Wisconsin Civil Discovery Rules and Procedures

Wisconsin discovery is governed primarily by Wis. Stat. § 804.01 et seq. and the Wisconsin Evidence Code (Wis. Stat. § 901 et seq.). Unlike federal practice under the Federal Rules of Civil Procedure, Wisconsin has its own distinct discovery framework with specific numerical limits, timing requirements, and procedural nuances that practitioners must understand.

Mandatory Initial Disclosures

Wisconsin does not require mandatory initial disclosures comparable to Federal Rule 26(a). There is no blanket requirement to automatically provide opponent with contact information, insurance details, or initial witness lists before being asked.

However, Wis. Stat. § 804.01(2) requires parties to supplement responses to discovery requests, and some discovery requests (particularly interrogatories about experts and contentions) will necessarily elicit disclosure of key information early in litigation. Additionally, specific discovery requests can and should be used strategically to obtain foundational information early.

Practical note: Many Wisconsin practitioners use an "early exchange of information" agreement to streamline discovery similar to federal practice, but this is contractual rather than mandatory.

Interrogatories

Numerical Limits and Subparts

Wis. Stat. § 804.01(3) limits interrogatories strictly:

25 interrogatories (including all subparts and discrete questions within a single numbered interrogatory)

Additional interrogatories may be served only with written stipulation of the parties or court order

Subparts count toward the limit — this is a critical distinction

For example, "Identify all documents related to X" followed by "(a), (b), (c)" = multiple interrogatories for limit purposes.

Format and Numbering

Interrogatories must be numbered consecutively

Each must be capable of being answered separately

Complex or compound interrogatories are vulnerable to objections under § 804.01(3)

Time to Respond

Wis. Stat. § 804.01(3) provides 20 days from service to respond. Requests for extension should be sought in writing before the deadline passes.

Objections and Responses

Objections must be stated with specificity — blanket objections ("burdensome," "overly broad") are disfavored

Even if objection is stated, responding party should provide whatever information is not objectionable

Boilerplate objections without particularized explanation are vulnerable to motions to compel

If a party objects, that objection is waivable if not timely asserted

Requests for Production of Documents

Scope and Rules

Wis. Stat. § 804.01(5) governs document production:

Requests must describe items with reasonable particularity

Receiver must respond within 20 days of service

Documents must be produced as kept in the usual course of business, or organized and labeled to correspond with request categories

Electronically Stored Information (ESI)

Wisconsin courts increasingly address ESI under § 804.01(5). Key principles:

Scope: ESI is discoverable on the same basis as paper documents

Format: A party should produce ESI in native format if practicable; if not, in TIFF or PDF with metadata preserved, unless parties stipulate otherwise

Metadata: Generally producible unless privileged or protected

Cost allocation: Requesting party normally bears cost of retrieval unless voluminous or unduly burdensome

Preservation: A party aware of anticipated litigation must preserve relevant ESI; failure creates duty to mitigate damages through adverse inferences or sanctions

Wisconsin does not have a specific safe harbor for ESI inadvertently produced (unlike Federal Rule 502(b)), so be cautious.

Clawback Agreements

Wisconsin practitioners frequently enter stipulated "claw-back" or "quick peek" agreements allowing inadvertent review of privileged materials without waiver. While not mandated by statute, courts are receptive to these agreements when properly memorialized.

Requests for Admission

Numerical Limits

Wis. Stat. § 804.01(6) limits requests for admission:

25 requests (counting subparts similarly to interrogatories)

Additional requests require written stipulation or court order

Time to Respond

20 days from service to respond (Wis. Stat. § 804.01(6)).

Deemed Admissions

Critical consequence: If a request for admission is not answered within 20 days, it is deemed admitted under § 804.01(6). No "relation back" or after-the-fact denial is permitted except:

Party shows good cause for failure to respond

Response was mailed before deadline (even if received after)

Court permits withdrawal of admission for good cause under § 804.01(6)

Withdrawal is possible but judges scrutinize late attempts, particularly if opposing party relied on the admission.

Objections

Objections must state reason with specificity. Statements like "not relevant" or "burdensome" without elaboration are insufficient. If objection is taken, responding party should still admit or deny to extent not objectionable.

Depositions

Limits on Number

Wis. Stat. § 804.02 does not impose a numerical limit on depositions (unlike federal practice, which limits to 10 per side). This provides Wisconsin parties greater flexibility, though abuse can be addressed through protective orders or sanctions.

