Depositions and Discovery

In the matter of the Petition to Amend Wisconsin Statute § 887.24.

ORDER 13-16

On November 15, 2013, Attorney April M. Southwick filed a petition on behalf of the Wisconsin Judicial Council requesting that the court repeal Wis. Stat. § 887.24 and replace it with the Uniform Interstate Depositions and Discovery Act, as amended to comport with Wisconsin law.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on Monday, September 29, 2014, at 9:45 a.m.

IT IS FURTHER ORDERED that the court’s conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 3rd day of July, 2014.

By the Court:

Diane M. Fremgen, Clerk of Supreme Court

Petition 13-16

The Wisconsin Judicial Council respectfully petitions the Wisconsin Supreme Court to amend Wis. Stat. § 887.24. This petition is directed to the Supreme Court’s rule-making authority under Wis. Stat.. § 751.12.

The Judicial Council respectfully requests that the Supreme Court adopt the following rule:

SECTION 1. 887.24 of the statutes is repealed:

887.24. Deposition; for use in other states.

Any witness may be subpoenaed and compelled to attend and give the witness’s deposition before any person authorized to take depositions in this state, or before any commissioner appointed under the authority of any other state, territory or country, or any court thereof, in any action, cause or proceeding pending in such other state, territory or country; provided, its laws contain provisions similar to this section, requiring persons within its borders to give their testimony by deposition in actions pending in Wisconsin.

SECTION 2. 887.24 is recreated as follows:

887.24. Depositions and discovery; for use in other states.

(1) Short title. This section may be cited as the Uniform Interstate Depositions and Discovery Act.

(2) Definitions. In this section:

(a) “Foreign jurisdiction” means a state other than Wisconsin.

(b) “Foreign subpoena” means a subpoena issued in a civil action under authority of a court of record of a foreign jurisdiction.

(c) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

(d) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(e) “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to do any of the following:

1. Attend and give testimony at a deposition, either oral or upon written questions.

2. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person.

3. Permit inspection of premises under the control of the person.

Judicial Council Committee Note:

The definition of “Foreign subpoena” was modified to add the phrase “in a civil action.” This language was added to clarify that this act only applies to civil cases.

The definition of “Subpoena” was modified to make it expressly applicable to subpoenas not only for oral depositions, but those upon written questions as permitted by Wis. Stat. § 804.06.

The definition of “State” was modified to include federally recognized Indian tribes.

Uniform Comment:

This Act is limited to discovery in state courts, the District of Columbia, Puerto Rico, the United States Virgin Islands, and the territories [or insular possessions] of the United States. The committee decided not to extend this Act to include foreign countries including the Canadian provinces. The committee felt that international litigation is sufficiently different and is governed by different principles, so that discovery issues in that arena should be governed by a separate act.

The term “Subpoena” includes a subpoena duces tecum. The description of a subpoena in the Act is based on the language of Rule 45 of the FRCP.

The term “Subpoena” does not include a subpoena for the inspection of a person (subsection (3)(C) is limited to inspection of premises) [sic]. Medical examinations in a personal injury case, for example, are separately controlled by state discovery rules (the corresponding federal rule is Rule 35 of the FRCP). Since the plaintiff is already subject to the jurisdiction of the trial state, a subpoena is never necessary.

(3) Request for issuance of subpoena. (a) Submission of foreign subpoena to clerk. To request issuance of a subpoena under this section, a party may submit a foreign subpoena to a clerk of the circuit court for the county in which discovery is sought to be conducted in this state, accompanied by the appropriate Wisconsin subpoena form which shall:

1. List the Wisconsin county in which discovery is to be conducted as the court from which the subpoena is issued.

2. Use the title of the action and its docket number from the foreign jurisdiction.

3. Incorporate the terms used in the foreign subpoena and include a copy of the foreign subpoena as an attachment.

4. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

5. Advise the person to whom the subpoena is directed that such a person has a right to petition the Wisconsin circuit court for a protective order to quash or modify the subpoena or provide other relief under Wis. Stat. § 805.07 (3).

(b) Duties of clerk of court. When a party submits a foreign subpoena to a clerk of circuit court in this state in compliance with par. (a), the clerk shall promptly sign and issue a subpoena for service upon the person to which the foreign subpoena is directed.

(c) Issuance by an attorney. Alternatively, a party may retain an attorney who is licensed or otherwise authorized to practice law in Wisconsin to issue and sign the subpoena as an officer of the court pursuant to Wis. Stat. § 805.07.               

(d) Appearance. Obtaining and completing a subpoena under this subsection does not constitute an appearance in the courts of this state.

Judicial Council Committee Note:

The committee added the term “circuit” to subsections (a) and (b) to clarify that the circuit court has jurisdiction of issuing subpoenas under this act.

