Feb. 21, 2018 – Your goals: Discovering unknown facts. Narrowing issues for trial. Preserving evidence for trial. Obtaining testimony for impeachment at trial.
Your tools: Interrogatories. Depositions. Requests for admission. Requests to inspect documents things, and places. Physical, mental, and vocational examinations. And informal discovery.
Your guidebook: Wisconsin Discovery Law and Practice in Wisconsin, from State Bar of Wisconsin PINNACLE©.
Begin Informally – and Start with Your Own Client
If you want to find the primary rules governing discovery, turn to the Wisconsin Rules of Civil Procedure, and you’ll see the official requirements for and limitations of the various permissible formal discovery methods.
But before embarking on formal discovery – and to establish grounds for a case before even commencing an action – consider how to gain information about the case informally.
“[B]egin the discovery process with [your] own client, requesting that the client produce for inspection the documents that an opposing party can be expected to seek.”1
Learn When to Use Formal Discovery Tools
Learn from Attorneys Who Have Honed Their Discovery Skills
The following attorneys generously volunteered their time and expertise in preparing updates for the 2017-18 Discovery revision:
- Melinda A. Bialzik, Ryan M. Billings, and Robert L. Gegios, Kohner, Mann & Kailas, S.C.
- Donald A. Daugherty Jr., Godfrey & Kahn, S.C.
- Alec Dobson and Shane T. Roeber, Davis & Kuelthau, s.c.
- Timothy W. Feeley, Hall, Render, Killian, Heath & Lyman, P.C.
- Robert L. Jaskulski, Habush Habush & Rottier S.C.
- David E. McFarlane, Bell, Moore & Richter, S.C.
- Deborah C. Meiners and Barret V. Van Sicklen, DeWitt Ross & Stevens S.C.
- Chelsey B. Metcalf, Foley & Lardner LLP
- Matthew Stippich, Digital Intelligence
“Written discovery from an opposing party usually is the most efficient initial form of adverse discovery, especially when the extent of relevant information, including documents in the other party’s possession, is uncertain.”2
Taking advantage of written discovery at an early stage can help identify sources of information for later discovery, and give an attorney additional background to prepare questions for an eventual oral deposition, for example.
Sharpen Your Discovery Techniques
Once you’ve decided to conduct an oral deposition, and determined preliminary matters such as its date, time, and location, how should you prepare?
Consider the types of questions that you’ll want to ask – leading or open-ended, for example. At the deposition itself, be sure to listen to the deponent’s answers. Repetitious questions aren’t necessarily harassing and may actually be needed if the deponent continues to give nonresponsive answers.3
Be aware of the effect that the pace of questioning, and periods of silence, might have on the deponent’s responses.4 And anticipate the opponent’s substantive objections by preparing possible responses if such objections are raised.5
Know When to Bring in the Experts
Perhaps as crucial as any formal discovery tool is the role of experts in the discovery process, particularly with regard to electronically stored information (ESI):
“If electronic evidence is implicated, the first step is to determine very honestly whether counsel is competent to protect either himself or herself and the client. If not, counsel should either seek assistance from a competent colleague or retain expert assistance to assess the situation immediately.”6
The authors of Discovery Law not only describe the circumstances in which counsel should enlist an expert’s help with electronic discovery but also explain the factors the court might consider in determining the admissibility of an expert’s testimony.
Stay Up to Date on Recent Developments
The 2017-18 revision to Wisconsin Discovery Law and Practice discusses recent developments, including a significant Wisconsin Supreme Court ruling on the circuit court’s authority to appoint and delegate pretrial responsibilities to a referee. The revision also provides ongoing guidance from federal courts on discovery-related matters, such as the time for giving notice of a deposition, sanctions for using “boilerplate” objections to discovery, and production and preservation of ESI. Also added to the revised edition are a new section on using experts in e-discovery disputes and a new appendix containing resources for deposing an expert witness.
Wisconsin Discovery Law and Practice, newly revised in a 2017-18 edition – including updated sample forms – is available both in print and online via Books UnBound®, the State Bar’s interactive online library. The print book costs $219 for members and $269 for nonmembers (both plus tax and shipping).
Online access to this resource through Books UnBound costs $159 for members and $199 for nonmembers (single-user prices; call for firm pricing). 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 an order, visit WisBar’s Marketplace, or call the State Bar at (800) 728-7788 or (608) 257-3838.
1 Robert L. Gegios & Ryan M. Billings in Melinda A. Bialzik et al., Wisconsin Discovery Law and Practice § 1.37 (5th ed. 2017).
3 See Alec Dobson & Shane T. Roeber in Bialzik et al., supra note 1, § 3.98.
4 Id. § 3.101.
5 Id. § 3.104.
6 Robert L. Gegios et al. in Bialzik, supra note 1, § 7.26.