Duration Limits

Default: 4 hours per deponent per day

Exception: Parties may stipulate to extended duration or court may permit longer depositions for good cause

Transcription may continue beyond 4 hours, but examination is ordinarily limited to 4 hours

Notice Requirements

Wis. Stat. § 804.02 requires:

14 days' written notice of deposition (can be reduced or waived by written stipulation)

Notice must include date, time, location, and name/description of deponent

Service on all parties (unless stipulated otherwise)

For non-party witnesses: subpoena required (see below)

Who Can Be Deposed

Parties and agents of parties

Non-party witnesses (via subpoena)

Corporate representatives (must be noticed with sufficient particularity under § 804.02)

Use at Trial

Depositions may be used:

For impeachment of trial testimony

Admissions by opposing party

For any purpose if witness is unavailable (defined as death, distance >100 miles, infirmity, or other good cause)

With parties' stipulation

Absent exception, deposition testimony is not admissible as a substitute for trial testimony if witness is available to testify.

Physical and Mental Examinations

When Allowed

Wis. Stat. § 804.04 permits physical and mental examinations:

Only when condition is "in controversy"

Requires court order (or written stipulation between parties)

Proponent must demonstrate good cause

Who Can Request

Any party may move for order requiring examination

Examined party has right to obtain and retain copy of report

Requirements

"In controversy" standard: Claim or defense must place physical or mental condition directly at issue (not merely incidental)

Good cause: Court must find compelling need for examination

Limitations: Court may limit scope, methodology, and frequency to avoid unreasonable burden

Example: In personal injury case, plaintiff's medical condition is in controversy; examining physician may take broad range of examinations. In negligence case where plaintiff's emotional distress is not major claim element, defense may have difficulty obtaining mental examination.

Subpoenas for Non-Parties

Issuance

Wis. Stat. § 804.05 governs non-party subpoenas:

Issued by clerk of court or attorney (with court restrictions in some counties)

Must state name and address of issuing attorney/party

Must specify documents or testimony required with reasonable particularity

Must provide 14 days' notice before compliance date (reduced notice permitted for good cause)

Geographic Limits

Wisconsin: Non-party resident anywhere in state may be subpoenaed

Out-of-state: Non-party may be subpoenaed only if resident of Wisconsin for 30 days or more, or employed within state, or doing business within state

Out-of-state depositions: Limited by reciprocal arrangements; federal court subpoena rules (100-mile bulge) do not apply to state court

Compliance Requirements

Non-party must comply unless grounds for quashing exist

Grounds for quashing: privilege, undue burden, lack of notice, witness subpoenaed to testify outside reasonable geographic area (§ 804.05(4))

Non-party may seek protective order or motion to quash

Expert Discovery

Disclosure Requirements

Wis. Stat. § 804.01(9) requires:

Identification of experts early — typically via interrogatory response

Expert report or statement: While not mandatorily required like federal practice, good practice is to provide report containing:

- Expert's qualifications
- Summary of opinions
- Facts and assumptions relied upon
- Bases for opinions

Timing

Disclosure window: Should occur early, typically 60-90 days before trial (no statutory mandate, but discovery cutoff rules apply)

Reciprocal: Opposing party has opportunity to designate rebuttal experts

Deposing Experts

Expert depositions permitted under § 804.02 (no distinct limitations)

Depositions of treating physicians generally permitted; expert consultants (not expected to testify) may be protected if prepared at attorney direction

Scope of Discovery

What Is Discoverable

Wis. Stat. § 804.01(1) defines scope:

Relevant to subject matter of action

Likely to lead to discovery of admissible evidence

Information concerning parties, claims, defenses, damages

Wisconsin's scope is broader than the federal "proportional to needs" formulation but still not unlimited.

Relevance Standard

Information need not be admissible at trial

Need not be directly material to claim or defense

"Likely to lead to" discovery standard permits reasonable inquiry into peripheral matters

Proportionality Considerations

While § 804.01 does not explicitly reference proportionality, Wisconsin courts consider proportionality in determining scope:

Burden of production vs. benefit to case

Whether information can be obtained from other sources

Nature and amount of discovery already conducted

Importance of information to case

Disproportionate requests may be limited via protective order.

Privileges and Work Product

Attorney-Client Privilege

Wis. Stat. § 905.02 protects communications between attorney and client:

Communication must be made in confidence for purpose of obtaining/providing legal advice

Applies to both in-house counsel and outside counsel

Applies to documents prepared by attorney at client direction

Work Product Doctrine

Wis. Stat. § 804.01(4) provides qualified immunity for work product:

Materials prepared by attorney in anticipation of litigation

Includes attorney's mental impressions, conclusions, opinions

Qualified protection (not absolute) — can be overcome by showing:

- Substantial need for materials
- Inability to obtain equivalent information by other reasonable means
- Examination of expert work product requires showing of exceptional circumstances

Privilege Logs

While not statutorily required, Wisconsin practice expects privilege logs when privilege is asserted:

Document should be listed with date, author, recipient, subject matter

Privilege asserted (attorney-client, work product, etc.)

Brief explanation of basis

Failure to log may result in waiver or adverse inference.

