Wisconsin Lawyer
Vol. 83, No. 8, August 2010
Code of Judicial Conduct Rules on Recusal
In the matter of amendment of the Code of Judicial Conduct’s rules on recusal. In the matter of amendment of Wis. Stat. § 757.19.
Orders 08-16, 08-25, 09-10, and 09-11
On June 20, 2008, the League of Women Voters of Wisconsin Education Fund filed a petition, which they amended on July 28, 2009, requesting that this court amend the Wisconsin Code of Judicial Conduct (Petition 08-16). On Sept. 30, 2008, and Oct. 16, 2009, the Wisconsin Realtors Association, Inc. and Wisconsin Manufacturers and Commerce, respectively, petitioned this court to amend the Code of Judicial Conduct (Petitions 08-25 and 09-10). On Oct. 26, 2009, Retired Justice William A. Bablitch filed a petition requesting the court to amend the recusal provisions under Wis. Stat. § 757.19 (Petition 09-11).
The court held a public hearing on the four petitions on Oct. 28, 2009. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendments, the court adopted petitions 08-25 and 09-10 and denied petitions 08-16 and 09-11 on a 4 to 3 vote. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks dissented.
On Nov. 24, 2009, the proponents of Petitions 08-25 and 09-10 advised the court of an inadvertent inconsistency in the language of their proposed rules. On Dec. 7, 2009, the court reconsidered the rules so that it could address this inconsistency, consider technical changes in wording, and add comments explaining the rules.
On Jan. 21, 2010, the court adopted Petitions 08-25 and 09-10, as revised, on a 4 to 3 vote. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks dissented.
IT IS ORDERED that petition 08-16 and petition 09-11 are denied.
IT IS FURTHER ORDERED that effective the date of this order:
SECTION 1. 60.04 (7) of the Supreme Court Rules is created to read:
60.04 (7) Effect of Campaign Contributions. A judge shall not be required to recuse himself or herself in a proceeding based solely on any endorsement or the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.
COMMENT: Wisconsin vigorously debated an elective judiciary during the formation and adoption of the Wisconsin Constitution in 1848. An elective judiciary was selected and has been part of the Wisconsin democratic tradition for more than 160 years.
Campaign contributions to judicial candidates are a fundamental component of judicial elections. Since 1974 the size of contributions has been limited by state statute. The limit on individual contributions to candidates for the supreme court was reduced from $10,000 to $1,000 in 2009 Wisconsin Act 89 after the 2009 supreme court election. The legislation also reduced the limit on contributions to supreme court candidates from political action committees, from $8,625 to $1,000.
The purpose of this rule is to make clear that the receipt of a lawful campaign contribution by a judicial candidate’s campaign committee does not, by itself, require the candidate to recuse himself or herself as a judge from a proceeding involving a contributor. An endorsement of the judge by a lawyer, other individual, or entity also does not, by itself, require a judge’s recusal from a proceeding involving the endorser. Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal.
Campaign contributions must be publicly reported. Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs the judge’s integrity. It would have the effect of discouraging “the broadest possible participation in financing campaigns by all citizens of the state” through voluntary contributions, see Wis. Stat. § 11.001, because it would deprive citizens who lawfully contribute to judicial campaigns, whether individually or through an organization, of access to the judges they help elect.
Involuntary recusal of judges has greater policy implications in the supreme court than in the circuit court and court of appeals. Litigants have a broad right to substitution of a judge in circuit court. When a judge withdraws following the filing of a substitution request, a new judge will be assigned. When a judge on the court of appeals withdraws from a case, a new judge also is assigned. When a justice of the supreme court withdraws from a case, however, the justice is not replaced. Thus, the recusal of a supreme court justice alters the number of justices reviewing a case as well as the composition of the court. These recusals affect the interests of non-litigants as well as non-contributors, inasmuch as supreme court decisions almost invariably have repercussions beyond the parties.
SECTION 2. 60.04 (8) of the Supreme Court Rules is created to read:
60.04 (8) Effect of Independent Communications. A judge shall not be required to recuse himself or herself in a proceeding where such recusal would be based solely on the sponsorship of an independent expenditure or issue advocacy communication (collectively, an “independent communication”) by an individual or entity involved in the proceeding or a donation to an organization that sponsors an independent communication by an individual or entity involved in the proceeding.
COMMENT: Independent expenditures and issue advocacy communications are different from campaign contributions to a judge’s campaign committee. Contributions are regulated by statute. They are often solicited by a judge’s campaign committee, and they must be accepted by the judge’s campaign committee. Contributions that are accepted may be returned. By contrast, neither a judge nor the judge’s campaign committee has any control of an independent expenditure or issue advocacy communication because these expenditures or communications must be completely independent of the judge’s campaign, as required by law, to retain their First Amendment protection.
A judge is not required to recuse himself or herself from a proceeding solely because an individual or entity involved in the proceeding has sponsored or donated to an independent communication. Any other result would permit the sponsor of an independent communication to dictate a judge’s non-participation in a case, by sponsoring an independent communication. Automatically disqualifying a judge because of an independent communication would disrupt the judge’s official duties and also have a chilling effect on protected speech.
SECTION 3. 60.06 (4) of the Supreme Court Rules is amended to read:
60.06 (4) Solicitation and Acceptance of Campaign Contributions. A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions. A candidate may, however, establish a committee to solicit and accept lawful campaign contributions. The committee is not prohibited from soliciting and accepting lawful campaign contributions from lawyers, other individuals, or entities even though the contributor may be involved in a proceeding in which the judge, candidate for judicial office, or judge-elect is likely to participate. A judge or, candidate for judicial office, or judge-elect may serve on the committee but should avoid direct involvement with the committee’s fundraising efforts. A judge or, candidate for judicial office, or judge-elect may appear at his or her own fundraising events. When the committee solicits or accepts a contribution, a judge or, candidate for judicial office, or judge-elect should also be mindful of the requirements of SCR 60.03 and 60.04(4); provided, however, that the receipt of a lawful campaign contribution shall not, by itself, warrant judicial recusal.
