We commend Ryan Billings, Robert Gegios, and Melinda Bialzik on their article in the June 2018 Wisconsin Lawyer, “Sweeping Changes to Rules of Civil Procedure.” However, their article overlooks aspects of the process that led to the adoption of 2017 Wis. Act 235 and fails to fully address the significant differences between Act 235 and the Federal Rules of Civil Procedure (FRCP) that the Act supposedly “mirrors.”
Previous Statutory Process for Creating or Amending Rules of Civil Procedure
Before enactment of Act 235, creating or amending Wisconsin’s Rules of Civil Procedure followed a deliberate and very careful process. A rule petition ordinarily would be filed with the Wisconsin Supreme Court by a third party or, often as not, by the Judicial Council. The supreme court usually would refer such a petition to the Judicial Council for study and evaluation.
Eugene A. Gasiorkiewicz, Mississippi 1974, is a Racine County Circuit Court judge. He practiced privately in state and federal civil litigation from 1975 to 2010. He is chair of the Wisconsin Judicial Benchbook-Civil Committee and is an elected judicial representative on the Judicial Council.
William C. Gleisner III, Marquette 1974, has been a trial lawyer for 44 years and has coauthored a Thomson Reuters treatise on e-discovery for 14 years. He has served as a member of the Judicial Council for 10 years and recently was elected as chair.
Often, months if not years of study would follow. Routinely, the Judicial Council or one of its committees would contact relevant stakeholders (persons affected by a proposed rule change) to learn their views regarding a proposed rule. Ultimately, the supreme court would schedule the rule petition for a public hearing and give notice to all persons who might be interested in that rule petition.
This methodology developed because of the close relationship that has historically existed between the Wisconsin Supreme Court and the Judicial Council. To begin with, Wis. Stat. section 751.12(1) places primary responsibility for regulating our court system’s rules of pleading, practice, and procedure within the supreme court’s jurisdiction. This is necessary because disputes involving all aspects of litigation are either regulated by decisions of the supreme court or sometimes directly decided by supreme court decisions.
The Judicial Council was created by the legislature in 1951. The Council has always had a special relationship with the supreme court. Pursuant to Wis. Stat. section 758.13(2)(a), the Council shall “observe and study the rules of pleading, practice and procedure, and advise the Supreme Court as to changes which will … promote a speedy determination of litigation upon its merits.”
In turn, Wis. Stat. section 751.12(5) specifies that when the supreme court creates rules regarding pleading, practice, and procedure in the courts of Wisconsin, the Council shall advise the supreme court. Wisconsin Statutes section 758.13(2)(f) gives the Council the power to make recommendations and advise the Wisconsin Legislature when the Council concludes that court rules can only be implemented by the legislature. Wisconsin Statute section 758.13(2)(g) gives the Council the power to make recommendations to the Governor when the Governor may have an interest in court rules.
Lawyers, judges, and legislators voluntarily devote hundreds of hours of nonpartisan work each year to fulfill the Council’s duties in an effort to provide court rules that will be fair to all sides in a case pending in our judicial system. More than that, Wis. Stat. sections 751.12 and 758.13 are designed to avoid constitutional conflicts between the courts and the legislature known as “separation of power” disputes.
It is certainly true that in recognition of the co-equal status of Wisconsin’s branches of government, Wis. Stat. section 751.12(4) permits the legislature to enact, modify, or repeal rules of pleading, practice, and procedure. However, the legislature is not a court instrumentality and counts few lawyers among its ranks right now.
The way in which the legislature has customarily interacted with the Judicial Council is through the Council’s legislative members: currently, Sen. Van Wanggaard, chair of the Senate Judiciary Committee, and Rep. Jim Ott, chair of the Assembly Judiciary Committee.
The importance of the Judicial Council and its responsibility for developing and promulgating rules of pleading, practice, and procedure for the Wisconsin court system suddenly changed in the fall of 2017 when the Council lost its funding and therefore lost its staff. However, the Council has continued to function and fully discharge its legislatively mandated duties through the voluntary efforts of its membership.
The Process that Created Act 235
Three months after the Council lost its funding, Act 235 originated in the legislature in response to pressures brought by special interests and lobbyists.1 The consideration of Act 235 was very swift, and it moved through the legislature at lightning speed. Senate Bill 645 and Assembly Bill 773 (which became Act 235) were first introduced in the legislature around Christmas 2017. The first hearing on Assembly Bill 773 took place before the Assembly Judiciary Committee on Jan. 4, 2018, and a hearing was also held before the Senate Judiciary Committee, on Jan. 30, 2018.
