Unless you have already read the June 2018 Wisconsin Lawyer^TM magazine, you may not be aware that the 2017 Wis. Act 235 (the Act) made comprehensive changes to the Wisconsin Rules of Civil Procedure, many of which have already taken effect.

Most, but not all, of the changes are meant to mirror the 2015 amendments to the Federal Rules of Civil Procedure. Additionally, per the testimony given by State Representative Mark Born, the purpose of this legislation is to “reduce litigation costs for small and large businesses, as well as state and local governments who must spend taxpayer dollars responding to abusive discovery practices and questionable lawsuits.”

These changes, while procedural, affects everyone who litigates construction disputes. Additionally, one of the changes is specific to construction dealing – a shortening of the statute of repose. This post summarizes the changes that are most likely to impact the practices of construction lawyers.

Stay of Discovery During Pendency of Dispositive Motions

If a party files a motion to dismiss, a motion for judgment on the pleadings, or a motion for more definite statement, new Wis. Stat. section 802.06(1)(b) provides that all discovery and other proceedings shall be stayed for a period of 180 days after the filing of the motion or until a ruling is made on it, whichever is sooner.

The stay will be granted unless a party can show good cause that “particularized discovery” is needed. In order to meet this burden, a party will need to narrowly tailor its requested discovery only to that which is necessary to respond to the pending motion.

Change to Scope of Discovery

We are all familiar with the phrase “reasonably calculated to lead to the discovery of admissible evidence.” It has long been part of Wis. Stat. section 804.01(2)(a) and guides the determination of whether information requested during discovery is relevant, and therefore discoverable.

Well, this phrase is no more. Instead, a new standard adopted by the legislature provides that

“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”¹

Moreover, a party can file a motion with the circuit court seeking to limit the breadth of discovery, and such a motion will be granted if the circuit court determines that:

1)The discovery sought is cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; or

2) The burden or expense of the proposed discovery outweighs its likely benefit or is not proportional to the claims and defenses at issue considering the needs of the case, the amount in controversy, the parties' resources, the complexity and importance of the issues at stake in the action, and the importance of discovery in resolving the issues.²

Wisconsin Discovery Rules Now Mirror Federal Rules

So, what are the results of these changes?

First, Wisconsin’s standards now mirror the Federal Rules of Civil Procedure, which should make the discovery process more consistent between federal and state courts.

Second, these changes allow the circuit court to keep discovery costs in line with the dollars in dispute. For instance, issuing a broad request for documents that requires the production of thousands of pages could be limited by the court if the amount in dispute is relatively insignificant.

Proponents of the changes will applaud the prevention of discovery “fishing expeditions,” while opponents of the changes will bemoan the heightened scrutiny they will face attempting to discover information they may consider relevant.

Limitations on Depositions, Interrogatories, and Requests for Documents

The new rules also limit the number of depositions in a case to 10, none of which may exceed seven hours (Wis. Stat. section 804.045), and the number of interrogatories to 25, including subparts (Wis. Stat. section 804.08(1)(am)).

For document requests (except those requests for patient health care records), vocational records, educational records, or any other similar records, the request shall be limited to “a reasonable time period, not to exceed 5 years prior to the accrual of the cause of action.”³ Each of these limitations can be adjusted by stipulation or court order.

Practically speaking, these changes will require parties to discuss depositions at the commencement of the case, and allocate the 10 permitted depositions accordingly. To the extent that 10 depositions are insufficient, the parties should be prepared to make a joint request to the court. It seems that the scheduling conference would be an appropriate time to do so.

Shortening of the Statute of Repose

The 10-year statute of repose found in Wis. Stat. section 893.89(1) received much attention after the tragic O’Donnell Park parking garage accident.

The new legislation shortens the statute of repose from ten to seven years following the date of a project’s substantial completion.

Additionally, if the alleged defect causes damage during the period beginning on the first day of the fifth year and ending on the last day of the seventh year after substantial completion, the time for commencing the action for the damages is extended for three years after the date on which the damages occurred. There remain exceptions for fraud, concealment, or misrepresentation.

When Do the Changes Take Effect?

Many of the changes became effective April 5, 2018.

However, the changes to the discovery rules first apply to causes of action filed on or after July 1, 2018, with the exception of the change to the scope of discovery contained in section 804.01(2)(a), which became effective April 5, 2018.

Courts expect that practitioners will be familiar with these changes, so it is important to carefully review the language of the Act.

You should share this information with legal assistants, paralegals, and any other staff who are regularly involved in preparing discovery requests.

Endnotes

¹ Wis. Stat. § 804.01(2)(a)

² Wis. Stat. § 804.01(2)(am)

³ Wis. Stat. § 804.09(2)(a)3