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DOCKET NO. 98-S-293

DOCKET NO. 98-S-294



This matter comes before the Commission on petitioners' motion to extend the discovery period for a limited purpose.(1) Both parties have filed submissions with respect to the motion.

Petitioners are represented by Attorney Timothy C. Frautschi of Foley & Lardner, Milwaukee, Wisconsin. Respondent ("Department") is represented by Attorney Linda M. Mintener.

Having considered the record regarding this motion, the Commission finds, rules, and orders as follows:


1. Petitioners Consolidated Papers, Inc. ("Paper Co."), and Consolidated Water Power Company ("Water Co.") initiated these cases before the Commission by filing timely petitions for review on December 11, 1998. The Department filed its Answers on January 5, 1999.

2. Beginning in February of 1999, the Commission has conducted at least 10 telephone conferences with the parties to identify the issues involved and to move this litigation forward. During this time, the parties have discussed the possibility of stipulating to all or some of the facts and issues in these cases. Several proposed drafts have been exchanged and discussed by the parties.

3. Under date of June 28, 1999, the Commission ordered that discovery was to be completed by August 2, 1999. The Department has conducted extensive discovery; petitioners have not.

4. On October 8, 2001, petitioners filed a motion to extend (or reopen) the discovery period for the limited purpose of enabling them to conduct discovery regarding a prior Department sales and use tax audit of the Paper Co. for the years 1986 to 1992, the period relating to its claims for refund currently under review. The Department opposes this motion.


As the parties know, the Commission's administrative rules authorize discovery in cases before it. Wisconsin Administrative Code § TA 1.35(1) authorizes discovery "in the same manner and by the same methods as provided under ch. 804, Stats., unless inconsistent with or prohibited by statute, or as otherwise determined by the commission."

In its Order dated June 28, 1999, the Commission directed that discovery be completed by August 2, 1999. However, the Commission has the authority to hear discovery motions if the "moving counsel shall first advise the commission in writing that after serious effort to resolve differences, counsel are unable to reach an accord." Wis. Admin. Code § TA 1.35(2).

The Department argues that petitioners have not made a "serious effort" to resolve their discovery differences. This ignores reality. Petitioners have requested a copy of the audit report of the Paper Co. several times, verbally, and at least once in writing. Additionally, an October 1, 2001 affidavit of petitioners' counsel describes the efforts of the parties in developing and discussing 13 drafts in an attempt to reach an agreed stipulation of facts. The Department was a party to drafting and discussing these documents. It is clear to the Commission that petitioners (and the Department) have made "serious effort[s]" to resolve the differences regarding obtaining the earlier Paper Co. audit and regarding these cases in general.

The Department asserts that "It is inappropriate [for petitioners] to involve this Commission in the parties' negotiations of the stipulation language. . . ." (Dept.'s Brief, p. 6.) This argument also fails. Petitioners merely recited the differences between the 13 stipulation drafts; this was intended to and does demonstrate that petitioners have made a "serious effort" to resolve those differences.

The Department, itself, then discusses the stipulation drafts. It states that each draft contained between 44-47 separate paragraphs. Its next sentence reads: "The parties have agreed to most of the language of the other 40+ paragraphs." (Dept.'s Brief, p. 6.) If this is so, it bewilders the Commission as to why a partial stipulation of facts has not been agreed to long ago and filed with the Commission to move this litigation forward.(2) A trial on the remaining facts would appear to be much shorter than on all the facts.

Petitioners argue that their motion should be granted because the Department refuses to stipulate to any part of the audit of the Paper Co.'s sales and use taxes for the years 1986 to 1992. They assert that the Department's "refusal to agree to any stipulation about the [earlier] Audit is good cause for extending the discovery period". (Motion, p. 2.)

The Commission disagrees. A principle underlying permissible discovery is that the truth-finding function is furthered by full and open disclosure of information. Hickman v. Taylor, 329 U.S. 495 (1947), and State ex rel. Dudek v. Circuit Court, 34 Wis. 2d 559 (1967). In Dudek, the Wisconsin Supreme Court stated (Id. at 576):

. . . the ultimate objective of the adversary trial system and of pretrial discovery is identical. The ends of justice and civil peace are best served when our trial procedure results in an informed resolution of controversy. The basic objective of our trial system, then, is the ascertainment of the truth, whether by court or jury, on the basis of those factors legal and factual, best calculated to effect a decision which comports with reality. The thought, of course, is that justice can more likely be done if there is a preliminary determination of the truth of facts. [Emphasis added.]

Petitioners' stated reason for wanting to conduct discovery is to

"encourage" the Department to stipulate certain facts. But stipulated facts should be agreed upon voluntarily. The Commission will not force either party to stipulate facts when there is a legitimate difference between the parties. Petitioners' chosen method for encouragement is not appropriate under these circumstances. Their motion is denied. This denial should not derail petitioners' presentation of their cases, as they state that the information sought can be brought out by testimony at the trial.

The Department's request for additional discovery, if petitioners are permitted to conduct discovery, almost appears retaliatory. (Dept.'s Brief, pp. 23-24.) Its request is also denied.

The Department's refusal to turn over the audit report in question is confusing in light of its willingness to allow petitioners to review the underlying work papers. Also troublesome is the Department's statement that the prior "Audit is not relevant here." (Dept.'s Brief, p. 7.) This is presumptuous. Relevancy is a matter for the Commission, not for one of the parties, to decide.

The parties here, at times, appear to have abandoned their usually calm and orderly presentations in their briefs on the procedural motion presently under consideration. Three years of procedural wrangling and disagreement over terminology are enough! These cases should move forward.

The Commission respects the professionalism and the legal abilities of counsel for the parties. They are, however, cautioned that a lack of civility and decorum at the trial on these matters will not be tolerated.


1. Petitioners' motion to extend the discovery period for a limited purpose is denied.

2. The Department's motion to conduct additional discovery is dependent upon petitioners' motion. It is, therefore, moot and denied.

The Commission will contact the parties to schedule a pretrial conference.

Dated at Madison, Wisconsin, this 8th day of January, 2002.


Thomas M. Boykoff, Commissioner

122 W. Washington Ave. ­ Suite 800

Madison, WI 53703


pc: Attorney Timothy C. Frautschi

Attorney Linda M. Mintener

1 Respondent disagrees with the name petitioners have assigned to their motion by stating "Since the discovery period was closed more than 2 years ago, the motion is more correctly one to 'reopen' the discovery period." (Dept.'s Brief, p. 4, fn. 5.) This is just one example of the parties' semantic battles which, in the Commission's opinion, diverts their attention and energy from the matters which they should be focusing on to move this litigation forward.

2 In the quoted sentence, the word "most" may denote less agreement than may be the fact in the overall thrust of the sentence.