885.44 Videotape deposition procedure.

(1) Official. Videotape depositions may be taken by persons authorized by s. 804.03.

(2) Required information. The deposition shall begin by the operator stating on camera:

(a) The operator's name and business address;

(b) The name and business address of the operator's employer;

(c) The date, time and place of the deposition;

(d) The caption of the case;

(e) The name of the witness; and

(f) The party on whose behalf the deposition is being taken. Counsel shall identify themselves on camera. The person before whom the deposition is taken shall then identify himself or herself and swear or affirm the witness on camera. At the conclusion of the deposition the operator shall state on camera that the deposition is concluded. When the length of the deposition requires the use of more than one tape, the end of each tape and the beginning of each succeeding tape shall be announced on camera by the operator.

(3) Camera. More than one camera may be used, either in sequence or simultaneously.

(4) Timing of deposition. The deposition shall be timed by a date-time generator which shall show continually each hour, minute and second of each tape of the deposition.

(5) Objections. Objections may be made as provided in s. 804.05 (4) (b).

(6) Submission to witness. After a videotape deposition is taken, submission of the videotape to the witness for examination is deemed waived unless such submission is requested by the witness.

(7) Certification of original videotape deposition. The official before whom the videotape deposition is taken shall cause a written certification to be attached to the original videotape. The certification shall state that the witness was fully sworn or affirmed by the official and that the videotape is a true record of the testimony given by the witness. If the witness has not waived the right to a showing and examination of the videotape deposition, the witness shall also sign the certification.

(8) Certification of edited videotape deposition. The official who edits an original videotape deposition shall attach a written certification to the edited copy of the videotape deposition. The certification shall state that the editing complies with the rulings of the court and that the original videotape deposition has not been affected by the editing process.

(9) Motions on objections. Motions for ruling upon objections shall be made with the court within 30 days of recording of the videotape deposition or within a reasonable time stipulated by the parties.

(11) Ruling on objections. In ruling on objections the court may view the entire videotape or pertinent parts thereof, listen to an audiotape of the videotape sound track, or direct the objecting party to file a partial transcript. The court shall make written rulings on objections and an order for editing. Copies of the court's rulings and order for editing shall be sent to the parties and the objecting witness.

(12) Editing alternatives.

(a) The original videotape shall not be affected by any editing process. In its order for editing the court may do any of the following:

1. Order the official to keep the original videotape intact and make an edited copy of the videotape that deletes all references to objections and objectionable material.

2. Order the person showing the original videotape at trial to suppress the objectionable audio portions of the videotape.

3. Order the person showing the original videotape at trial to suppress the objectionable audio and video portions of the videotape.

(b) If the court enters an order under par. (a) 2., it shall, in jury trials, instruct the jury to disregard the video portions of the presentation when the audio portion is suppressed.

(c) If the court enters an order under par. (a) 3., it shall, in jury trials, instruct the jury to disregard any deletions apparent in the playing of the videotape.

(13) Copying and transcribing.

(a) Upon the request of any party or other person authorized by the court, the official shall provide, at the cost of the party or person, a copy of a deposition in the form of a videotape, a written transcript, or an audio recording.

(b) When an official makes a copy of the videotape deposition in the form of a videotape or audio recording, the official shall attach a written certification to the copy. The certification shall state that the copy is a true record of the videotape testimony of the witness.

(c) When an official makes a copy of the videotape deposition in the form of a written transcript, the official shall attach a written certification and serve the transcript pursuant to s. 804.05 (7).

(14) Objections at trial. Objections made at trial which have not been waived or previously raised and ruled upon shall be made before the videotape deposition is presented. The trial judge shall rule on such objections prior to the presentation of the videotape. If an objection is sustained, that portion of the videotape containing the objectionable testimony shall be deleted in the manner provided in sub. (12).

History: Sup. Ct. Order, 67 Wis. 2d vii, xiii (1975); 1975 c. 218; Sup. Ct. Order, 141 Wis. 2d xxxv (1987); 1999 a. 85.

Judicial Council Committee's Note, 1975: Subs. (2) through (5) set out the mechanical procedures for the taking of a videotape deposition. These procedures are included to ensure uniformity throughout Wisconsin. In addition, they ensure proper identification of the contents of a videotape deposition and protect against tampering. Sub. (5) is not intended to affect the provisions in other statutes on objections but is included as part of videotape deposition procedure to facilitate possible editing. It is based on a similar Ohio rule.

Sub. (6) contemplates that, as with regular depositions, the large majority of witnesses at a videotape deposition do not desire to review the deposition upon its completion.

Subs. (7) and (8) set out the procedure for certification of a videotape deposition. Certification by the official taking the deposition must also be made of a copy or audio recording of a videotape deposition and of an edited version of a deposition.

Sub. (9) allows for an expansion of time for motions on videotape objections if the parties stipulate to the additional time.

Sub. (11) requires that any editing of a videotape deposition required by a court ruling favorably on an objection can only be done by a court order. It also requires that the parties and the objecting witness receive copies of both the court's ruling on objections and order for editing.

Sub. (12) sets out the alternatives that the court may use in ordering editing of a videotape deposition. It is included to facilitate the most expeditious and least expensive method of editing.

Sub. (13). Access to videotape recordings after filing is by court order and subject to terms prescribed by the court in order to protect the integrity of such recordings.

Sub. (14). Objections to a videotape deposition not previously resolved that are made at trial must be made prior to the actual showing of the videotape at the trial. This procedure assures timely raising of objections. [Re Order effective Jan. 1, 1976]

Judicial Council Note, 1988: Videotape depositions, like other discovery documents, are no longer required to be filed in court. See s. 804.01 (6), Stats. [Re Order effective Jan. 1, 1988]