Sept. 5, 2018 – What will the amendments made by 2017 Wis. Act 235 mean for your practice?
If you’re not sure, consider the advice of Jeffrey Mandell, co-author of the recently revised Wisconsin Civil Procedure Before Trial from State Bar of Wisconsin PINNACLE©: “Recent changes to Wisconsin’s civil procedure statutes governing discovery necessitate a thoroughly strategized approach from the outset.”
More specifically, Mandell – a partner at Stafford Rosenbaum LLP focusing on litigation and appeals – says:
“New standards circumscribing the scope of electronically stored information subject to production could shield key information from disclosure. Tighter limits on the number of interrogatories and depositions will require a more tailored, tactical path to gathering evidence. And the amendments will likely lead to increased motion practice and greater judicial involvement in discovery, which means that every request and every objection must be formulated with an eye toward how the court will regard it – and your client – if the issue reaches the judge.”
Wisconsin Civil Procedure Before Trial helps you understand pretrial procedure - from accepting a client through final pretrial hearings. Mandell and other experienced lawyers share insights into how to successfully represent your client leading up to trial.
New Limits on Discovery of Electronically Stored Information
In Act 235, the legislature raised the threshold for parties seeking to require production of their opponents’ electronically stored information (ESI).
As noted in Chapter 10 of Wisconsin Civil Procedure Before Trial, “[f]or actions filed on or after July 1, 2018, a party need not provide discovery of certain categories of electronically stored information ‘absent a showing by the moving party of substantial need and good cause, subject to a proportionality assessment’ under Wis. Stat. § 804.01(2)(am)2. Wis. Stat. § 804.01(2)(e)1g., created by 2017 Wis. Act 235.”
The categories of ESI subject to this new requirement include “substantially duplicative” backup data, legacy data, data that cannot be retrieved without transforming it into another form, and a catch-all of sorts, for data not available “in the ordinary course of business and that the party identifies as not reasonably accessible because of undue burden or cost.”
This language, while similar to that in Fed. R. Civ. P. 26, also contains significant differences, as discussed in Ryan M. Billings, Robert L. Gegios, and Melinda A. Bialzik in “Sweeping Changes to Rules of Civil Procedure,” Wisconsin Lawyer, June 2018:
“By making likely benefit versus cost and expense an independent test for whether material or information is discoverable, the Act imposes a new restrictive standard not found in the Federal Rules.”1
Thus, attorneys who follow Mandell’s suggestion to formulate all discovery requests and objections with an eye toward eventual judicial involvement must be aware that they will have little federal and Wisconsin precedent to rely on and present to the court.
Numeric Restrictions on Interrogatories and Depositions
For actions filed on or after July 1, 2018, the legislature has limited the number of interrogatories and depositions that a party can request:
-
Wis. Stat. sections 804.08(1)(am) (limiting interrogatories “to a reasonable number of requests, not to exceed 25 interrogatories, including all subparts”), and
-
Wis. Stat. section 804.045 (limiting depositions “to a reasonable number … not to exceed 10 depositions, none of which may exceed 7 hours in duration”).
These limitations are significant and may require changes to your traditional strategy in determining what interrogatories to ask and which people to depose (and perhaps streamlining questions to avoid exceeding the time restrictions). Depending on your relationship with opposing counsel, you might consider stipulating different terms or seeking assistance from the court for reasonable discovery.
These discovery restrictions might also prompt you to consider alternative sources of information, such as seeking police reports and other public records or witness interviews with affidavits, instead of depositions.
Automatic Stay of Discovery after Pleadings Motions
Under Act 235, the filing of a motion to dismiss, for judgment on the pleadings, or for a more definite statement automatically, stays all discovery for 180 days after the motion was filed or the date the court decides the motion, whichever comes first.
Depending on which party you represent, this rule might cause you to submit your discovery requests earlier in a case than you have typically done, or it might prompt you to file a motion to dismiss when answering the complaint.
Importance of Adopting a Case Strategy
These are but a few of the important changes adopted by Act 235.
The changes emphasize the importance of adopting a case strategy specific to the case from the beginning. By doing so, you can also avoid cumulative, duplicate, or disproportional discovery, which is also proscribed by the new rules.
How to Order
Wisconsin Civil Procedure Before Trial is available both in print for $219 for members and $269 for nonmembers, and online via Books UnBound®, the State Bar’s interactive online library.
Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price.
For more information or to place your order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.
Endnotes
1 See also Hon. Eugene A. Gasiorkiewicz & William C. Gleisner, “Please, Not So Fast! The Haste to Alter Rules of Civil Procedure,” Wisconsin Lawyer July 2018.
