May/June 2018 Issue

Also in this issue: New Laws Modify Requirements for Publishing Legal Notices     |     PSCW Sets New Focus on Energy Funding Parameters     |     OEI Launches Energy Innovation Grant Program

Discovery Law Changes: What You Need To Know

05.28.18

On July 1, 2018, new discovery rules are to take effect in Wisconsin by virtue of Assembly Bill 773 which was signed into law by Governor Walker as 2017 Wisconsin Act 235 (the ​“Act”). Specifically, the Act applies to lawsuits that are filed after July 1, 2018. The Act’s changes are the biggest to Wisconsin’s Rules of Civil Procedure since the 1970’s. Those changes include the following:

(1) Changes to the Scope of Discovery

The Act, modeled after the Federal Rules of Evidence, requires discovery to be proportional. A party can obtain discovery of any non-privileged matters that are relevant to its claims or defenses and proportional to the needs of the case. When considering proportionality, courts may consider 

• The importance of the issues at stake in the action; 
• The amount in controversy; 
• The parties’ relative access to relevant information; 
• The parties’ resources; 
• The importance of the discovery in resolving the issues; and 
• Whether the burden or expense of the proposed discovery outweighs its likely benefit. 

(2) Automatic Stay of Discovery

The Act provides that when a party files a motion to dismiss, a motion for judgment on the pleadings or a motion for a more definite statement, all discovery and other proceedings must be stayed for the shorter of 180 days or the date the motion is decided. If discovery related to the pending motion is necessary, the court can allow that discovery. 

(3) Mandatory Disclosure of Third-Party Litigation Financing

The Act requires a party to disclose to other parties in the lawsuit any agreement under which a person, other than an attorney who is receiving a contingency fee, has a right to receive compensation from a judgment or settlement. 

(4) Limits on E‑Discovery

The Act provides that absent a showing of substantial need or good cause, a party is not required to disclose electronically stored information (“ESI”) if it: 

• Cannot be retrieved without substantial additional programming or transferring it to another form before search or retrieval; 
• Is backup data that is substantially duplicative of more accessible data; 
• Is legacy data from obsolete systems; or 
• Is data that is not available in the ordinary course of business and is not reasonably accessible because of undue burden or cost. 

(5) Limits on Discovery Methods 

The law limits the number of interrogatories to 25 inclusive of all subparts, limits the number of depositions to 10, with each not to exceed seven hours, and limits the time frame for requests for production of documents to a reasonable time period, not to exceed five years before the cause of action arose with exceptions in personal injury cases. — Kate Harrell