COMMENT: Under longstanding Wisconsin law, a judicial candidate may not personally solicit or accept campaign contributions. However, a judicial candidate may form and rely upon a campaign committee to solicit and accept contributions for the judicial campaign. Lawyers, other individuals, and entities are not excluded from this process merely because committee members or contributors may be involved in proceedings in which the judge is likely to participate.
The solicitation of contributions from participants in judicial proceedings is always a matter requiring close, careful attention. Campaign committees should be sensitive to the existence of pending litigation, the proximity of judicial elections, and the wording of campaign solicitations to avoid the appearance of promise or pressure.
A judge should avoid having his or her name listed on another’s fundraising solicitation even when the listing is accompanied with a disclaimer that the name is not listed for fundraising purposes.
Acknowledgement by a judge or candidate for judicial office of a contribution in a courtesy thank you letter is not prohibited.
IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rules 60.04 and 60.06 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 7th day of July, 2010.
BY THE COURT:
David R. Schanker, Clerk of Supreme Court
¶1 PATIENCE DRAKE ROGGENSACK, J. I write in support of SCR 60.04(7), the recusal rule recently enacted by the court, and to comment on Justice Bradley’s dissent to the rule. SCR 60.04(7) comports with the commands of the Wisconsin Constitution, the United States Constitution and our most recent discussion of the effect of political contributions on a justice’s participation, Donohoo v. Action Wisconsin, Inc., 2008 WI 110, 314 Wis. 2d 510, 754 N.W.2d 480. In contrast, Justice Bradley has chosen to espouse the politically correct position, which she supports with numerous comments from newspapers.
¶2 SCR 60.04(7) applies to judges and justices for whom the people of Wisconsin exercised their constitutional right to vote. Article III of the Wisconsin Constitution sets out a statement of the general right to vote in elections for Wisconsin public officers. It provides:
Electors. Section 1. Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.
¶3 The right to vote is well-grounded in Wisconsin law. It has long been understood that “[t]he right of a qualified elector to cast a ballot for the election of a public officer, which shall be free and equal, is one of the most important of the rights guaranteed to [the people] by the constitution.” State ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37 N.W.2d 473 (1949); see also McNally v. Tollander, 100 Wis. 2d 490, 501, 302 N.W.2d 440 (1981) (explaining that “[t]he right to vote is the principal means by which the consent of the governed, the abiding principal of our form of government, is obtained”).
¶4 Article I, Section 2 of the United States Constitution confers the general right to vote in federal elections. A federal constitutional right to vote in state elections is nowhere expressly mentioned in the United States Constitution. However, once franchise is granted in state elections, it becomes a right implicitly guaranteed by the United States Constitution. Dunn v. Blumstein, 405 U.S. 330 (1972) (concluding that Tennessee’s durational residence requirements violated citizens’ right to vote that is protected by the United States Constitution).
¶5 Supreme Court Justices who have commented on the protection the federal Constitution confers on voters in state elections have concluded that the First Amendment is the source for that federal right. Once established, that right is protected from unconstitutional infringement by the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966) (noting that “the right to vote is too precious, too fundamental to be so burdened or conditioned”).
¶6 The right to vote freely for candidates of one’s choice is the essence of a democratic society and, therefore, it may not be trammeled upon. Reynolds v. Sims, 377 U.S. 533, 555 (1964). The right to vote is a fundamental right that has been repeatedly analogized to “having a voice,” i.e., speech in an election. Clingman v. Beaver, 544 U.S. 581, 599 (2005).
¶7 As Justice William Brennan remarked:
The right to vote derives from the right of association that is at the core of the First Amendment, protected from state infringement by the Fourteenth Amendment.
Storer v. Brown, 415 U.S. 724, 756 (1974) (Brennan, J., dissenting) (citations omitted). Justice Brennan further explained, “the right to vote is ‘a fundamental political right, because [it is] preservative of all [other] rights.’” Id. (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)).
¶8 The right to vote is not simply a right to cast a ballot, but rather, it is the right to cast an effective vote. As the United States Supreme Court instructed in Williams v. Rhodes, 393 U.S. 23 (1968), the state law at issue placed burdens on two kinds of rights: The first was the right “to associate for the advancement of political beliefs, and the [second was the] right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Id. at 30.
¶9 In addition, money spent in the course of an election has long been held to be an element of speech. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978). As the United States Supreme Court has repeatedly explained, it finds “no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because [of] its source.” Id.
¶10 When the right to vote is burdened, “governmental action may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest.” Oregon v. Mitchell, 400 U.S. 112, 238 (1970).
¶11 We elect judges in Wisconsin; therefore, judicial recusal rules have the potential to impact the effectiveness of citizens’ votes cast for judges. Stated otherwise, when a judge is disqualified from participation, the votes of all who voted to elect that judge are cancelled for all issues presented by that case. Accordingly, recusal rules, such as SCR 60.04(7), must be narrowly tailored to meet a compelling state interest. See id.
¶12 This court was mindful of the obligations created by the state and federal constitutions as well as the public’s concern for the effect of money in judicial races, when it enacted SCR 60.04(7). The wording of the Supreme Court Rule accommodates those interests by providing that a judge is not required to recuse himself or herself “based solely on” a “lawful campaign contribution.” (Emphasis added.) The precision in SCR 60.04(7)’s language creates a rule that is narrowly tailored; yet, the rule does not limit recusal when a lawful contribution is combined with some objectionable action, such as a contribution made in exchange for a judge’s vote on an issue of interest to the contributor.
¶13 The text of SCR 60.04(7) is also consistent with our most recent consideration of a challenge to a justice’s participation based on that justice’s receipt of lawful campaign contributions from interested persons. See Donohoo, 314 Wis. 2d 510. In Donohoo, Attorney Donohoo filed a motion to disqualify Justice Butler based on Justice Butler’s receipt of $300 from an attorney representing Action Wisconsin, Inc., then known as Fair Wisconsin, Inc., and $1,225 from Action Wisconsin, Inc.’s board members. Id., ¶5. The contributions were made while Action Wisconsin, Inc.’s case was proceeding in this court. Id.
