other data not available in the ordinary course of business that the producing party identifies as not reasonably accessible. The same provision then allocates the burden: in response to a motion to compel discovery, the party from whom discovery is sought is required to show that the information is not reasonably accessible because of undue burden or cost, and if that showing is made the court may order discovery only if the requesting party shows good cause.

6. 6

   One conference is required in Wisconsin, and it happens before the request rather than before the motion. 804.01(2)(e)1r. provides that no party may serve a request to produce or inspect under 804.09 seeking electronically stored information, or respond to an 804.08(3) interrogatory by producing such information, until after the parties confer about the subjects on which such discovery may be needed and when it should be completed, preservation pending discovery, and the form or forms in which it shall be produced, unless excused by the court. Running the other way, 804.12(4m) prohibits sanctions outright: absent exceptional circumstances a court may not impose sanctions under these rules for failing to provide such information lost as a result of the routine, good-faith operation of an electronic information system.

7. 7

   Two timing facts and one disclosure. The response period is 30 days from service of the request under 804.08(1)(b), 804.09(2)(b)1. and 804.11(1)(b), except that a defendant gets 45 days measured from service of the summons and complaint on that defendant, across all three written devices. No Wisconsin statute sets a period within which this motion must be brought, and 802.10(3) makes a scheduling order permissive, so a case may carry no discovery deadline unless someone asks for one. Separately, 804.01(2)(bg) requires a party, without awaiting a discovery request, to provide any agreement under which a person other than a contingent-fee attorney has a right to compensation contingent on and sourced from the proceeds of the action.

Wisconsin Requirements for Motion to Compel

• Your Interrogatory and Deposition Counts Against the Act 235 Limits

  Wis. Stat. 804.08(1)(am) limits a party, unless otherwise stipulated or ordered by the court in a manner consistent with s. 804.01(2), to a reasonable number of requests, not to exceed 25 interrogatories, including all subparts. Wis. Stat. 804.045 limits a party on the same terms to a reasonable number of depositions, not to exceed 10 depositions, none of which may exceed 7 hours in duration. Record both counts, and note that the number is a ceiling while reasonableness is an independent limit underneath it, so being under the figure is not the end of the question.

• How Far Back a Production Request Reaches, and What Is Exempt

  Wis. Stat. 804.09(2)(a)3. limits a production request, unless otherwise stipulated or ordered consistent with s. 804.01(2), to a reasonable time period, not to exceed 5 years prior to the accrual of the cause of action. The measuring point is accrual, not the date of service or filing. The same subdivision exempts requests for patient health care records as defined in s. 146.81(4), vocational records, educational records, and any other similar records from that limitation entirely.

• Which Device You Served, Because 804.12(1)(a) Does Not Reach All of Them

  804.12(1)(a) names a deponent who fails to answer under 804.05 or 804.06, an entity that fails to make a designation under 804.05(2)(e) or 804.06(1), a party who fails to answer an 804.08 interrogatory, and a party who fails to produce documents or to respond that an 804.09 inspection will be permitted or fails to permit it. Section 804.11 is not among them, so a bad answer to a request for admission goes to 804.11(1)(c) instead, and an unanswered one is admitted by the clock. 804.12(1)(b) supplies the ground where paper did arrive: an evasive or incomplete answer is to be treated as a failure to answer.

• Whether the Electronic-Records Conference Happened Before the Request

  Wis. Stat. 804.01(2)(e)1r. provides that no party may serve a request to produce or inspect under 804.09 seeking electronically stored information, or respond to an 804.08(3) interrogatory by producing such information, until after the parties confer about the subjects on which it may be needed and when that discovery should be completed, preservation pending discovery, and the form or forms of production, unless excused by the court. Record the date. A request served before that discussion is premature, and the exit is a court excusal rather than the other side's agreement.

• The Not-Reasonably-Accessible Showing, and Your Good Cause

  804.01(2)(e)1g. lists four categories a party need not provide absent substantial need and good cause, subject to a proportionality assessment, and then allocates the burden on this motion in terms: 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, and if that showing is made the court may order discovery from such sources only if the requesting party shows good cause. Note that the fourth category requires the producing party to have identified the data as not reasonably accessible, so an objection that never did has not engaged it.

• Proof That the Response Period Had Run

  804.08(1)(b) gives 30 days after service of the interrogatories, except 45 days after service of the summons and complaint where the responding party is a defendant. 804.09(2)(b)1. carries the same pair for a production request, and 804.11(1)(b) gives 30 days on a request for admission with a 45-day floor for a defendant. Each names the court, and only the court, as able to allow a shorter or longer time. No Wisconsin statute sets a period within which this motion must be brought; a scheduling order under 802.10(3) is permissive, so a case may carry no discovery cutoff unless someone asks for one.

• Whether Any Unrequested Disclosure Is Outstanding

  Wis. Stat. 804.01(2)(bg) requires a party, except as otherwise stipulated or ordered by the court and without awaiting a discovery request, to 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. Because the duty runs without a request, a failure to comply is a failure to make discovery and 804.12(1) is the application.

• The Expenses Request, and the Two Findings That Cut Both Ways

  804.12(1)(c)1. provides that if the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney fees, unless the opposition to the motion was substantially justified or other circumstances make an award of expenses unjust. (c)2. runs the same shall against a losing movant on the same two findings, and (c)3. lets the court apportion where the motion is granted in part and denied in part. Note that the granted limb has no clause firing the award where the material simply arrives after the motion was filed, so file on the items you can win.