The Wisconsin discovery statute, Chapter 804 of the Wisconsin Statutes, lets parties in a civil case obtain any nonprivileged information that is relevant to a claim or defense and proportional to the needs of the case, using five tools with mostly 30-day response deadlines and real penalties for noncompliance.1Wisconsin State Legislature. Wisconsin Code 804.01 – General Provisions Governing Discovery Information doesn’t have to be admissible at trial to be discoverable, but it does have to clear the proportionality bar, and the consequences for ignoring the rules range from paying the other side’s attorney fees to losing the case outright.
What You Can Ask For
The scope is broad but not unlimited. Discovery covers any nonprivileged matter relevant to any party’s claim or defense, measured against six proportionality factors: the importance of the issues, the amount in controversy, each side’s access to the information, the parties’ resources, how important the discovery is to resolving the dispute, and whether the burden outweighs the likely benefit.1Wisconsin State Legislature. Wisconsin Code 804.01 – General Provisions Governing Discovery
A court must cut back discovery when the requests are cumulative or duplicative, when the same information is available from an easier source, or when the expense outweighs the likely benefit given what’s actually at stake.1Wisconsin State Legislature. Wisconsin Code 804.01 – General Provisions Governing Discovery
Two categories sit outside the scope regardless of how relevant the material is. Attorney-client privilege protects confidential communications between lawyers and their clients. The work-product doctrine shields materials prepared in anticipation of litigation, though a court can override it when the requesting party shows substantial need and no practical way to get the information elsewhere.1Wisconsin State Legislature. Wisconsin Code 804.01 – General Provisions Governing Discovery
The Five Discovery Tools
Chapter 804 provides five methods: depositions (oral or written), interrogatories, requests for production of documents or things, physical and mental examinations, and requests for admission. For most of these, there’s no cap on how often a party can use them unless the court orders otherwise.1Wisconsin State Legislature. Wisconsin Code 804.01 – General Provisions Governing Discovery
Interrogatories
Interrogatories are written questions one party sends another, answered in writing under oath. The responding party has 30 days to answer. A defendant gets 45 days from the date the summons and complaint were served. Each party is limited to 25 interrogatories, counting subparts, unless the parties agree otherwise or the court approves a different number consistent with proportionality.2Wisconsin State Legislature. Wisconsin Code 804.08 – Interrogatories to Parties
Answers must be complete and truthful. Objections must state specific grounds in place of the answer. An evasive or incomplete answer is treated the same as no answer at all, which opens the door to a motion to compel.3Wisconsin State Legislature. Wisconsin Code 804.12 – Failure to Make Discovery Sanctions
Requests for Production
These requests demand documents, electronically stored information, and physical items. The responding party has 30 days to serve a written response, or 45 days for a defendant served with the complaint. For each item or category, the response must either agree to produce the materials or explain the specific grounds for objection.4Wisconsin State Legislature. Wisconsin Code 804.09 – Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
When documents are withheld on privilege grounds, the withholding party should identify what was withheld and why. Otherwise the other side and the court have no way to test whether the privilege claim holds up.
Requests for Admission
Requests for admission ask a party to admit or deny specific facts, the application of law to facts, or the genuineness of documents. The deadline is the one most worth circling: a matter is automatically deemed admitted if the party doesn’t serve a written answer or objection within 30 days, or 45 days for defendants after service of the complaint. Miss it, and you’ve conceded the point.5Wisconsin State Legislature. Wisconsin Code 804.11 – Requests for Admission
A denial has to fairly address the substance of what’s asked. A party can’t just plead ignorance unless it has made reasonable inquiry and the available information is genuinely insufficient. A party who thinks a request raises a real trial issue cannot object on that ground alone; the party has to deny the matter or explain why it can’t truthfully admit or deny it.5Wisconsin State Legislature. Wisconsin Code 804.11 – Requests for Admission
If a party denies a matter without justification and the requesting party later proves it at trial, the court can order the denying party to pay the reasonable costs of that proof, including attorney fees.
Depositions
Depositions are live, under-oath questioning of a witness, recorded by a court reporter or on video. Any party can depose any person once the action has started, including opposing parties and non-party witnesses. Non-parties can be compelled by subpoena; for a party witness, the deposition notice itself has the force of a subpoena.6Wisconsin State Legislature. Wisconsin Code 804.05 – Depositions Upon Oral Examination
The party scheduling the deposition must give reasonable written notice to every other party, stating the time, place, and identity of each person to be examined. If the deponent is an organization, the notice can describe the topics, and the organization must designate someone knowledgeable to testify on its behalf. A deposition notice can also require the witness to bring documents to the session, under the same rules that govern a standalone production request.6Wisconsin State Legislature. Wisconsin Code 804.05 – Depositions Upon Oral Examination
Lying under oath in a deposition is a Class H felony. Perjury in Wisconsin carries up to six years in prison, a fine of up to $10,000, or both, and later correcting or retracting the false statement is not a defense.7Wisconsin State Legislature. Wisconsin Code 946.31 – Perjury8Wisconsin State Legislature. Wisconsin Code 939.50 – Classification of Felonies
Rules for Electronic Evidence
Chapter 804 carves out certain hard-to-reach categories of electronically stored information. A party is not required to produce ESI that cannot be retrieved without significant additional programming, backup data that duplicates more accessible sources, legacy data from obsolete systems, or any data the producing party identifies as not reasonably accessible due to undue burden or cost, unless the requesting party shows substantial need and good cause.