¶14 In denying Donohoo’s claim that Justice Butler was disqualified due to his receipt of contributions to his campaign, we quoted a statement from the Judicial Commission:
There is no case in Wisconsin or elsewhere that requires recusal of a judge or justice based solely on a contribution to a judicial campaign.
Id., ¶19 (emphasis added). The words, “based solely on,” when referring to lawful campaign contributions, which the court employed in SCR 60.04(7), mirror the wording of our reasoning in Donohoo. Even though SCR 60.04(7) was recently passed, it is not new law for Wisconsin. Rather, it codifies what we decided in Donohoo.1 Stated more completely, there was no allegation in Donohoo that anything was at issue other than lawful contributions made by contributors who had some involvement in the proceedings before the court. No quid pro quo was alleged.
¶15 Justice Bradley’s dissent is a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution. Her comment misses the serious legal purpose of SCR 60.04(7). As such, her comment misses the point that abridgement of indispensable First Amendment freedoms may flow from a recusal rule enacted without the understanding necessary to appreciate its effect on protected liberties. Justice Bradley has chosen to base her attack on popular political positions, which she supports with newspaper articles rather than with the legal tenets upon which legal writing customarily is based.
¶16 Justice Bradley’s attack is undeserved. All who voted in favor of creating SCR 60.04(7) knew that their votes would not be popular. However, the oath of judicial office, an oath that we all took, requires that we protect the United States Constitution and the Wisconsin Constitution, even when our decisions that do so are not popular.
¶17 I am authorized to state that Justices David T. Prosser, Annette Kingsland Ziegler and Michael J. Gableman join this statement in support of SCR 60.04(7).
¶18 ANN WALSH BRADLEY, J.
(dissenting). The concurrence attempts to justify the need for the rule change as preserving the right of Wisconsin citizens to vote. The voting rights cases it cites, however, are totally unrelated to the issue of judicial recusal. These cases address laws that regulate voting itself. For instance, they address the constitutionality of a poll tax, a run-off election procedure, and a law that fixes the minimum age of electors at 18.1
¶19 Judicial recusal is unrelated to casting a vote. No case cited by the concurrence equates the right to vote or the right to give financial support to a judicial candidate with the right to have a particular elected judge participate over a particular case or decide an individual “issue” of law.2
¶20 I view the voting rights concerns stated by the concurrence as a red herring. So do others.
¶21 After being subjected to unfavorable media reports and criticism from editorial boards across the state (see ¶16, infra), a member of the majority took the unprecedented step of writing guest editorials in several newspapers to explain the vote: “The protection of every voter’s First Amendment right to have his or her vote counted … was the driving force behind the decision.” See, e.g., Justice Patience Drake Roggensack, Guest Editorial, Rule Upheld First Amendment Rights of Voters, Wisconsin State Journal, Dec. 3, 2009.
¶22 In response to the voting rights argument, an editorial board has countered: “The issue isn’t the public’s ability to participate in the election of justices. Voters do that mostly by voting.” Editorial, Voters Are Not Fools, Milwaukee Journal Sentinel, Jan. 19, 2010. Rather, the editorial board asserted that at issue is the public perception of the judiciary: “The issue is whether Supreme Court justices [and other judges in the state] will be perceived as just your common ordinary politician …” affected by big money. Id.
¶23 Unlike the majority, I conclude that the purpose of a recusal rule is to maintain a fair, neutral, and impartial judiciary. A fundamental principle of our democracy is that judges must be perceived as beyond price.
¶24 When litigants go to court, they want a judge who will decide the case based on the facts and the law. They do not want the umpire calling balls and strikes before the game has begun. Yet under the majority’s new rules, which mark a substantial departure from our current practice, judges’ campaign committees and perhaps someday even judges themselves3 will be able to ask for and receive contributions from litigants before the trial has begun and before the judge makes a decision in their case.
¶25 How, one may ask, can such a thing happen in a state like Wisconsin which in the past has been heralded as an example of clean government?
¶26 The answer is that it can happen when a majority of the court adopts word-for-word the script of special interests that may want to sway the results of future judicial campaigns. It can happen when a majority of the court refuses to allow for study, discussion, or further input on the petitions. And, when it happens, it subverts the integrity of the court and undermines the public trust and confidence that judges will be impartial.
¶27 Make no mistake, the new rules passed by the majority signify a dramatic change to our judicial code of ethics.
I
¶28 It has been the long-standing practice in Wisconsin that committees were prohibited from knowingly soliciting or accepting contributions from litigants with a case pending before the court.4 The amended rule adopted by the majority on January 21, 2010, heads in the opposite direction. It provides that the candidate’s committee “is not prohibited from soliciting and accepting lawful campaign contributions from lawyers, other individuals, or entities even though the contributor may be involved in a proceeding in which the judge, candidate for judicial office, or judge-elect is likely to participate.” (Emphasis reflects new language adopted by the majority.)
¶29 It is not clear from the text of this amendment whether the term “individuals” includes litigants and whether the phrase “is likely to participate” includes participation in a case currently pending before the judge.5 Justice Prosser clarified at the January 21, 2010, open administrative conference that indeed the intent is to allow for the solicitation and receipt of a contribution from a litigant with a case currently pending before the judge.6
¶30 In a letter to the court, the Brennan Center for Justice7 forecasts the new reality for Wisconsin under the revised rules adopted by the majority. It predicts that the revisions “threaten to undermine public confidence in the impartiality of Wisconsin’s judiciary, which is, and has traditionally been, accountable to the law and the U.S. and Wisconsin Constitutions, not to special interests that inject millions of dollars into campaigns for judicial office in the Badger State.”
¶31 Additionally, it expresses concern that the revised rules may be in direct conflict with the United States Supreme Court’s recent ruling that due process requires a judge’s recusal “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2263-64 (2009).
