Judicial Council to discuss Wisconsin’s “clawback” rule

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At its next meeting, the Wisconsin Judicial Council plans to discuss whether recent changes to the state’s rules of civil procedure warrant any modifications of separate rules concerning inadvertent disclosures of privileged information during discovery proceedings.

The council, a 21-member body composed of legislators, judges, lawyers and other stakeholders in the state’s legal system, plans to meet at 9:30 a.m. on Friday in Room 328 NW in the state Capitol.

The council has been spending quite a bit of time recently studying changes the Wisconsin Legislature made earlier this year to the state’s discovery rules. Those changes adopted a new scope-of-discovery provision with a proportionality requirement that’s identical to the one found in the Federal Rules of Civil Procedure, set limits on filings of interrogatories and depositions and prevented parties from requesting certain records dating back to a set number years before a cause of action accrues.

Changes to court procedures are typically studied by the Judicial Council before being sent on the Legislature or Supreme Court. That was not the case, though, with the recent changes to the state’s discovery rules, which were embodied in Act 235.

The council is thus now in the unusual position of having to study the effects of changes that have already been passed. Separately, it’s considering whether other parts of federal civil rules should be added to Wisconsin’s.

At its meeting on Friday, the council plans to discuss whether the recent changes warrant any modifications to Wisconsin’s “clawback” rule, which was adopted by the Wisconsin Supreme Court in 2012 and is found in Wis. Stat. 804.01(7), 805. 07(d), 905.03(5) and 804.01(2)(c). That rule was adopted following a change to federal rules made in response to increases courts were seeing in the amounts of electronic data being exchanged in discovery proceedings.

The clawback rule, which mirrors the Federal Rules of Civil procedure, is invoked when privileged information is inadvertently released during discovery.

In general, privileged information is not admissible and not part of the scope of discovery proceedings unless parties have waived their right to keep it privileged or failed to take reasonable steps to remedy an accidental production of that information.

The clawback rule establishes a procedure that lets a disclosing party keep information privileged as long as reasonable steps have been taken to prevent disclosure and correct inadvertent disclosures.

The rule requires any party that discloses privileged information to notify opposing parties, who then must return, destroy or sequester the information. Follow @erikastrebel