No serious effort was made to give notice to stakeholders or to seek broad based input from judges or lawyers regarding these bills.2 The legislature ignored requests that the Judicial Council be allowed to review and study Act 235.3 By April 4, 2018, Act 235 was signed into law. In other words, without any apparent effort to give notice to stakeholders who might oppose Act 235, the Wisconsin Rules of Civil Procedure (which have evolved over many decades) were radically changed in only three months.
The Process that Led to the 2015 Amendments to the Federal Rules
The problems which led to the 2015 amendments to the Federal Rules of Civil Procedure (the FRCP) arose from two main sources. First, as interpreted the original 2006 e-discovery rules placed a strong emphasis on the duty to preserve electronically stored information (ESI). Second, the preoccupation under the 2006 rules with preservation led to protracted satellite litigation, which punished failures to preserve ESI with draconian sanctions. Thus, discovery costs under the FRCP skyrocketed. However, there was no outcry for a quick fix. It took five years of study, hearings, and testimony before changes were made to the FRCP. Wisconsin on the other hand has never had a discovery crisis, but lobbyists insisted that the Wisconsin Rules of Civil Procedure had to be changed in three months.
The United States Judicial Conference is the principal policy-making body of the federal court system.4 One of its primary functions is to “carry on a continuous study of the operation and effect of the general rules of practice and procedure in use within the federal courts”5 (thus, it is the federal equivalent of the Judicial Council). In May 2010, a meeting was convened that has come to be known as the Duke Conference (at Duke University). The 2010 Duke Conference was just the beginning. The United States Judicial Conference and its committees commendably studied, for almost five years, the proposals that became the 2015 amendments to the FRCP and sought extensive input from the bench, lawyers, and the public.
According to the lengthy June 14, 2014 Report of the Judicial Conference Committee on Rules of Practice and Procedure, “[a]s expected, the proposed amendments generated significant response; the advisory committee received over 2,300 comments and held three public hearings. The public hearings – held in Washington, D.C.; Phoenix, Arizona; and Dallas, Texas – were well attended by the public and the bar, and the advisory committee heard testimony from more than 120 witnesses.”6
Act 235 Differs Significantly from the Federal Rules
While attorneys Billings, Gegios, and Bialzik did a good job of reviewing the provisions of Act 235, we disagree with their statement: “Many of the changes (in Act 235) mirror the 2015 amendments to the Federal Rules of Civil Procedure.” This is simply not correct. There are crucial unexplained differences between Act 235 and the FRCP. In fact, there are parts of Act 235 that have never existed in the FRCP. Take, for example, new Wis. Stat. section 802.06(1)(b), which provides that if there is a motion to dismiss (or a similar motion), discovery and all proceedings in an action shall be stayed for 180 days. New section 802.06(1)(b) was not well thought out. This is now part of Wisconsin’s Rules of Civil Procedure, which apply to all civil actions. How will this affect divorce cases? How will this work in actions involving injunctions? How will this affect third-party practice? How will this affect common-law writs such as mandamus?
Billings, Gegios, and Bialzik state that “breaking with the Federal Rules, [Act 235] provides that document requests shall be limited … to a reasonable time period, not to extend more than five years before the accrual of the cause of action.” This is not just a “break” with the FRCP. This is a complete departure from the FRCP and Wisconsin precedent, and amounts to an arbitrary de facto statute of limitation on evidence, regardless of relevance.7 Billings, Gegios and Bialzik acknowledge that:
“[U]nlike the Federal Rules, … Act  requires a court to perform an independent weighing of cost versus benefit, divorced from all other issues… The Federal Rules have never imposed that additional test, and it may be difficult for the requesting party to establish, standing alone, that the likely benefit of evidence it has never seen will outweigh its costs.”
Difficult, indeed. Billings, Gegios, and Bialzik state that “[t]he Act’s list of particular ESI that is not discoverable (legacy, backup data, and so on) has no counterpart in the Federal Rules and may place evidence admissible … in the federal courts outside the reach of discovery in Wisconsin state courts.” Why did Act 235 reject the carefully calibrated ESI provisions of the FRCP?
The foregoing are just some of the differences between Act 235 and the FRCP.
