Wisconsin Adopts the Uniform Interstate Depositions and Discovery Act (UIDDA)
Effective January 1, 2016, Wisconsin adopted aspects of the Uniform Interstate Deposition and Discovery Act (the "UIDDA"), a model act developed by the Uniform Law Commission to help streamline the once-complex process of conducting out-of-state discovery for a matter venued in state court. The new statute, Wis. Stat. § 887.24, embodies significant aspects of the UIDDA and applies to litigants in state court outside of Wisconsin that seek to conduct discovery in Wisconsin. The UIDDA was originally promulgated in 2007 in an effort to standardize the process for taking out-ofstate discovery and harmonize it with Federal Rule of Civil Procedure 45. The Act has been steadily adopted in various iterations by the majority of states since 2007.1 Despite the uniformity created by the UIDDA, however, prudent practitioners should still check the requirements of both the state where their case is venued and the state where they wish to seek discovery because some individual states (like Wisconsin) have elected to customize the provisions in the model act prior to its adoption. This Article provides an overview of the Act.
Case Pending Out-of-State in State Court
Newly-adopted Wis. Stat. § 887.24 provides that a party in a state court proceeding venued outside of Wisconsin may conduct discovery in Wisconsin via one of two routes:
Option 1: The party may submit a valid foreign subpoena to the clerk for the county in which discovery is sought to be conducted in this state, accompanied by the appropriate subpoena form. The subpoena form shall include the following:
(1) the Wisconsin county in which the discovery is sought and the court from which the subpoena is issued; (2) the title of the action and its docket number from the foreign jurisdiction; (3) the terms used in the foreign subpoena and a copy of the foreign subpoena as an attachment; (4) the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel; and (5) language that advises the subject of the subpoena that "You have a right to petition the Wisconsin circuit court for a protective order to quash or modify the subpoena or provide other relief under s. 805.07(3)."2 The statutory notes make clear that to "modify" a subpoena means to alter its terms including, for example, the date, time, or location of a deposition.
When a party complies with these requirements in Wis. Stat. § 887.24(3)(a), the clerk "shall promptly sign and issue the Wisconsin subpoena for service upon the person to which the foreign subpoena is directed."3 The clerk of circuit court will not create a case file when discovery is initiated nor collect a fee.
Option 2: Alternatively, a party may retain an attorney who is licensed or otherwise authorized to practice law in Wisconsin to sign and issue the Wisconsin subpoena as an officer of the court pursuant to Wis. Stat. § 805.07. The subpoena must, of course, comply in all other respects with abovelisted requirements for the form of the subpoena. This provision is an important deviation from the Uniform Rule as it provides that if a party to the out-of-state proceeding retains an attorney licensed in Wisconsin and that attorney receives the original or a true copy of the out-of-state subpoena, the attorney may issue the subpoena.
It is important to note that the new rule places the obligation to retain the original subpoena and the proof of service on the attorney initiating the discovery. Under both option 1 and option 2, a file will only be created by the clerk of circuit court in the event that a special proceeding is commenced to enforce, quash, or modify the subpoena.
As before, if the subpoena is directed to an individual, the discovery with respect to that person, such as a deposition, shall be conducted in the county in which the person resides. If, however, the subpoena is directed to something other than a natural person, discovery is to be conducted in a county in which the entity does "substantial business." The adoption of the new statute also does not alter the fact that discovery conducted in Wisconsin must comply Wisconsin's rules and statutes, including, but not limited to, the requirements of Wis. Stat. ch. 804.
The notes to the statute indicate that nothing in Wis. Stat. § 887.24 limits any party from applying for appropriate relief in the state where the action is venued. Applications to the court that impact only the parties to the action may, of course, be made in the venue state. The notes also remind practitioners that "[e]videntiary issues that may arise, such as objections based on grounds such as relevance or privilege, are best decided in the discovery state under the laws of the discovery state (including its conflict of laws principles)."
An example illustrating how the new rules apply is helpful. A case is filed in Kansas. The witness to be deposed lives in Wisconsin. To achieve service of the subpoena, a lawyer of record for a party in the action pending in Kansas issues a subpoena in Kansas (the same way lawyers in Kansas routinely issue subpoenas in pending actions). That lawyer then checks with the clerk's office in the Wisconsin county in which the witness to be deposed lives to obtain a copy of its subpoena form. Then, the lawyer prepares a Wisconsin subpoena so that it has the same terms as the Kansas subpoena. Next, the lawyer submits the completed and executed Kansas subpoena and the completed but not yet executed Wisconsin subpoena to the clerk's office in Wisconsin. In addition, the lawyer might prepare a short transmittal letter to accompany the Kansas subpoena, advising the clerk that the Wisconsin subpoena is being sought pursuant to Wis. Stat. § 887.24(3). The clerk of court, upon being given the Kansas subpoena, will then issue the identical Wisconsin subpoena. Finally, the process server (or other agent of the party) serves the Wisconsin subpoena on the deponent in accordance with Wisconsin law.