¶32 There can be no doubt that the actions of the majority have substantially undermined the public trust and confidence in the judiciary’s impartiality. Yet, members of the majority appear to be unmoored from this reality. Instead they blame their critics, watchdog organizations, and the media for undermining the public’s confidence in the integrity of the courts.8
¶33 The perception that the majority’s new rules subvert the integrity of the court has been widely disseminated in editorials around the state:
• Racine Journal Times: “Supreme Court recusal rule is disgrace to state.” (November 2, 2009)
• Eau Claire Leader Telegram: “High court in session; bring your wallet.” (November 1, 2009)
• Appleton Post-Crescent: “Supreme Court rule robs public trust.” (November 9, 2009)
• Sheboygan Press: “Is justice for sale in Wisconsin?” (November 2, 2009)
• Capital Times: “Once again, big money wins.” (November 4, 2009)
• Oshkosh Northwestern: “Supreme Court fails to clean blemished image.” (October 30, 2009)
• Green Bay Press Gazette: “Big money always finds a loophole.” (November 5, 2009)
• Milwaukee Journal Sentinel: “A breach in reality. In a 4-3 vote, justices thumb their noses at the perception of connections between large campaign contributions and the court’s integrity, objectivity and credibility.” (October 29, 2009)
II
¶34 The public reaction may be related in part to the ramrod manner by which these rules were adopted. The concurrence does not attempt to justify the majority’s unprecedented actions – perhaps because there is no acceptable justification.
¶35 On October 28, 2009, the majority voted to adopt the petitions of the Wisconsin Manufacturers & Commerce (WMC)9 (09-10) and the Wisconsin Realtors Association, Inc. (the Realtors) (08-25), relating to campaign contributions and endorsements. The majority refused to allow for study, discussion, or further input. Instead, it voted to adopt the petitions verbatim – word-for-word as proposed by the special interest groups – without any comments.
Chief Justice Abrahamson (stating the question): “Those in favor of the … substitute motion,10 which is to adopt 8-25 and 9-10 verbatim, no comments, correct? And deny 8-16 and 9-11.11 I’ll call the roll. Ann Walsh Bradley?
Justice Bradley: No.
Chief Justice Abrahamson: Pat Crooks?
Justice Crooks: No.
Chief Justice Abrahamson: Dave Prosser?
Justice Prosser: Yes.
Chief Justice Abrahamson: Pat Roggensack?
Justice Roggensack: Yes.
Chief Justice Abrahamson: Annette Ziegler?
Justice Ziegler: Yes.
Chief Justice Abrahamson: Mike Gableman?
Justice Gableman: Yes.
Chief Justice Abrahamson: I would vote no. The ayes have it. It is adopted.
¶36 Probably much to the embarrassment of the majority which had just adopted the petitions verbatim, the court was advised by letter dated November 24, 2009, from counsel for WMC and the Realtors that there was a problem with adopting the two petitions word-for-word – the language in the petitions was inconsistent. “We write to note an inconsistency in the two rule petitions.”12
¶37 WMC and the Realtors proposed new language that would resolve the inconsistency. At an open administrative conference on January 21, 2010, the majority voted to adopt the amended language – again, word-for-word as proposed by WMC and the Realtors. And again, without allowing for any further study, discussion, or input.
¶38 At the January 21, 2010, conference, Justice Crooks renewed his request that there be further study of the petitions. He also requested to place a hold on the vote so that the court could get input from the other elected judges across this state who are also affected by these petitions but who had not received notice of the administrative hearing or conferences that addressed the petitions. The request for a hold was not honored. Instead, the majority raced past several off ramps to reach its desired destination of passing the petitions as proposed by the special interest groups.13
¶39 For the almost fifteen years that I have been on this court, there has never been a major rules petition that has been adopted without study, discussion, or further input.14 Never, until now.
¶40 It is unclear why the majority was in such a rush to pass these petitions. What is clear, however, is that without any study or discussion, and without input from elected judges at all levels across the state, we end up with rules that are not carefully worded and concepts that are not fully considered and tested.
¶41 That is why the Board of Governors of the State Bar of Wisconsin adopted a resolution requesting that the court submit the petitions for further study. That is likely why former Justices Wilcox, Geske, and Bablitch all supported a study, discussion, and further input on the petitions.15 In fact, former Justice Bablitch warned that passing the petitions of the special interest groups verbatim and without further study and discussion “was one of the worst things that [the court] could do.” Unfortunately for the institution of the court and the citizens of this state, the majority did not heed that warning.
III
¶42 We have long held that the adoption of a “strong code of ethics” is essential “to keep [our] own house in order so as to better assure the effective, fair and impartial administration of justice in our Wisconsin state courts.” In re Hon. Charles E. Kading, 70 Wis. 2d 508, 524-25, 235 N.W.2d 409 (1975).
¶43 Indeed, strong recusal rules that preserve the public confidence in the judiciary are all the more essential now in light of a case that was decided by the United States Supreme Court on the very day the majority voted to adopt its new rules. In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), the Court determined that federal campaign laws prohibiting corporate independent expenditures unconstitutionally burden a corporation’s right to political speech.
¶44 The Citizens United decision opens wide the potential floodgates of unlimited corporate campaign contributions in judicial elections. If campaign contributions are subject to less regulation (and therefore, more and more contributions are “lawful”), we should be adopting stronger standards for recusal rather than neutering our existing recusal rules.
¶45 I hope that those who have not yet had or taken the opportunity to weigh in on the issue of judicial recusal will do so now, and after further study consider petitioning the court for change. I urge the legislature to engage in further study of judicial recusal, as suggested by Justice Crooks in a recent letter to the Joint Legislative Council.16 If this court is unwilling or unable to keep its own house in order, perhaps it will require action by others to step in and assist in maintaining the integrity of the court and preserving the public trust and confidence that Wisconsin judges will be impartial.
¶46 Accordingly, I respectfully dissent.
¶47 I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice N. Patrick Crooks join this dissent.
Endnotes
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Electronic Discovery
In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07.