Paragraph (a) (1)-(5) was added to clarify the procedure for obtaining a Wisconsin subpoena to obtain discovery from a witness in this state for use in a proceeding pending in another jurisdiction. For the benefit of the party seeking the subpoena and the court issuing it, the procedure is designed to be simple and expeditious. It is also the intent of the committee to minimize the burden on the clerk of circuit court. It also includes a requirement that the subpoena state on its face that a receiving person has the right to object to the subpoena. This protection is contained in Wis. Stat. § 805.07 (3).

Paragraph (c) contains an important addition to the Uniform Rule. It provides that if a party to the out-of-state proceeding retains an attorney licensed to practice in Wisconsin, and that attorney receives the original or a true copy of the out-of-state subpoena, the attorney may issue the subpoena. This is consistent with s. 805.07 (1) which permits a subpoena to be issued by, among others, an attorney of record of any party in a civil action or special proceeding.

The committee envisions the standard procedure under this section will become as follows, using as an example a case filed in Kansas (the trial state) where the witness to be deposed lives in Wisconsin (the discovery state): A lawyer of record for a party in the action pending in Kansas will issue a subpoena in Kansas (the same way lawyers in Kansas routinely issue subpoenas in pending actions). That lawyer may then check with the clerk’s office, in the Wisconsin county in which the witness to be deposed lives, to obtain a copy of its subpoena form. The lawyer will then prepare a Wisconsin subpoena so that it has the same terms as the Kansas subpoena. The lawyer will then submit the completed and executed Kansas subpoena and the completed but not yet executed Wisconsin subpoena to the clerk’s office in Wisconsin. In addition, the lawyer might prepare a short transmittal letter to accompany the Kansas subpoena, advising the clerk that the Wisconsin subpoena is being sought pursuant to Wis. Stat. § 887.24 (3). The clerk of court, upon being given the Kansas subpoena, will then issue the identical Wisconsin subpoena (“issue” includes verifying that the subpoena complies with s. 887.24 (3) (a) and signing it).

The process server (or other agent of the party) will then serve the Wisconsin subpoena on the deponent in accordance with Wisconsin law.

Uniform Comment

The term “Court of Record” was chosen to exclude non-court of record proceedings from the ambit of the Act. The committee concluded that extending the Act to such proceedings as arbitrations would be a significant expansion that might generate resistance to the Act. A “Court of Record” includes anyone who is authorized to issue a subpoena under the laws of that state, which usually includes an attorney of record for a party in the proceeding.

The term “Presented”¹ to a clerk of court includes delivering to or filing. Presenting a subpoena to the clerk of court in the discovery state, so that a subpoena is then issued in the name of the discovery state, is the necessary act that invokes the jurisdiction of the discovery state, which in turn makes the newly issued subpoena both enforceable and challengeable in the discovery state.

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The advantages of this process are readily apparent. The act of the clerk of court is ministerial, yet is sufficient to invoke the jurisdiction of the discovery state over the deponent. The only documents that need to be presented to the clerk of court in the discovery state are the subpoena issued in the trial state and the draft subpoena of the discovery state. There is no need to hire local counsel to have the subpoena issued in the discovery state, and there is no need to present the matter to a judge in the discovery state before the subpoena can be issued. In effect, the clerk of court in the discovery state simply reissues the subpoena of the trial state, and the new subpoena is then served on the deponent in accordance with the laws of the discovery state. The process is simple and efficient, costs are kept to a minimum, and local counsel and judicial participation are unnecessary to have the subpoena issued and served in the discovery state.

This Act will not change or repeal the law in those states that still require a commission or letters rogatory to take a deposition in a foreign jurisdiction. The Act does, however, repeal the law in those discovery states that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states. It is the hope of the Conference that this Act will encourage states that still require the use of commissions or letters rogatory to repeal those laws.

The Act requires that, when the subpoena is served, it contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and of any party not represented by counsel. The committee believes that this requirement imposes no significant burden on the lawyer issuing the subpoena, given that the lawyer already has the obligation to send a notice of deposition to every counsel of record and any unrepresented parties. The benefits in the discovery state, by contrast, are significant. This requirement makes it easy for the deponent (or, as will frequently be the case, the deponent’s lawyer) to learn the names of and contact the other lawyers in the case. This requirement can easily be met, since the subpoena will contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and of any party not represented by counsel (which is the same information that will ordinarily be contained on a notice of deposition and proof of service).

(4) Service and enforcement of subpoena. A subpoena issued under sub. (3) must be served and enforced in compliance with ch. 885. In issuing the subpoena, the clerk of circuit court shall not create a file, and shall not collect a fee. Instead, the individual responsible for service shall deliver a certificate of service or affidavit to the party that requested the subpoena. The party must retain the certificate of service or affidavit and furnish a copy to any party or to the deponent upon request.

