Our state Legislature recently instituted several substantive changes to the rules of civil procedure governing discovery that all practitioners need to be aware of, regardless of practice area.

With the enactment on April 3, 2018, of 2017 Act 235, the Legislature chose not to allow for full vetting of the proposed rule changes by the Wisconsin Judicial Council – which, over the past 60 years, played a central role in developing Wisconsin’s Rules of Civil Procedure and Evidence.

Despite the intention of the Legislature to adopt procedural rules modeled after the Federal Rules of Civil Procedure (FRCP), there remain differences that the Judicial Council should have been asked to advise on to allow for a smoother transition that would have benefited lawyers and judges alike.

While numerous revisions were made to the rules, this article focuses on the scope of discovery, how it has been redefined, and the potential that it will generate a new upsurge of litigation over discovery matters due to the deviation from the old standards.

A Dramatic Change in the Practice of Civil Law

Effective July 1, 2018, Wis. Stat. section 804.01 (2)(a) will allow parties to seek discovery as follows:

“Parties may obtain discovery regarding any non-privileged 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 of outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.”

Of note, the familiar language that allowed for discovery of information if it was “reasonably calculated to lead to discovery of admissible evidence” has been removed from the statute.

The Legislature also decided to inject the concept of “proportional to the needs of the case” into every request for discovery.

These are only a few of the substantive changes to our discovery rules that will likely plague litigants, attorneys, and the courts with an abundance of discussion, debate, and – ultimately – litigation over the meaning of these changes, and whether they were meant to create a substantial difference in how civil discovery is to be conducted in the Wisconsin courts.

Road Blocks

From a practical standpoint, it appears that these rule changes have allowed for the construction of a number of road blocks to discovery.

While the promoters of the rule changes were concerned about the burdens of excessive discovery, an equal amount of concern should have also been directed toward those parties who seek reasonable discovery but encounter obstructionist tactics that make discovery more difficult and expensive than it should be.

‘Relevant’ Matters

These rule changes may provide fuel for those obstructionist tactics. For example, since we lost the safety net of allowing discovery of information that “appears reasonably calculated to lead to discovery of admissible evidence,” can a party now only pursue discovery of information that is “relevant”? Does a blanket request for 10 years of medical records from a personal injury plaintiff clearly seek “relevant” information? Does a request for accident reports of prior falls or injuries on a stair case of a public building clearly fall within the definition of “relevant” matters?

While such requests were common under the old rule, now they may only be appropriate if the requesting party can establish that they seek “relevant” information. This may be construed as a much higher hurdle to overcome than what existed under the old rule.

On the other hand, perhaps due to institutional inertia, parties and the courts may express a tendency to think of the new rule under the analysis applied to the old. In review of federal cases following the adoption of the 2015 amendments to the FRCP, federal courts have reminded parties that relevance in the discovery setting remains broadly construed to encompass issues that reasonably could lead to other matter that has bearing on a party’s claim or defense.¹

If Wisconsin courts follow that logic, as is usually the case where state procedural rules are patterned after federal rules,² then “relevance” under the new rule will be defined to include information that is “reasonably calculated to lead to the discovery of admissible evidence,” putting us right back to where we have been under the old rule.

Proportionality: Undeveloped in Wisconsin

In addition to relevance, practitioners need to consider how “proportionality” within discovery might breed additional controversy, debate, and litigation. While that concept has been utilized in the Federal Rules of Civil Procedure, it remains generally undeveloped in Wisconsin jurisprudence. As such, it remains to be seen how Wisconsin courts will interpret that concept.

Under the new rules, who will bear the burden of establishing that discovery is relevant and proportional to the needs of the case? It appears that the requesting party will continue to bear the burden of establishing relevance and the objecting party will bear the burden of establishing that discovery is disproportional or improper.³ It is also likely that boilerplate objections that discovery is not relevant or proportionate will be insufficient to satisfy opposing counsel or the courts.

In practice, either the parties are going to have to agree or the courts are going to have to rule on these matters until enough practical experience and precedential court guidance has been developed.

Weighing the Listed Factors

In dealing with this concept of proportionality, lawyers and courts will also have to determine what the listed factors mean and how they will be weighed or considered against each other.

In that regard, here are some considerations to make when assessing the effect of proportionality on Wisconsin discovery law:

The Importance of the Issues at Stake in the Action
What are the “stakes” and who determines the “importance of the issues”? Are monetary stakes the only factor? What are the other factors to be balanced with monetary stakes? What about philosophical or social principles? How will they be weighed or considered?

The Amount in Controversy
What happens if the cost of the proposed discovery exceeds the amount in controversy? If this question arises in a low money damages case, will the court feel inclined to limit discovery? If so, since when is justice “proportional” to the money at stake? As some members of the legal community have already suggested, this is a dangerous concept by which to limit discovery. Also, what about actions seeking equitable relief, injunctive relief, or declaratory relief?

The Parties’ Relative Access to Relative Information
This rule marks an appropriate consideration when weighting the equities of discovery. It is not uncommon that in certain types of litigation, the burden of responding to discovery is heavier on the party who has the most information.

The Parties’ Resources
Will the courts allow for more discovery requests from a wealthy party, but limit discovery from a financially weak party? This criterion may well disadvantage large corporations, insurance companies, and governmental bodies and should give such organizations pause.

The Importance of the Discovery in Resolving the Issues
Who will decide the “importance” of the requested discovery in resolving the ultimate issues in the case? If important, will discovery be allowed even if the cost is considerable or the amount in controversy is small?

Whether the Burden or Expense of the Proposed Discovery Outweighs its Likely Benefit
An argument could be made that all discovery is inherently burdensome. So, who will decide whether that burden is unduly light or harsh given the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources and the importance of discovery in resolving the issues?

Establishing Precedent

Given the novelty of these changes in the discovery rules, parties should be encouraged to cooperate in working out disputes. If the parties fail to agree – which is to be expected when changes are made to fundamental definitions and rules – the courts will have to rule on their disputes until enough practical experience and precedential court guidance has been created.

If confronted with a challenge based on relevance and proportionality, consider, as a starting point, looking to the decisions of the federal courts. While these new Wisconsin rules do not completely adopt the federal rules, some rules are the same – such as the proportionality rule – so you should argue that it is subject to federal gloss.

Tossing Aside 40 Years of Guidance

The point of this discussion is not that these rule changes are necessarily bad or unsuited to Wisconsin practice.

The point is that these changes were brought forth by a Legislature that appeared determined to proverbially fix something that was not broken. The prior version of section 804.01(2)(a) existed for more than four decades, allowing for an abundance of practical experience, circuit court rulings, and appellate court decisions that gave guidance and direction to lawyers in conducting discovery in civil cases in Wisconsin.

The fact that our Legislature chose to enact these changes without proper vetting by the Wisconsin Judicial Council now means that the vetting will have to take place within the civil lawsuits filed after July 1.

One thing is for certain: these substantive changes in section 804.01(2)(a) will dramatically change the practice of civil law in Wisconsin until each criterion is scrutinized and evaluated by litigants and our court system.

Endnotes

¹ See, e.g., Murillo v. Kohl’s Corp., No. 16-CV-196-JPS, 2016 WL 4705550, at *2 (E.D. Wis. Sept. 8, 2016).

² See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶2 n. 2, 241 Wis. 2d 804, 623 N.W.2d 751.

³ See, e.g.,Murillo, 2016 WL 4705550, at *2-3.