If a special proceeding is initiated in Wisconsin court to challenge, enforce, or modify the subpoena, all other filings in that special proceeding must comply with the applicable Wisconsin rules or statutes, including the service requirements under Wis. Stat. § 801.14(2), and must be filed with the circuit court in the county in which discovery is to be conducted. An application to enforce a subpoena, for example, must include proof of service of the subpoena and must be accompanied by the appropriate fee specified in Wis. Stat. ch. 814. Every filing in a special proceeding must also be served on all parties to that proceeding, including the witness. However, a summons is unnecessary to initiate the action, and service by mail or facsimile is permitted pursuant to section 801.14(2).
Any application to the court for a special proceeding, including an application for a protective order, or to enforce, quash, or modify a subpoena, must comply with the law of the discovery state. Those laws include the discovery state's procedural, evidentiary, and conflict of laws rules. The Act expressly recognizes that the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests.
A court may award a prevailing party in a special proceeding its reasonable attorney's fees and expenses. This provision is consistent with motions to compel and for protective orders in discovery disputes under Wis. Stat. §§ 804.12(1)(c) and 804.01(3)(b).
A final order granting, denying, or otherwise resolving an application for a special proceeding is a final order for purposes of filing an appeal in accordance with Wis. Stat. § 808.03(1).
Comments to the UIDDA
Wisconsin Supreme Court Order No. 13-16A (July 7, 2015) states that "the Uniform Comments (Comments to the Uniform Interstate Depositions and Discovery Act) and the Judicial Council Committee Notes are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule." Uniform Comment 2, for example, provides that the Act is limited to discovery in state courts and it does not apply to international proceedings. The Committee Notes also clarify that "subpoena" does not include a subpoena for the inspection of a person. Medical examinations in a personal injury case, for example, are separately controlled by state discovery rules (the corresponding federal rule is Fed. R. Civ. P. 35). Since the plaintiff is already subject to the jurisdiction of the trial state, a subpoena should never be necessary.
Notably, a party issuing a subpoena in Wisconsin has not "appeared" as counsel; thus, it is no longer necessary for an out-of-state party in a state court proceeding venued elsewhere to obtain pro hac vice admission or hire local counsel to take discovery of a party. However, if a party makes or responds to an application to enforce, quash, or modify a subpoena in the discovery state, the attorney making or responding to the application must comply with the discovery state's rules governing lawyers appearing in its courts. Wisconsin's partial adoption of the UIDDA does not change existing state rules governing out-of-state lawyers appearing in its courts.
Cases Pending in Wisconsin State Court
Wisconsin has not chosen to alter the requirements for Wisconsin state court litigants seeking to take discovery out-of-state. Thus, when a case is pending in Wisconsin and a party wishes to take discovery of a non-Wisconsin party, they still need to go through the commission process set forth in Wis. Stat. § 887.26, as this procedure is not impacted by the adoption of Wis. Stat. § 887.24. A litigant in a Wisconsin state court proceeding then must look to the laws of the state where they wish to take discovery to determine how to serve their subpoena.
Dane County and Milwaukee County have published guides to the process for serving discovery subpoenas in those counties, but the process is essentially the same throughout Wisconsin.
The UIDDA does not change or repeal the law in those states that still require a commission or letter rogatory to take a deposition in a foreign jurisdiction. The Act does, however, repeal the law in those states in which discovery is sought that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states.
Litigants in out-of-state proceedings venued in state court no longer need to obtain Wisconsin local counsel to serve subpoenas in this state. Litigants in cases venued in a circuit court in this state seeking to take discovery elsewhere, however, will still need to obtain a commission in Wisconsin before complying with the procedure for serving their subpoena in the state where discovery is sought. As always, it is critical to review the rules and statutes governing subpoenas and discovery in the venue where your case is situated and, where applicable, the rules and statutes applicable to taking discovery in other states.
Kerry Gabrielson is an associate in the Litigation Practice Group in the Madison office of Godfrey & Kahn, S.C. While in law school, Kerry worked for the Public Service Commission as a law clerk and served as a judicial intern to the Honorable Ann Walsh Bradley at the Wisconsin Supreme Court.
1 Thus far, the states that have signed onto at least part of the UIDDA are: Washington, Oregon, Idaho, California, Nevada, Utah, Arizona, Colorado, New Mexico, South Dakota, North Dakota, Iowa, Kansas, Michigan, Indiana, Kentucky, Tennessee, Alabama, Georgia, South Carolina, North Carolina, Pennsylvania, New York, Vermont, Louisiana, Mississippi, Washington D.C., New Jersey, Hawaii, Delaware, Maryland, Alaska, Illinois (also effective Jan 1, 2016), Minnesota, Montana, Virginia (and the Virgin Islands). That leaves (for now at least) the following non-signatories: Connecticut, Massachusetts, Texas, Wyoming, Puerto Rico, Florida, Missouri, Arkansas, Oklahoma, Nebraska, New Hampshire, Maine, Rhode Island, West Virginia, and Ohio. West Virgina and Ohio, however, have introduced legislation relating to the UIDDA.
2 Wis. Stat. § 887.24 (3)(a) (emphasis added).
3 Wis. Stat. § 887.24 (3)(b).