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Senate to vote on civil-litigation bill

The Wisconsin Senate will be taking up a bill that would make a number of changes to the state’s civil-litigation rules.

Assembly Bill 733 would modify the state’s construction statute of repose, which contractors commonly invoke as a defense in certain personal-injury lawsuits. The statute prevents injured plaintiffs from suing over negligent design for an injury that occurred more than 10 years after a project was substantially completed. A provision in AB 773 would shrink that window down to 7 years.

Under the bill, insurers would see a decrease from 12 percent to 7.5 percent in the interest rate they must pay on overdue claims.

The bill would also make changes to the state’s rules involving discovery.  That process can be burdensome and expensive for defendants, and the bill’s proponents say the changes could reduce legal costs for Wisconsin businesses.

The Senate will be taking up the bill at a floor session on Tuesday. Although the Assembly already passed the legislation, AB 773 still appears to have at least one more hurdle to leap over.

Sen. Van Wanggaard, one of the 18 Republicans who control the Senate, objects to language in the bill involving the preservation of electronically stored information.

The provision states that parties would not have to preserve certain electronically stored information unless whoever was requesting it had first obtained a court order showing a “substantial need” for it. The categories of electronically stored information a party would not have to preserve include data that couldn’t be retrieved without substantial additional programming or without putting the data into another format.

Wanggaard contends that part of the bill would give parties license to destroy relevant evidence even after a lawsuit had already started.

Proponents of the bill, however, contend that Wangaard’s concerns are unwarranted.

James Friedman, a civil-litigator with Godfrey & Kahn’s Madison office, says that companies he represents have document-retention policies that require them to download everything off their employees’ hard drives onto backup tapes, keep the tapes for some time for disaster-recovery purposes, then write over them. But once they learn a lawsuit might be filed, companies stop writing over the tapes – and end up having to store years’ and years’ worth of them.

“Companies right now have reasonable document retention policies,” Fried said. “What this legislation would do is say you can keep doing that – not that you can burn the warehouse down.”

Of the types of electronically stored information AB 773 would allow to be destroyed, all of it would fall into narrowly defined categories, he said. Companies would still have to retain emails, Word documents and other data used in the course of business.

“Those don’t fit within any of those categories,” Friedman said. “We’re talking about old data or duplicative data that is taking up space, taking up time and taking up money.”

Although the provision was not taken from the most recent Federal Rules of Civil Procedure, it mirrors what many federal judges are allowing parties to do, Friedman said.

Wanggaard, who is also the chairperson on the Senate Committee on Judiciary and Public Safety, nonetheless introduced an amendment on Monday that would strip the provision from AB 773. His committee on Wednesday gave AB 773, as modified by Wanggaard’s amendment, a recommendation for adoption. Senate leaders later placed AB 773 on their calendar for their meeting Tuesday.

Wanggaard’s amendment could prove to be a bill killer. If Lawmakers choose to pass AB 773 with the amendment, they would have to send it back to the Assembly. That chamber’s last meeting for the current legislative session was Feb. 22, although its leaders recently announced plans to return for a special section to consider bills to make schools safer.

On the other hand, the senate could vote to strip the amendment from the bill, eliminating the need to send the it back to the Assembly.

About Erika Strebel, erika.strebel@wislawjournal.com

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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