Order 09-01
On July 6, 2010, the Wisconsin Supreme Court issued an order adopting amendments relating to the discovery of electronically stored information. The amendments to Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07 are effective January 1, 2011, but are subject to revision following a public comment period and public hearing this fall. A copy of the court’s order dated July 6, 2010, is available on the Web site of the Wisconsin Supreme Court under http://wicourts.gov/supreme/sc_hearing_rules.jsp.
IT IS ORDERED that on Thursday, Sept. 30, 2010, at 9:30 a.m. in the Supreme Court Room in the State Capitol, Madison, Wis., the court will hold a public hearing and open administrative conference during which the court will review the amendments and any written comments that are filed following the issuance of this scheduling order.
IT IS FURTHER ORDERED that all comments shall be submitted in writing and are due by Aug. 31, 2010. Any comments shall be filed with the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701-1688, and emailed to clerk@wicourts.gov.
IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this scheduling order and of the court’s order dated July 6, 2010 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 6th day of July, 2010.
BY THE COURT:
David R. Schanker, Clerk of Supreme Court
Order of July 6, 2010
On April 23, 2009, the Wisconsin Judicial Council, by Staff Attorney April M. Southwick, petitioned this court for an order amending Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, relating to discovery of electronically stored information. The court held a public hearing and administrative conference on Jan. 21, 2010. On March 19, 2010, petitioner filed an amended petition. The court held an administrative conference on April 28, 2010. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendments, the court, on April 28, 2010, adopted the amended petition with a 4 to 3 vote. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, Justice N. Patrick Crooks, and Justice David T. Prosser voted to adopt the petition, and Justice Patience D. Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman dissented. The court also modified Wis. Stat. § 804.01(4m) by adopting a mandatory meet and confer provision for the discovery of electronically stored information. Chief Justice Abrahamson and Justice Bradley dissented to the adoption of a mandatory meet and confer provision under the new Wis. Stat. § 804.01(4m).
Therefore, IT IS ORDERED that the following amendments shall be effective Jan. 1, 2011, but are subject to revision after a public hearing to be held in the fall of 2010 and an opportunity for public comment. Any written comments on these amendments and further proposed amendments should be filed with the Clerk of the Supreme Court by Aug. 31, 2010.1
Section 1. 802.10 (3) (jm) of the statutes is created to read:
802.10 (3) (jm) The need for discovery of electronically stored information.
Judicial Council Note 2010: Sub. (3) has been amended to encourage courts to be more active in managing electronic discovery. Pursuant to Wis. Stat. § 805.06, the court also may appoint a referee to report on complex or expensive discovery issues, including those involving electronically stored information.
Section 2. 804.01 (4m) of the statutes is created to read:
804.01 (4m) Discovery conference. At any time after commencement of an action, on the court’s own motion or the motion of a party, the court may order the parties to confer by any appropriate means, including in person, regarding any of the following, except for discovery of electronically stored information, where parties must confer unless excused by the court:
(a) The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to particular issues.
(b) Discovery of electronically stored information, including preservation of the information pending discovery and the form or forms in which the information will be produced.
(c) The method for asserting or preserving claims of privilege or of protection of trial-preparation materials, and to what extent, if any, such claims may be asserted after production.
(d) The cost of proposed discovery and the extent to which discovery should be limited, if at all, under sub. (3) (a).
(e) In exceptional cases involving protracted actions, complex issues or multiple parties, the utility of the appointment by the court of a referee under s. 805.06 or an expert witness under s. 907.06 to supervise or inform the court on any aspect of discovery.
Judicial Council Note 2010: Sub. (4m) was created as a measure to manage the costs of discovery. If the parties confer before embarking on discovery, they can reduce the ultimate cost of discovery. This provision was created as part of a package of revisions to address issues relating to discovery of electronically stored information, but the provision applies generally, except where specifically limited. The subsection is modeled on similar provisions in the Uniform Rules Relating to the Discovery of Electronically Stored Information, Federal Rules of Civil Procedure 26(f), and on civil procedure rules of other states. The proposal does not mandate a discovery conference in every case. In appropriate cases, it empowers a court to order parties to confer if they do not do so voluntarily. Parties who confer and feel the need for further court intervention may consider the provisions of ss. 802.10(3), 804.01(3), 805.06, and 907.06.
Section 3. 804.08 (3) of the statutes is repealed and recreated to read:
804.08 (3) Option to produce business records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records, including electronically stored information, and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (a) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (b) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
Judicial Council Note 2010: The meaning of the term “electronically stored information” is described in the Judicial Council Note following Wis. Stat. § 804.09.
Section 804.08(3) is taken from F.R.C.P. 33(d). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 804.08(3): Special difficulties may arise in using electronically stored information, either due to its form or because it is dependent on a particular computer system. Rule 33(d) allows a responding party to substitute access to documents or electronically stored information for an answer only if the burden of deriving the answer will be substantially the same for either party. Rule 33(d) states that a party electing to respond to an interrogatory by providing electronically stored information must ensure that the interrogating party can locate and identify it “as readily as can the party served,” and that the responding party must give the interrogating party a “reasonable opportunity to examine, audit, or inspect” the information. Depending on the circumstances, satisfying these provisions with regard to electronically stored information may require the responding party to provide some combination of technical support, information on application software, or other assistance. The key question is whether such support enables the interrogating party to derive or ascertain the answer from the electronically stored information as readily as the responding party. A party that wishes to invoke Rule 33(d) by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory. In that situation, the responding party’s need to protect sensitive interests of confidentiality or privacy may mean that it must derive or ascertain and provide the answer itself rather than invoke Rule 33(d).
Section 4. 804.09 (1) of the statutes is repealed and recreated to read:
804.09 (1) Scope. A party may serve on any other party a request within the scope of s. 804.01(2): (a) to produce and permit the requesting party or its representative to inspect, copy, test or sample the following items in the responding party’s possession, custody, or control: 1. any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any other medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or 2. any designated tangible things; or (b) to permit entry onto designated land or property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Section 5. 804.09 (2) of the statutes is renumbered 804.09(2)(a) and amended to read:
804.09 (2) Procedure. (a) Except as provided in s. 804.015, the request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party, and shall describe with reasonable particularity each item or category of items to be inspected. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.
