Legal Update: New Procedure in Wisconsin for Obtaining Discovery to Use in Other States
Litigants venued in state courts outside of Wisconsin often have to issue subpoenas on individuals and entities residing in Wisconsin to take their depositions, inspect and obtain their documents, and inspect property under their control. The process that these out-of-state litigants must follow to subpoena these potential third-party witnesses residing in Wisconsin has changed. In an order dated July 7, 2015, the Wisconsin Supreme Court repealed and recreated Wis. Stat. § 887.24 to adopt in substantial part the Uniform Interstate Depositions and Discovery Act (UIDDA). Patterned after Federal Rule of Civil Procedure 45, the UIDDA drastically simplifies the process that out-of-state litigants must follow to subpoena third-parties that reside in states outside of the state in which their case is venued. Wisconsin’s version of the UIDDA applies to any out-of-state case that was pending on, or filed after, January 1, 2016.
Under § 887.24, an out-of-state litigant can now request that the clerk of court for the Wisconsin county in which the discovery is sought, issue a subpoena on a third-party residing in that county. To make such a request, a party must submit a properly issued foreign subpoena that is accompanied by an appropriate Wisconsin subpoena form. The Wisconsin subpoena form must:
- List the Wisconsin county where discovery will be conducted as the court from which the subpoena is issued, and list the witness’s address, including the county of residence. For the purposes of § 887.24, discovery is conducted in the county where an individual resides or where an entity does substantial business;
- Use the title and docket number for the action as it appears in the foreign jurisdiction;
- Incorporate the terms of the foreign subpoena and include a copy of the foreign subpoena as an attachment;
- Include the names, addresses, and telephone numbers of all counsel of record and any pro se parties in the proceeding to which the subpoena relates; and
- Advise the individual or entity to whom the subpoena is directed that: “You have a right to petition the Wisconsin circuit court for a protective order to quash or modify the subpoena or provide other relief under [Wis. Stat. §] 805.07(3).”
When these requirements are met, the clerk of court must sign and issue the Wisconsin subpoena for service. The subpoena must then be served by the issuing party on the deponent in accordance with Wisconsin law. When executed, any deposition, production, or inspection conducted by the out-of-state litigant pursuant to a subpoena issued under § 887.24 must be completed in compliance with Wisconsin’s discovery rules and statues.
Notably, an out-of-state litigant is not required to retain a licensed Wisconsin attorney to issue a subpoena under § 887.24, because the statute specifically provides that issuance of such a subpoena does not constitute an appearance in Wisconsin courts. Nonetheless, it is advisable that out-of-state litigants strongly consider retaining local counsel. Under § 887.24, the recipient of a subpoena may file an application to the Wisconsin circuit court for a protective order, or to quash or modify the subpoena. Moreover, the issuing party may be required to file an application with the Wisconsin circuit court to enforce the subpoena in the event that the recipient fails to comply with the subpoena’s mandates. Any of these applications commence a special proceeding in the Wisconsin circuit court where the application is filed: the matter is assigned a case number and a fee will be charged. A final order granting, denying, or otherwise resolving an application filed under § 887.24 is a final order for purposes of filing an appeal pursuant to Wis. Stat. § 808.03(1).
As such, only those attorneys licensed to practice law in Wisconsin can file, respond to, or otherwise appear in court for any special proceeding related to any application filed under § 887.24. With these concerns in mind, § 887.24 also allows an out-of-state litigant to instead retain an attorney licensed to practice law in Wisconsin to issue a subpoena pursuant to Wis. Stat. § 805.07. Accordingly, retaining local counsel to issue a subpoena under § 887.24 can both ensure compliance with Wisconsin’s discovery rules and statutes and eliminate any uncertainty as to an out-of-state litigant’s ability to enforce or respond to a recipient’s challenge of its subpoena.
The full text of Wis. Stat. § 887.24, including the Judicial Council Committee Notes, can be found here.