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Tort-reform bill hits snag in Senate over ESI preservation provision

Legislation that would change some of the state’s civil-litigation rules appears to have stalled in the Wisconsin Senate.

Assembly Bill 773 – as well as a companion piece of legislation, Senate Bill 645 – proposes changes to various parts of state law, including the construction statute of repose, which contractors commonly invoke when defending themselves against personal-injury lawsuits alleging negligent design.

The statute of repose bars lawsuits involving injuries that occurred more than 10 years after a given construction project had come to an end. AB 773 proposes reducing that window to seven years.

The bill would also make changes to the rules governing discovery and the production and retention of electronically stored information.

The Assembly passed an amended version of the bill on Feb. 22, sending it to the Senate.

Meanwhile, the Senate version of the bill – SB 645 – is stalled in the Senate Judiciary and Public Safety Committee, where it already has had a public hearing.

Senate Bill 645 differs in several ways from AB 773. SB 645 would, for instance,  allow lawsuits involving injuries that occurred more than six years after the completion of a construction project instead of the seven proposed by AB 773. SB 645 also includes only some of the changes to the discovery rules proposed in AB 773.

Even with fewer proposed changes in SB 645, it’s the provisions concerning discovery rules that are holding the bill up in the Senate.

The chairman of the Senate judiciary committee, Sen. Van Wanggaard, a Republican from Racine, is refusing to put the bill to a vote because of language concerning the preservation of electronic documents and records during discovery proceedings. The provision in question states that parties would not have to preserve certain electronically stored information unless a requesting party had a court order showing a “substantial need” for it.

Wanggaard’s chief of staff, Scott Kelly, said the lawmaker is opposed to the provision because it would allow people to destroy evidence after a lawsuit had already started. Kelly said the legislation would accomplish supporters’ goals even without that provision, noting that there are other parts of the bill that would put limits on what information a party could request.

“One provision says you can’t discover this data without good cause,” Kelly said. “Another provision says you can’t go back more than five years without good cause. This part of the bill says that if that’s not good enough, you can still get rid of the data.”

He said Wanggaard has made it clear to his fellow lawmakers in the Senate and Assembly that he would not support any bill containing that particular provision.

“Wisconsin already has a safe-harbor provision in our rules on electronically stored information,” Kelly said. “If you accidentally destroy something during the normal course of business, you’re safe – no sanctions. This law basically obliterates that.”

AB 773 has a better chance of becoming law. Senate leaders expect their chamber’s next floor session to take place on March 20. The Senate could choose to take up the Assembly version of the bill then. However, the provision Wanggaard is opposed to is also in AB 773. Should the Senate amend that version of the bill, the legislation would still have to go back to the full Assembly for approval.

Assembly leaders, however, plan not to meet again this session after finishing their work on Feb. 22, although they have been in talks with Gov. Scott Walker about possibly returning to consider school-safety bills.

About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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