Proposal seeks to simplify discovery from out-of-state cases

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The Wisconsin Supreme Court plans to hear a proposal Monday that proponents say would make it easier for parties to a civil case in another state to compel evidence or testimony from Wisconsin residents.

The proposal, shepherded by the Wisconsin Judicial Council, would rewrite Wisconsin’s law governing depositions and discovery for cases that are being filed and litigated in other state jurisdictions. If approved, the process for issuing a subpoena would be explained in more detail, according to the Judicial Council, and a judge would not have to get involved.

Judicial Council staff attorney April Southwick said attorneys have told her that civil litigators and defense attorneys have sought more discovery from out of state than in the past.

The Supreme Court will hold a public hearing for the proposal at 9:45 a.m. Monday.

Under the proposal, an attorney or party from out of state would issue and fill out a subpoena for Wisconsin that, aside from a few differences in the form, would still require the person named to comply in the same way. The attorney or party would then send the subpoena to the clerk of court’s office in the county where the Wisconsin resident lives and the clerk would approve it before it’s issued. There would be no charge for the clerk of court’s involvement.

The clerks would also not be required to make a record of the subpoena unless it was challenged. In that case, a Wisconsin judge would get involved, and that challenge would be heard under Wisconsin law.

The proposal was modeled after the Uniform Interstate Depositions and Discovery Act, which was put forth by the Uniform Law Commission in 2007. Since then, 33 states have adopted some form of the act, according to documents posted with the proposal.

Southwick said different Wisconsin counties have handled issuing subpoenas for out-of-state cases in different ways. Under the proposal, there is a set way for every county to adhere to the law, she said, as jurisdictions have often handled these situations in different ways.

“Basically, it is meant to be a more efficient process,” Southwick said. “In most cases there’s not a dispute, so why are we wasting judicial time and judicial resources?”

Southwick said she did not envision much change for Wisconsin attorneys, except when it comes to discovery and depositions from other states. Some state’s have adopted the UIDDA with reciprocity provisions, meaning parties can only take depositions and compel discovery under the act from states that have also adopted similar laws. That is not the case in Wisconsin, so an attorney would have to get a judge involved if this were to occur.

But she said she envisions that being used more often in cities such as Beloit, which is on the Illinois-Wisconsin border and could see lawsuits with witnesses or evidence in both states.

The State Bar’s Board of Governors voted unanimously to support the petition at its meeting last week. Bar spokeswoman Andrea Gage said in an email attributed to her that the proposal elicited little discussion before the BOG voted. Follow @eheisigWLJ