There is also a safe harbor for routine data loss. A court generally cannot sanction a party for failing to provide ESI lost through the routine, good-faith operation of an electronic information system, absent exceptional circumstances.3Wisconsin State Legislature. Wisconsin Code 804.12 – Failure to Make Discovery Sanctions The phrase doing the work is “good faith.” If a party knows litigation is likely and lets relevant data get overwritten anyway, the safe harbor won’t save it.
Preserving Evidence Before and During Litigation
The duty to preserve evidence attaches when a party knows, or should know, that litigation is a distinct possibility and that certain evidence could be relevant to that litigation. Once triggered, the obligation covers paper documents, electronic files, physical objects, and anything else bearing on the claims. Failing to issue a legal hold or otherwise preserve relevant materials opens the door to spoliation sanctions.
Wisconsin courts treat intentional and negligent spoliation differently. Deliberate destruction can draw a negative inference instruction, which tells the jury it may assume the destroyed evidence would have been unfavorable to the party who destroyed it. That instruction is reserved for intentional conduct, not mere negligence. Dismissal, the most severe sanction, requires a finding of egregious conduct, meaning a conscious attempt to affect the outcome of litigation or a flagrant disregard of the judicial process.
Pushing Back: Objections and Protective Orders
When a request is improper, the responding party may object, but the objection has to state specific grounds. Blanket labels like “overly broad” or “unduly burdensome” without any supporting explanation rarely survive scrutiny.
For requests that threaten to impose undue burden, invade privacy, or expose genuinely confidential information, a party can ask the court for a protective order. The requesting party must show good cause. Courts have wide discretion to tailor the order to the situation: prohibiting certain discovery entirely, limiting the scope of questioning, restricting who may view sensitive materials, or requiring documents to be filed under seal. Protective orders come up often around trade secrets, proprietary business data, and medical records.
When the Other Side Won’t Comply: Motions to Compel
If informal efforts to resolve a dispute fail, the requesting party can file a motion to compel under Section 804.12. The motion is available when a deponent refuses to answer a question, when a party fails to respond to interrogatories, or when a party doesn’t produce requested documents.3Wisconsin State Legislature. Wisconsin Code 804.12 – Failure to Make Discovery Sanctions
The fee rule catches people off guard. If the court grants the motion, it must order the party or attorney whose conduct forced the motion to pay the moving party’s reasonable expenses, including attorney fees, unless the resistance was substantially justified. If the court denies the motion, the rule flips: the moving party pays the opposing side’s costs unless the motion was substantially justified. When the motion is granted in part and denied in part, the court splits expenses as it sees fit.3Wisconsin State Legislature. Wisconsin Code 804.12 – Failure to Make Discovery Sanctions Stonewalling discovery and filing meritless motions both cost money.
Sanctions for Disobeying a Discovery Order
Once a party has defied a court order compelling discovery, the penalties get much more serious. The court can impose any combination of sanctions it considers just, including:
- Deeming certain facts established in favor of the party that sought the discovery, effectively deciding disputed issues without evidence.
- Barring the noncompliant party from supporting or opposing specific claims, or from introducing certain evidence at trial.
- Striking all or part of the offending party’s pleadings, staying the case until the order is obeyed, dismissing the action, or entering a default judgment.
- Treating the failure as contempt of court, which carries its own penalties.
On top of any of these, the court must also require the noncompliant party or its attorney, or both, to pay the reasonable expenses caused by the failure, including attorney fees, unless the failure was substantially justified.3Wisconsin State Legislature. Wisconsin Code 804.12 – Failure to Make Discovery Sanctions
Dismissal is the ceiling, not the default. In Hudson Diesel, Inc. v. Kenall, the trial court dismissed a complaint based on discovery violations, and the Wisconsin Court of Appeals reversed. The violations were not intentional or egregious, the withheld information was peripheral to the main dispute, and less severe sanctions could have fixed the problem. Wisconsin courts expect sanctions to match the misconduct, with dismissal held in reserve for the worst cases.