Judicial Council Committee Note:

Subsection 4 is similar to the Uniform Act; however it clarifies that it applies not only to a subpoena issued by a clerk of circuit court, but also to a subpoena issued by local counsel.

The Wisconsin clerk of circuit court will not create a file when discovery is initiated nor collect a fee. This rule places the obligation of retaining the original subpoena and the proof of service on the lawyer initiating the discovery. A file will be created if a special proceeding is commenced to enforce, quash, or modify the subpoena.

Subsection 4 was also modified to substitute the term “party” in place of the term “attorney” to extend the rule to pro se parties.

(5) Deposition, production, and inspection. When a subpoena issued under this section commands a person to attend and give testimony at a deposition, produce designated books, documents, records, electronically stored information, or tangible items, or permit inspection of premises, the time and place and the manner of the taking of the deposition, the production, or the inspection must comply with Wisconsin’s rules relating to discovery, including but not limited to ch. 804.

Uniform Comment

The Act requires that the discovery permitted by this section must comply with the laws of the discovery state. The discovery state has a significant interest in these cases in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery request. Therefore, the committee believes that the discovery procedure must be the same as it would be if the case had originally been filed in the discovery state.

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(6) Application to court. (a) Special proceedings. An application to the circuit court for a protective order or to enforce, quash, or modify a subpoena issued under this section will commence a special proceeding. Applications and all other filings in the special proceeding must comply with the applicable rules or statutes of this state, including service pursuant to s. 801.14 (2), and must be filed with the circuit court in the county in which discovery is to be conducted. Applications to enforce a subpoena must include proof of service of the subpoena.

(b) Fees; assignment of case number. 1. On filing an application under this section, a petitioner shall pay a fee as specified in ch. 814.

2. The circuit court in which the application is filed shall assign it a case number.

(c) Reasonable attorney’s fees and expenses. The court in its discretion may award any prevailing party its reasonable attorney’s fees and expenses.

(d) Appeals. A final order granting, denying, or otherwise resolving an application under this subsection is a final order for purposes of filing an appeal in accordance with s. 808.03 (1).

Judicial Council Committee Note:

Paragraph (a) was modified to clarify that every filing in the special proceeding must also be served on all parties to the special proceeding, including the witness. A summons is unnecessary to initiate the action and service by mail or facsimile is permitted pursuant to s. 801.14 (2). Applications to enforce a subpoena must include proof of service of the subpoena on the witness.

Paragraph (b) is added to clarify procedural details for resolution of a dispute relating to discovery under this section.

Paragraph (c) is added to address the award of fees and expenses in a dispute relating to discovery under this section.

Paragraph (d) is added to clarify the procedure for reviewing a decision of a circuit court on a dispute arising in connection with discovery under this article.

Uniform Comment

The act requires that any application to the court for a protective order, or to enforce, quash, or modify a subpoena, or for any other dispute relating to discovery under this Act, must comply with the law of the discovery state. Those laws include the discovery state’s procedural, evidentiary, and conflict of laws rules. Again, the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests, and this is easily accomplished by requiring that any discovery motions must be decided under the laws of the discovery state. This protects the deponent by requiring that all applications to the court that directly affect the deponent must be made in the discovery state.

The term “modify” a subpoena means to alter the terms of a subpoena, such as the date, time, or location of a deposition.

Evidentiary issues that may arise, such as objections based on grounds such as relevance or privilege, are best decided in the discovery state under the laws of the discovery state (including its conflict of laws principles).

Nothing in this act limits any party from applying for appropriate relief in the trial state. Applications to the court that affect only the parties to the action can be made in the trial state. For example, any party can apply for an order in the trial state to bar the deposition of the out-of-state deponent on grounds of relevance, and that motion would be made and ruled on before the deposition subpoena is ever presented to the clerk of court in the discovery state.

If a party makes or responds to an application to enforce, quash, or modify a subpoena in the discovery state, the lawyer making or responding to the application must comply with the discovery state’s rules governing lawyers appearing in its courts. This act does not change existing state rules governing out-of-state lawyers appearing in its courts. (See Model Rule 5.5 and state rules governing the unauthorized practice of law.)

(7) Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

(8) Application to pending actions. This section applies to requests for discovery in cases pending on or filed after January 1, 2015.

Judicial Council Committee Note:

This subsection is the same as Section 8 of the Uniform Act, except “or filed after” is inserted to improve clarity.

The Wisconsin Judicial Council respectfully requests that the Court publish the Judicial Council Committee Notes and Uniform Notes to proposed Wis. Stat. § 887.24.

Conclusion

The recommended rule is a slightly modified version of the Uniform Interstate Depositions and Discovery Act (UIDDA) drafted by the Uniform Law Commission and adopted in 2007.

