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December 10, 2015Client Alert

The Issuance of Discovery, Subpoenas and the Process to Take Depositions in Wisconsin for Use in Other States is About to Change

Effective January 1, 2016, Wis. Stat. § 887.24 will be repealed and recreated to incorporate the Uniform Interstate Depositions and Discovery Act (UIDDA). The UIDDA is a uniform act patterned after Federal Rule of Civil Procedure 45 that allows out-of-state litigants to obtain third-party discovery in states that have enacted the UIDDA. The act is limited to discovery in state courts, the District of Columbia, Puerto Rico, the United States Virgin Islands and territories of the United States. 

This means out-of-state litigants that want to issue discovery, subpoenas or take depositions in Wisconsin for use in other states will, for the first time, no longer be required to retain a licensed Wisconsin attorney to help issue the subpoena. This does not mean, however, that out-of-state litigants should not consider still using a licensed Wisconsin attorney. Even with this change, a licensed Wisconsin attorney will still be required if the out-of-state litigant needs to move to enforce the subpoena, or if the subpoenaed Wisconsin resident files an application to quash, modify or for a protective order related to the subpoena.

Going forward, a Wisconsin clerk of circuit court may issue a subpoena for an out-of-state litigant who has submitted a properly issued foreign subpoena to the clerk in the county in which the discovery is sought. The foreign subpoena must be accompanied by an appropriate Wisconsin subpoena form which shall:

1.    List the Wisconsin county where discovery is to be conducted as the court from which the subpoena is issued;

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 attorneys of record in the proceeding to which the subpoena related and any party not represented by an attorney; and

5.    Advise the person to whom the subpoena is directed that “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).”

When a party complies with these requirements and submits a foreign subpoena to a clerk of circuit court, the clerk is required to promptly sign and issue the Wisconsin subpoena for service upon the person to which the foreign subpoena is directed. The out-of-state litigant is not required to pay a filing fee for the issuance of the subpoena and, unlike before, the clerk of circuit court should not open a new case. 

Deposition and document production subpoenas must both comply with Wisconsin’s rules and statutes relating to discovery, including Wis. Stat. ch. 804. The subpoena also needs to be served and enforced in accordance with Wisconsin law, specifically Wis. Stat. ch. 885. 

If a Wisconsin resident wants to move to quash, modify or for a protective order related to a subpoena issued by an out-of-state litigant under Wis. Stat. § 887.24, the resident must file an application to the issuing circuit court, which will commence a special proceeding in which the resident will be considered the petitioner. The same procedure is required if an out-of-state litigant needs to move to enforce the subpoena if the subpoenaed Wisconsin resident does not comply. A fee will be charged for filing the application; however, the court has the discretion to award the prevailing party its reasonable attorney fees and expenses. A final order granting, denying or otherwise resolving an application is a final order for purposes of filing an appeal pursuant to  Wis. Stat. § 808.03(1). 

Importantly, a licensed Wisconsin attorney will be required in order to file, respond or appear in court related to an application to enforce, quash, modify or for a protective order concerning a subpoena issued pursuant to Wis. Stat. § 887.24. Therefore, while an attorney not licensed to practice law in Wisconsin may request the issuance of a subpoena under section 887.24(3) for an out-of-state litigant without being deemed to practice law in Wisconsin (under the Act requesting issuance of a subpoena does not constitute an appearance in the courts of Wisconsin), they will not be able to file or defend an application related to the subpoena.

One way to avoid this issue is to retain a Wisconsin licensed attorney to sign and issue the subpoena as an officer of the court. Any subpoenas issued by a Wisconsin attorney for use in other states must contain the same statutorily required information that is required for subpoena forms submitted to a clerk of circuit court. 

While the UIDDA is intended to be applied and construed uniformly among the states, time will tell how Wisconsin courts interpret the statute, including how Wisconsin courts will respond to out-of-state litigants that cause subpoenas to be issued that fail to comply with Wisconsin law or overreach in their discovery requests to Wisconsin residents. 

The full text of Wis. Stat. § 887.24 as repealed and created can be found here

The full text of the Wisconsin Supreme Court’s July 7, 2015 order to amend Wis. Stat. § 887.24 can be found here.   

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