(b) 1. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form, or if no form was specified in the request, the party shall state the form or forms it intends to use.
(c) The party submitting the request may move for an order under s. 804.12 (1) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
Section 6. 804.09 (2) (b) 2. of the statutes is created to read:
804.09 (2) (b) 2. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
a. A party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request;
b. If a request does not specify a form for producing electronically stored information, a party shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
c. A party need not produce the same electronically stored information in more than one form.
Judicial Council Note 2010: Sections 804.09(1) and (2) are modeled on F.R.C.P. 34(a) and (b). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 804.09(1) and (2): Rule 34(a) is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents. The change clarifies that Rule 34 applies to information that is fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined. A Rule 34 request for production of “documents” should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and “documents.”
Discoverable information often exists in both paper and electronic form, and the same or similar information might exist in both. The items listed in Rule 34(a) show different ways in which information may be recorded or stored. Images, for example, might be hard-copy documents or electronically stored information. The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as e-mail. The rule covers – either as documents or as electronically stored information – information “stored in any medium,” to encompass future developments in computer technology. Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.
References elsewhere in the rules to “electronically stored information” should be understood to invoke this expansive approach.
Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. Rule 34(b) is amended to ensure similar protection for electronically stored information.
The amendment to Rule 34(b) permits the requesting party to designate the form or forms in which it wants electronically stored information produced. The form of production is more important to the exchange of electronically stored information than of hard-copy materials, although a party might specify hard copy as the requested form. Specification of the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery of electronically stored information. The rule recognizes that different forms of production may be appropriate for different types of electronically stored information. Using current technology, for example, a party might be called upon to produce word processing documents, e-mail messages, electronic spreadsheets, different image or sound files, and material from databases. Requiring that such diverse types of electronically stored information all be produced in the same form could prove impossible, and even if possible could increase the cost and burdens of producing and using the information. The rule therefore provides that the requesting party may ask for different forms of production for different types of electronically stored information.
The rule does not require that the requesting party choose a form or forms of production. The requesting party may not have a preference. In some cases, the requesting party may not know what form the producing party uses to maintain its electronically stored information.
The responding party also is involved in determining the form of production. In the written response to the production request that Rule 34 requires, the responding party must state the form it intends to use for producing electronically stored information if the requesting party does not specify a form or if the responding party objects to a form that the requesting party specifies. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs. A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form. Additional time might be required to permit a responding party to assess the appropriate form or forms of production.
The option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.
Section 7. 804.12 (4m) of the statutes is created to read:
804.12 (4m) Failure to provide electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
Judicial Council Note 2010: Section 804.12(4m) is taken from F.R.C.P. 37(e). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 804.12(4m): The “routine operation” of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems.
The rule applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of the routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requiremen means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Among the factors that bear on a party’s good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.
The protection provided by this rule applies only to sanctions “under these rules.” It does not affect other sources of authority to impose sanctions or rules of professional responsibility.
This rule restricts the imposition of “sanctions.” It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information.
Section 8. 805.07 (2) (a) and (b) of the statutes are amended to read:
805.07 (2) (a) A subpoena may command the person to whom it is directed to produce the books, papers, documents, electronically stored information, or tangible things designated therein. A subpoena may specify the form or forms in which electronically stored information is to be produced. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
(b) Notice of a 3rd-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a 3rd-party subpoena requests the production of books, papers, documents, electronically stored information, or tangible things that are within the scope of discovery under s. 804.01(2)(a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.
Section 9. 805.07 (2) (c) of the statutes is created to read:
805.07 (2) (c) If a subpoena does not specify a form for producing electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The person responding need not produce the same electronically stored information in more than one form.
Judicial Council Note 2010: The amendments to s. 805.07 (2) are modeled on F.R.C.P. 45(a) and (d). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 805.07(2): Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information.
Rule 45(a)(1)(B) is also amended, as is Rule 34(a), to provide that a subpoena is available to permit testing and sampling as well as inspection and copying. As in Rule 34, this change recognizes that on occasion the opportunity to perform testing or sampling may be important, both for documents and for electronically stored information.
IT IS FURTHER ORDERED that the Judicial Council Notes to these rules are not adopted but shall be printed for information purposes.
IT IS FURTHER ORDERED that notice of the amendments of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 6th day of July, 2010.
BY THE COURT:
David R. Schanker, Clerk of Supreme Court
¶1 SHIRLEY S. ABRAHAMSON, C.J.
I write for two reasons.
¶2 First, I would, at this time, adopt verbatim the electric discovery rule as redrafted by the Wisconsin Judicial Council.2 The court will have another hearing and conference on these rules in the fall of 2010.3 That’s the time to decide on any changes.
¶3 Second, because few seem to be familiar with the court’s procedure in adopting rules, I want to explain the in-depth review the e-discovery rules have received from the proponent, the Judicial Council, and the court.
I
¶4 I would make no changes to the Judicial Council’s amended petition now because the court decided at its April 28, 2010 open administrative conference to reconsider the Judicial Council’s proposal in the fall of 2010. A date for the hearing and conference will be set soon.
¶5 I therefore would not adopt a “mandatory confer provision” at this time; I would, at this time, go along with the “discretionary confer provision” that the Judicial Council recommends.4
¶6 We have to keep in mind that the increasing use of electronic records is a relatively recent phenomenon and that rules governing electronic discovery are also relatively new.5 The federal rules on e-discovery are a work in progress.6 The seventh circuit court of appeals is conducting a pilot program on e-discovery. The Judicial Council’s proposal is a start, designed to encourage courts to be more active in managing electronic discovery and production than in managing conventional discovery.7
¶7 The court will revisit this amended petition for additional comments, for yet another open hearing, and for yet another open administrative conference in the fall of 2010. After considering additional comments, the court can make any changes it thinks advisable.