A Better Approach
If there are to be changes to Wisconsin’s Rules of Civil Procedure, and if the intent is to follow the FRCP, the better course of action is to adopt appropriate provisions of the FRCP as Wisconsin’s Rules of Civil Procedure. Unlike Act 235, the provisions of the FRCP have been extensively studied and evaluated. And it is important to adopt all relevant provisions of the FRCP.
For example, if adoption of the FRCP 26(b)(1) proportionality rule seemed warranted, then all related provisions in the FRCP also should have been adopted. If the Wisconsin Legislature followed this course, the Wisconsin Rules of Civil Procedure would contain the actual FRCP 26(b)(1) rule and all related provisions of the FRCP and Wisconsin litigants, lawyers, and judges would also have the benefit of all federal case law that has and will interpret FRCP 26(b)(1). If restrictions on the number of depositions or interrogatories is warranted, then the mandatory disclosure provisions of FRCP 26(a) also should be adopted. And if revision of the rules governing ESI is desired, it makes sense to adopt the FRCP ESI rules, rather than to create new rules out of whole cloth.
Act 235 is legislation that was largely created and espoused by lobbyists. This is a disservice to the bench, lawyers, and Wisconsin residents. If there is merit to Act 235, then there is no reason why it should not have been subjected to careful study by the Judicial Council, as envisioned by Wis. Stat. sections 751.12 and 758.13. Even if determined to take the lead on revising the Rules of Civil Procedure, the legislature should have permitted input from the Judicial Council and sought submissions from a broad spectrum of interested stakeholders, including judges and lawyers. At a minimum, if the FRCP was intended to be the model, then the legislature should have adopted the actual FRCP.
It is time for the bench, bar, and public to contact their legislators and insist that the legislature reexamine the civil procedure provisions of Act 235. At a minimum, the legislature should carefully compare the civil procedure provisions of Act 235 with the FRCP and explore amendments that will at least improve those provisions or, preferably, bring those provisions into greater conformity with the FRCP.
1 The Wisconsin Ethics Commission has identified “lobbying principals” who worked on Assembly Bill 773. As is clear from the Ethics Commission, of the 36 “lobbying principals” that did work on Assembly Bill 773, 30 were in favor of that bill. It is further clear from the Ethics Commission that those in favor were largely special interest groups, such as the American Family Insurance Group, American Tort Reform Association, U.S. Chamber Institute for Legal Reform, and Wisconsin Manufacturers & Commerce. The Ethics Commission lists just two lobbying principals in opposition to Assembly Bill 773. What has been said regarding Assembly Bill 773 can also be said regarding Senate Bill 645. One wonders how many more would have opposed those bills if adequate notice to stakeholders had been given.
2 As a matter of course, the Judicial Council would always seek broad stakeholder input regarding something as significant as the bills that became Act 235. More importantly, if a rule petition regarding Act 235 had been submitted to the Wisconsin Supreme Court, the court would have ordered a public hearing after giving notice to stakeholders. For example, in the case of Judicial Council Petition 17-03 concerning class actions, the Supreme Court on Aug. 21, 2017, sent out notices to over 60 interested individuals and organizations, including the U.W. and Marquette Law Schools. There is little evidence that the legislature sought input from more than a few stakeholders. What evidence does exist suggests that the legislature seemed most interested in input from stakeholders who were in favor of Act 235.
3 On Feb. 16, 2018, with two abstentions, the Judicial Council voted unanimously to adopt a formal resolution to the legislature, which read in part as follows:
“The Judicial Council respectfully asks the Judiciary Committees of both the Assembly and the Senate to provide the Judicial Council with the time and opportunity to carry out the Council’s statutory duty pursuant to Wis. Stat. 758.13 to review and vet Assembly Bill 773 and Senate Bill 645 and all future bills which address the rules of civil procedure and provide the Council’s position thereon to the Senate and Assembly Judiciary Committees.”
This resolution was transmitted to the Judiciary Committees of the Senate and the Assembly, as well as to the leaders of the Wisconsin Senate and Assembly. The Council never received a formal response to that resolution or an invitation to vet Assembly Bill 773 or Senate Bill 645.
4 See US Courts, Governance & the Judicial Conference. Formed by Congress in 1922, the Conference membership includes a number of senior U.S. federal judges. Id.
5 US Courts, 2010 Civil Litigation Conference.
6 Memo from Judge David G. Campbell, chair, Advisory Committee on Federal Rules of Civil Procedure, to Judge Jeffrey Sutton, chair, Standing Committee on Federal Rules of Civil Procedure (June 14, 2014), at B3.
7 This might also raise significant Constitutional issues.