Meet and Confer Requirements

Wis. Stat. § 804.01 does not explicitly mandate meet-and-confer before filing discovery motions. However, Wisconsin courts expect parties to attempt resolution:

Best practice: Written request for response before filing motion to compel

Affidavit of effort to resolve should accompany motion to compel

Court may impose sanctions on party filing motion without reasonable effort to confer

Discovery Cutoffs

Timing Relative to Trial

Wisconsin does not have a bright-line discovery cutoff rule in the statutes. However:

Default deadline: Discovery ordinarily closes 60-90 days before trial (local rules vary by county; refer to individual county circuit court rules)

Trial court discretion: Judge may extend or curtail discovery timing by order or standing order

Late discovery: Strict application of discovery deadlines is typical; late requests are often denied absent good cause

Protective Orders

Obtaining Protective Orders

Wis. Stat. § 804.01(8) permits protective orders upon motion:

Party may move for order protecting against harassment, burden, or expense

Court may:

- Deny discovery
- Require limited scope
- Specify conditions (e.g., attorney's eyes only, protective agreement)
- Require phased discovery
- Impose other conditions

Good Cause Standard

Good cause required:

Burden or expense significantly outweighs likely benefit

Information is sensitive, confidential, or proprietary

Broad categories: trade secrets, financial information, personnel files, medical records

Common protective orders:

Stipulated confidentiality agreements (most common; parties agree not to disclose)

Counsel only designations

Restricted access to specific individuals

Redaction of sensitive portions

Motions to Compel

Procedure

Wis. Stat. § 804.01(7) establishes motion to compel process:

Must include certification of effort to resolve dispute

Served on resisting party

Court may order compliance or hold hearing

Court may award expenses if motion granted (see below)

Burden of Proof

Initial burden on requesting party: Show that discovery request is proper, timely, and compliant with § 804.01

Burden shifts to resisting party: Once properness shown, resisting party must prove objection is valid

Boilerplate objections insufficient; particularized showing required

Fees and Expenses

Wis. Stat. § 804.01(7) provides:

Court may require resisting party to pay reasonable expenses, including attorney fees, if motion granted

Exception: If resisting party's position substantially justified, fees not awarded

Burden is on requesting party to show lack of substantial justification

Sanctions for Discovery Abuse

Wisconsin Sanctions Rules

Wis. Stat. § 804.12 governs sanctions for discovery violations:

Types of sanctions:

Monetary: Reasonable expenses and attorney fees

Non-monetary: Preclusion of evidence, judgment by default, dismissal, contempt

Specific Violations Triggering Sanctions

Failure to respond to discovery

Providing false or incomplete response

Failure to preserve ESI (adverse inference or sanctions)

Violation of protective order

Deposition abuse (e.g., obstruction, coaching)

Judicial Discretion

Judges have broad discretion in fashioning sanctions. Courts require:

Showing of prejudice: How was opposing party harmed?

Willfulness: Was violation intentional or negligent?

Prior warnings: Have parties been warned?

Proportionality: Is sanction proportionate to violation?

Contempt sanctions (especially preclusion or default) require clear and convincing evidence of violation.

Adverse Inferences

Courts frequently impose adverse inferences rather than drastic sanctions:

If party destroys or fails to preserve ESI, jury may infer content was unfavorable

Requires showing that information was relevant and party knew litigation was anticipated

Unique Wisconsin-Specific Practices

Local Rules and County Variations

Wisconsin has no uniform statewide discovery rules beyond statutes

Individual counties have local rules (e.g., Dane County Circuit Court, Milwaukee County) specifying:

- Discovery deadlines
- Standing orders on ESI format
- Mediation/conference requirements

Always check applicable county local rules before initiating discovery

Stipulated Protective Agreements

Wisconsin practice heavily favors stipulated discovery agreements to streamline process:

Parties often stipulate to:

- Extended discovery periods
- Increased interrogatory/request limits
- Expedited expert exchange
- ESI protocols

Written stipulation binds parties and avoids motion practice

Practical Wisconsin Considerations

Rural counties: Longer distances may affect deposition logistics and witness availability

Judicial economy: Wisconsin judges emphasize proportionality and discourage "scorched earth" discovery

Early settlement conferences: Many counties require early mediation/settlement conference, which affects discovery timing

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Key Takeaways

No mandatory initial disclosures in Wisconsin; discovery is request-based, but interrogatories and expert questions will elicit early substantive information

25-interrogatory and 25-request limits (including subparts) apply unless parties stipulate or court orders otherwise; these are strictly enforced

20-day response deadline applies to interrogatories, requests for production, and requests for admission; failure to respond to admissions results in deemed admissions absent good cause

No numerical limit on depositions but 4-hour default duration applies; 14 days' notice required and must-respond timing is strict

ESI production rules are evolving but generally require native format