¶8 The circuit court judges have not been notified personally of the proposed mandatory confer change and have not weighed in on the proposal. I want to hear from the circuit court judges who have to apply these rules before I make up my mind on the final version of the rules. Thus, I do not see any reason to debate at this time the value of changing the proposed rules.
II
¶9 I turn to the process used in adopting these rules.
¶10 The Judicial Council had an excellent committee, the Evidence and Civil Procedure Committee, representing diverse experiences in the law, studying the proposed e-discovery rules.8 The Committee began its work in September 2007; the proposed rules were approved by the Judicial Council.
¶11 The Court has spent a considerable amount of time studying the proposal and discussing it.
¶12 The timeline for the drafting and consideration of the e-discovery petition has been as follows:
September 2007Judicial Council Committee begins work on the petition.
April 23, 2009 – Judicial Council files petition.
Nov. 2, 2009 – Court schedules public hearing.
December 2009– Court publishes notice of public hearing.
Nov. 13, 2009 – Court sends letter soliciting comments.
Jan. 21, 2010 – Open public court hearing and open court administrative conference.
March 19, 2010– Judicial Council files amended petition at court request.
April 13, 2010 – Court sends letters soliciting comments.
April 28, 2010 – Open public court administrative conference.
¶13 At its January 21, 2010 public hearing and open administrative conference, the Court considered the Judicial Council’s petition. The Court had the valuable assistance of staff who prepared a two-inch ring binder filled with federal and state material on e-discovery, a memorandum analyzing the proposal, and numerous comments the court received.
¶14 After a lengthy hearing and court discussion, the court voted unanimously to ask the Judicial Council to redraft the proposed rule to mirror the federal rules to the extent the Judicial Council thought feasible.9 The Court also asked the Judicial Council to reconsider several issues, such as adding the federal commentary and additional state commentary, clawback, cost shifting, privileges, etc., and to advise the court why the Judicial Council is or is not proposing the adoption of such provisions in Wisconsin.
¶15 The Judicial Council’s amended petition followed the federal rules (even more closely than the original petition) and addressed the concerns raised by the court.10 The amended petition includes the following:
(1) Adding new § 804.01(4m) on meet and confer;
(2) Repealing and recreating § 804.08(3), Option to Produce Business Records, to mirror FRCP 33(d) (the original petition had amended the section); and
(3) Repealing and recreating § 804.09(1), Scope, to mirror FRCP 34(b)(2)(E) (the original petition had amended the section).
(4) Like the federal rules does not include a definition of “electronically stored information” in the rules.11
Both the original petition and amended petition create:
§ 804.12(4m), Failure to Provide E-Stored Information, which mirrors FRCP 37(e);
§ 804.09(2)(b)2., Procedure, which mirrors FRCP 34(b)(2)(E); and
§ 805.07(2)(c), Subpoena requiring the production of material, which mirrors FRCP 45(d)(1)(B) and (C).12
¶16 For the hearing and conference in the fall of 2010, I would ask that interested persons comment specifically on issues of concern raised by some members of the court, such as the mandatory/confer provision, clawback, and cost shifting.
¶17 To assist persons who wish to comment on the e-discovery rules, I have attached selected portions of the court hearing, the court’s open administrative conferences, and the Judicial Council’s submissions, as Appendices as follows:13
Appendix A: Court’s Request to Judicial Council to Redraft Petition to Follow the Federal Rules and to Reconsider Several Issues
Appendix B: Court Discussion of Clawback
Appendix C: Court Discussion of Cost Shifting
Appendix D: Letter from Judge Sankovitz Explaining Reasoning of Judicial Council’s Proposed Rules
Appendix E: Letter from Judicial Council Reaffirming Its Position on Discretionary Confer Provision
Appendix F: April 28, 2010 Open Administrative Conference Scheduling Another Hearing in Fall 2010 on E-Discovery Proposal Adopted
¶18 The full hearing and the conferences of January 21, 2010 and April 28, 2010, are available on the internet at the Wisconsin Eye website for the Supreme Court 2010 Session at http://wisconsineye.org/wisEye_programming/ARCHIVES-sct_2010.html.
¶19 The court’s file on this proposed rule contains numerous submissions advocating for and against the proposed rule. The file is available at the Office of the Clerk of the Supreme Court, 110 East Main Street, Madison, Wis. 53701.
¶20 I write separately to explain why I adopt the proposed rules verbatim at this time and dissent from amending the proposed amended petition to provide for a mandatory confer procedure. I also write separately to explain the in-depth study given e-discovery by the Evidence and Civil Procedure Committee of the Judicial Council, the Judicial Council, and the court.
¶21 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). On April 28, 2010, the majority adopted verbatim a petition that leaves unresolved the very concerns that the rules set out to address: judicial inefficiency and the overwhelming economic burden that can result from the discovery of electronically stored information.14 See Memorandum in Support and Petition of Wisconsin Judicial Council for an Order Amending Wis. Stat. §§ 802.10, 804.08, 804.09, 804.12, and 805.07, at 2 (Apr. 23, 2009) (identifying the “key goal[s]” of the proposed rule changes as “increas[ing] judicial efficiency in the circuit courts by improving consistency and predictability in the discovery of electronically stored information” and “reduc[ing] the economic burden on litigants that can result from discovery involving an enormous volume of electronically stored information”). For reasons that are unclear, the adopted rules depart in significant respect from the corresponding Federal Rules of Civil Procedure (Federal Rules). As a result, in exchange for the rules’ hasty adoption, the majority has sacrificed the guidance and benefit of a growing body of federal law and has left gaping holes in rules meant to promote efficient and cost-effective electronic discovery. For those reasons, I respectfully dissent.
