Vol. 82, No. 3, March 2009
The Wisconsin Supreme Court adopted the Wisconsin Judicial Council’s amended petition regarding how depositions done outside Wisconsin are conducted, effective July 1, 2008.1 On June 15, 2005, the Judicial Council filed Rule Change Petition 05-06 asking the court to amend Wis. Stat. section 887.26 regarding requirements for conducting depositions outside the state. Following a supreme court public hearing, the Judicial Council filed an amended petition, which the court adopted at its open administrative conference on March 12, 2007.
The revised section 887.26 contains several important changes. The conduct of a deposition outside the state now will be substantially the same as the conduct of a deposition inside Wisconsin. The rule no longer restricts depositions outside the state to depositions by written question and now allows them to be oral or written. This change brings the rule into conformance with current practice, recognizing that Wisconsin litigants routinely take oral depositions, whereas depositions by written question are rarely conducted.
As with in-state depositions, the revised rule specifically acknowledges that a commission may be obtained to take out-of-state depositions before an action is commenced, pursuant to Wis. Stat. section 804.02(1). When an action has already been commenced, out-of-state depositions are permitted before the answer is filed, consistent with Wis. Stat. section 804.05(1). Although the changes generally conform to the rules regarding in-state depositions, they do not replace the 20-day notice period required in section 804.02(1).
The revisions specify those persons before whom out-of-state depositions may be taken, both in the United States and in foreign countries, rendering the rule essentially the same whether the deposition takes place in Wisconsin or in another jurisdiction.2 Further, the rule now requires the officer before whom the deposition is taken to comply with the provisions of section 804.05(7) for certification of the deposition transcript and mailing and handling of exhibits.
The requirement for a motion to obtain a commission for a foreign deposition has been replaced by a simple notice procedure, subject to a five-day objection rule. In addition, the commission now must be directed to the court with jurisdiction over the witness, instead of the court of the witness’s county of residence. This broader terminology acknowledges that potential witnesses may reside in jurisdictions lacking county boundaries.
The prior provision for objecting to a designated witness’s competency has been replaced with a general provision for objections as allowed by Wis. Stat. sections 804.05(4) and 804.06(2), reflecting the liberalization of the law with respect to witness competency.
The rule also was amended to make the costs of out-of-state depositions the same as costs for in-state depositions. Finally, the new rule has been modified slightly to encompass translation of testimony by witnesses who speak languages other than English or who use sign language: the rule makes clear that the noticing person is responsible for translation costs.
The petitions and orders are available on the court’s Web site: