887.24 Depositions and discovery; for use in other states.

(1) Short title. This section may be cited as the Uniform Interstate Depositions and Discovery Act.

(2) Definitions. In this section:

(a) “Foreign jurisdiction" means a state other than Wisconsin.

(b) “Foreign subpoena" means a subpoena issued in a civil action under authority of a court of record of a foreign jurisdiction.

(c) “Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(d) “State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(e) “Subpoena" means a document, however denominated, issued under authority of a court of record requiring a person to do any of the following:

1. Attend and give testimony at a deposition, either oral or upon written questions.

2. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person.

3. Permit inspection of premises under the control of the person.

(3) Request for issuance of subpoena.

(a) Submission of foreign subpoena to clerk. To request issuance of a subpoena under this section by a clerk of circuit court, a party must submit the foreign subpoena to the clerk for the county in which discovery is sought to be conducted in this state, accompanied by the appropriate Wisconsin subpoena form which shall do all of the following:

1. List the Wisconsin county in which discovery is to be conducted as the court from which the subpoena is issued. Discovery is to be conducted in the county in which the person to whom the subpoena is directed resides. If the person is not a natural person, discovery is to be conducted in a county in which the person does substantial business. The subpoena shall list the address, including county of residence, for the witness.

2. Use the title of the action and its docket number from the foreign jurisdiction.

3. Incorporate the terms used in the foreign subpoena and include a copy of the foreign subpoena as an attachment.

4. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

5. Advise the person to whom the subpoena is directed as follows: “You have a right to petition the Wisconsin circuit court for a protective order to quash or modify the subpoena or provide other relief under s. 805.07 (3)."

(b) Duties of clerk of court. When a party submits a foreign subpoena to a clerk of circuit court in this state in compliance with par. (a), the clerk shall promptly sign and issue the Wisconsin subpoena for service upon the person to which the foreign subpoena is directed.

(c) Issuance by an attorney. Alternatively, a party may retain an attorney who is licensed or otherwise authorized to practice law in Wisconsin to sign and issue the Wisconsin subpoena as an officer of the court pursuant to s. 805.07. The subpoena must comply with par. (a) 1. to 5.

(d) Appearance. Requesting issuance of a subpoena under this subsection does not constitute an appearance in the courts of this state.

(4) Service and enforcement of subpoena. A subpoena issued under sub. (3) must be served and enforced in compliance with ch. 885. In issuing the subpoena, the clerk of circuit court may not collect a fee and should not create a case file, but the clerk may keep a record of the subpoenas issued. The individual responsible for service shall deliver a certificate of service or affidavit to the party that requested the subpoena. The party must retain the certificate of service or affidavit and furnish a copy to any party or to the deponent upon request.

(5) Deposition, production, and inspection. When a subpoena issued under this section commands a person to attend and give testimony at a deposition; produce designated books, documents, records, electronically stored information, or tangible items; or permit inspection of premises, the time and place and the manner of the taking of the deposition, the production, or the inspection must comply with Wisconsin's rules and statutes relating to discovery, including ch. 804.

(6) Application to court.

(a) Special proceedings. An application to the circuit court for a protective order or to enforce, quash, or modify a subpoena issued under this section will commence a special proceeding. Applications and all other filings in the special proceeding must comply with the applicable rules or statutes of this state, including service under s. 801.14 (2), and must be filed with the circuit court in the county in which discovery is to be conducted. Applications to enforce a subpoena must include proof of service of the subpoena.

(b) Fees; assignment of case number.

1. On filing an application under this section, a petitioner shall pay a fee as specified in ch. 814.

2. The circuit court in which the application is filed shall assign it a case number.

(c) Reasonable attorney fees and expenses. The court in its discretion may award any prevailing party its reasonable attorney fees and expenses.

(d) Appeals. A final order granting, denying, or otherwise resolving an application under this subsection is a final order for purposes of filing an appeal in accordance with s. 808.03 (1).

(7) Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

(8) Application to pending actions. This section applies to requests for discovery in cases pending on or filed after January 1, 2016.

History: 1993 a. 486; Sup. Ct. Order No. 13-16A, 2015 WI 70, 363 Wis. 2d xvii; 2017 a. 365 s. 111.

NOTE: Sup. Ct. Order No. 13-16A states “that the Uniform Comments (Comments to the Uniform Interstate Depositions and Discovery Act) and the Judicial Council Committee Notes are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."

2015 Judicial Council Committee Note (Sub. (2)): The definition of “Foreign subpoena" was modified to add the phrase “in a civil action." This language was added to clarify that this act only applies to civil cases.

2015 Uniform Comment (Sub. (2)): This Act is limited to discovery in state courts, the District of Columbia, Puerto Rico, the United States Virgin Islands, and the territories [or insular possessions] of the United States. The committee decided not to extend this Act to include foreign countries including the Canadian provinces. The committee felt that international litigation is sufficiently different and is governed by different principles, so that discovery issues in that arena should be governed by a separate act.

2015 Judicial Council Committee Note (Sub. (3)): The committee added the term circuit" to subsections (a) and (b) to clarify that the circuit court has jurisdiction of issuing subpoenas under this act.

2015 Uniform Comment (Sub. (3)): The term “Court of Record" was chosen to exclude non-court of record proceedings from the ambit of the Act. The committee concluded that extending the Act to such proceedings as arbitrations would be a significant expansion that might generate resistance to the Act. A “Court of Record" includes anyone who is authorized to issue a subpoena under the laws of that state, which usually includes an attorney of record for a party in the proceeding.

2015 Judicial Council Committee Note (Sub. (4)): Subsection 4 is similar to the Uniform Act; however it clarifies that it applies not only to a subpoena issued by a clerk of circuit court, but also to a subpoena issued by local counsel.

2015 Uniform Comment (Sub. (5)): The Act requires that the discovery permitted by this section must comply with the laws of the discovery state. The discovery state has a significant interest in these cases in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery request. Therefore, the committee believes that the discovery procedure must be the same as it would be if the case had originally been filed in the discovery state.

2015 Judicial Council Committee Note (Sub. (6)): Paragraph (a) was modified to clarify that every filing in the special proceeding must also be served on all parties to the special proceeding, including the witness. A summons is unnecessary to initiate the action and service by mail or facsimile is permitted pursuant to s. 801.14 (2). Applications to enforce a subpoena must include proof of service of the subpoena on the witness.

2015 Uniform Comment (Sub. (6)): The act requires that any application to the court for a protective order, or to enforce, quash, or modify a subpoena, or for any other dispute relating to discovery under this Act, must comply with the law of the discovery state. Those laws include the discovery state's procedural, evidentiary, and conflict of laws rules. Again, the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests, and this is easily accomplished by requiring that any discovery motions must be decided under the laws of the discovery state. This protects the deponent by requiring that all applications to the court that directly affect the deponent must be made in the discovery state.

2015 Judicial Council Committee Note (Sub. (8)): This subsection is the same as Section 8 of the Uniform Act, except "or filed after" is inserted to improve clarity.