For the reasons set forth in the supporting memorandum accompanying this petition, the Wisconsin Judicial Council respectfully urges this Court to amend Wis. Stat. § 887.24.

Respectfully submitted,

April M. Southwick, Wisconsin Judicial Council

¹Note that neither the Uniform Interstate Deposition and Discovery Act nor proposed Wis. Stat. § 887.24 use the term “presented.” Both rules use the term “submit,” but the Judicial Council drafting committee considers the terms synonymous in this context.

Victim Privacy Concerns

In the matter of the Petition to Create Wisconsin Statute § (RULE) 809.86.

ORDER 14-01

On January 21, 2014, Attorney April M. Southwick filed a rule petition on behalf of the Wisconsin Judicial Council asking the court to create Wis. Stat. § (Rule) 809.86. The proposed rule is intended to address victim privacy concerns that result from public access to searchable documents posted on the supreme court and court of appeals website. It requires the use of initials or other appropriate pseudonyms to protect the identity of certain victims in appellate briefs and in appellate court decisions.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on Monday, September 22, 2014, at 9:45 a.m.

IT IS FURTHER ORDERED that the court’s conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 3rd day of July, 2014.

By the Court:

Diane M. Fremgen, Clerk of Supreme Court

Petition 14-01

The Wisconsin Judicial Council respectfully petitions the Wisconsin Supreme Court to create Rule 809.86. This petition is directed to the Supreme Court’s rule-making authority under Wis. Stat.. § 751.12.

The Judicial Council respectfully requests that the Supreme Court adopt the following rule:

SECTION 1. 809.86 is created as follows:

809.86. Identification of victims and others in briefing and decisions. (1) Applicability. This section applies to appeals in the following types of cases:

(a) Section 971.17 proceedings.

(b) Criminal cases.

(c) Ch. 938 cases.

(d) Ch. 980 cases.

(e) Certiorari review of decisions or orders entered by the department of corrections, the department of health services or the parole commission in a proceeding or case specified in pars. (a)-(d) of this subsection.

(f) Collateral challenges to judgments or orders entered in a proceeding or case specified in pars. (a)-(e) of this subsection.

(2) Definition. In this section, “victim” means a natural person against whom a crime, other than a homicide, has been committed or alleged to have been committed in the appeal or proceeding. “Victim” does not include the person convicted of or alleged to have committed a crime at issue in the appeal or proceeding.

(3) Opinion And Briefs. In an appeal specified under sub. (1), the opinion or decision of the supreme court and court of appeals and the briefs of the parties shall not identify a victim by any part of his or her name but may identify a victim by one or more initials or other appropriate pseudonym.

(4) Protective Order. For good cause, the court may make any order necessary to protect the identity of a victim or other person, or to excuse compliance with this section.

Judicial Council Note:

Proposed s. 809.86 addresses victim privacy concerns that result from public access to searchable documents posted on the Wisconsin Supreme Court and Court of Appeals access website. The proposed rule is intended to protect victims’ constitutional and statutory rights to be treated with fairness, dignity, courtesy, sensitivity, and respect for their privacy. See Wisconsin Constitution Art. I, § 9m; Wis. Stat. § 950.01. Specifically, the rule protects the identity of victims in appellate briefs and in appellate judicial opinions that the courts make available online. The rule does not extend to other appellate filings, including appendices, because these documents are not currently posted electronically.

The proposed rule is not a rule of confidentiality or privilege. It is not intended to limit a defendant’s right to a public trial, to limit the availability of any potential appellate argument or remedy, or to affect laws regarding public records or open court records that are available in the clerks of courts offices.

The rule is intended to address only matters in which the state has alleged or proved that a party in the appeal or proceeding has committed criminal conduct against one or more victims in the matter. Accordingly, sub. (1) is limited to matters in which victims of crime are most frequently referenced and identified as victims or alleged victims.

Subsection (2) provides a definition of a “victim” that includes an alleged victim. In some appeals, a party’s position will be that there was in fact no victimization, and nothing in this proposed rule is intended to limit arguments to that effect.

The privacy issues addressed by the rule do not extend to a deceased victim in the same manner. Therefore, subsection (2) permits the victim of a homicide to be recognized in an appellate opinion or brief.

Subsection (3) prohibits the use of any part of a victim or alleged victim’s name except initials. Subsection (3) does not prescribe or limit the use of other pseudonyms for victims, as long as they maintain sensitivity and respect for victims.

Subsection (4) allows an appellate court to make any necessary order to further protect the identity of victims or to protect the identity of other persons not otherwise covered by the rule. It also allows the court to excuse compliance with this section.

Conclusion

For the reasons set forth in the supporting memorandum accompanying this petition, the Wisconsin Judicial Council respectfully urges this Court to create Wis. Stat. § (Rule) 809.86.

Respectfully submitted,

April M. Southwick, Wisconsin Judicial Council