¶22 Our adopted rules exclude several key provisions from the corresponding Federal Rules. A few examples are illustrative. Most significantly, the adopted rules do not provide a framework for cost-shifting. Pursuant to Federal Rule of Civil Procedure 26(b)(2)(B), “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” If the requesting party shows good cause, the court may nonetheless order discovery, bearing in mind the burden and expense limitations provided in Rule 26(b)(2)(C). Fed. R. Civ. P. 26(b)(2)(B). The court’s consideration of the Rule 26(b)(2)(C) limitations is “coupled with the authority to set conditions for discovery,” which may “include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.” Fed. R. Civ. P. 26(b)(2) advisory committee’s note. In contrast, under our adopted rules, a party’s duty to provide discovery of electronically stored information is the same no matter what the burden or cost. The party’s lone source of recourse is moving for a protective order that, upon a showing of good cause, protects the party generally from “annoyance, embarrassment, oppression, or undue burden or expense.” Wis. Stat. § 804.01(3)(a) (2007-08). Accordingly, as compared to the Federal Rules, our adopted rules place the onus of alleviating burdensome and expensive electronic discovery on the responding party.
¶23 In addition, our adopted rules ignore the practical necessity of a “claw back” provision to resolve the costly issue of inadvertently produced privileged information. In the context of electronic discovery, in which potentially many thousands of documents are produced, it is tremendously expensive and time-consuming to preliminarily review each document to determine if it contains privileged information. Under the Federal Rules, a party that inadvertently produces privileged information may notify the receiving party, and the receiving party “must promptly return, sequester, or destroy the specified information and any copies it has” and “must not use or disclose the information” until the privilege claim is resolved. Fed. R. Civ. P. 26(b)(5)(B). The practical implications of electronic discovery demand a similar “claw back” mechanism in our rules.
¶24 Finally, our adopted rules lack even a definition of “electronically stored information” – an omission that perhaps sheds the greatest light on the haste with which these rules were adopted. The meaning of “electronically stored information” is described in the Judicial Council Notes that this court did not adopt. Accordingly, our rules leave litigants and circuit courts in the dark over this court’s definition of the very form of discovery that we are attempting to efficiently govern.
¶25 For reasons that are unclear, the adopted rules depart in significant respect from the corresponding Federal Rules. As a result, in exchange for the rules’ hasty adoption, the majority has sacrificed the guidance and benefit of a growing body of federal law and has left gaping holes in rules meant to promote efficient and cost-effective electronic discovery. For those reasons, I respectfully dissent.
¶26 I am authorized to state that Justices Patience Drake Roggensack and Michael J. Gableman join this dissent.
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Diploma Privilege
In the matter of the petition to amend or repeal Supreme Court Rule 40.03, Diploma Privilege
Order 09-09
On Sept. 28, 2009, Attorney Steven Levine and 70 other members of the State Bar of Wisconsin petitioned this court to amend Supreme Court Rule (SCR) 40.03 by extending diploma privileges to graduates of all ABA-approved law schools, or in the alternative, to repeal SCR 40.03 in its entirety. The petitioners state the purpose of the petition is to end the double standard discrimination in Wisconsin bar admission where University of Wisconsin and Marquette University Law School graduates are admitted under the current diploma privilege while graduates of all other ABA-approved law schools are required to pass the Wisconsin bar exam.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Thursday, Sept. 30, 2010, at 9:30 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 the petition and memorandum in support of the petition shall be made available on the Web site of the Wisconsin Supreme Court under http://wicourts.gov/supreme/petitions_audio.htm.
IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper 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 6th day of July, 2010.
BY THE COURT:
David R. Schanker,
Clerk of Supreme Court
Petition
Petitioner Steven Levine and 70 other State Bar members petition the Supreme Court to amend SCR 40.03 by removing the words “in this state” wherever they are found in the rule1 or, in the alternative, to repeal SCR 40.03 entirely. This proposed change would extend the diploma privilege to graduates of all ABA-approved law schools or abolish it entirely. Reasons for this petition are as follow:
1. In 1870 the Wisconsin legislature established the diploma privilege as an incentive to encourage prospective lawyers to prepare for the profession by a regular course of academic study at the University of Wisconsin law school rather than by apprenticeship or “reading law” and then passing a bar exam. Please see Ch. 79, Laws of 1870.
2. From 1897-1903 the diploma privilege was extended to graduates of out-of-state law schools. Please see Steininger, The Diploma Privilege – Recent Developments, Wis. B. Bull. April 1974, pp. 14-18.
3. In 1933 the Wisconsin legislature extended the diploma privilege to graduates of Marquette University Law School, which extension was acquiesced in by the Supreme Court of Wisconsin. Please see Ch. 60, Laws of 1933 (amending Wis. Stat. § 256.28(1)) and In re Admission of Certain Persons to the Bar, 211 Wis. 337, 247 N.W. 877 (1933).
4. Today the diploma privilege is no longer necessary as an incentive to encourage lawyers-to-be to attend law school. All Wisconsin bar admission applicants are required to have attended law school as a prerequisite to admission to practice law in Wisconsin. Please see SCR 40.03 (intro.) and 40.04(1).
5. The quality of American Bar Association-approved law schools located outside Wisconsin is as high as those located in Wisconsin.
6. Requiring a bar exam of graduates of law schools located outside Wisconsin imposes a substantial financial, time, pressure, family, and employment disadvantage burden which would be alleviated by striking the words “in this state” from SCR 40.03.
7. As indicated by the inclusion of the Multi-state Bar Exam and Multi-state Practice Exam in the Wisconsin Bar Exam, the purpose of the Wisconsin Bar Exam is to test the applicant’s ability to think and to reason like a lawyer, not primarily to memorize Wisconsin law.
8. The limitation of the diploma privilege to graduates of Wisconsin law schools discriminates against Wisconsin residents who may be unable to enroll in law schools located in Wisconsin because of those schools’ admission policies unrelated to academic performance, because of capacity limitations, or for other reasons.
9. Wherefore, petitioners respectfully request the Court to remove the words “in this state” from SCR 40.03 for a 10-year trial period to test whether such an amendment is practical. This amendment would extend the diploma privilege to graduates of all ABA-approved law schools. If the Court declines to so amend the rule, petitioners respectfully request that the rule be repealed in its entirety.
Respectfully submitted,
Steven Levine, 5010 Buffalo Trail, Madison, WI 53705 and 70 other State Bar members
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Wisconsin Lawyer
