I If you have been or will be involved in the litigation process in Wisconsin, you may wonder what “discovery” is. While it seems like a strange way to refer to a legal process, it is the perfect term for what happens. Discovery is asking questions; basically, it is the time when each side investigates its case and gathers information to be used at trial. The process is governed by law, in this case, Wisconsin state statute chapter 804, depositions and discovery. The rules governing discovery are very specific, and your attorney can explain how they apply to your specific facts and circumstances. Read on to learn a bit more about the basic process of discovery in Wisconsin.
What is Discovery?
Discovery is the period after a complaint and answer are filed in litigation. Each side gets to ask the other for documents, send written questions, and conduct depositions if necessary. In other words, it is the period to discover additional facts and acquire evidence. Discovery comes with its own process and rules that your attorney will explain as you go along. You are required to answer all questions and provide all documents requested unless the request goes beyond the scope of the matter, in which case you can object to the request.
How Is Discovery Served in Wisconsin?
Discovery is usually mailed or faxed to the other side. If your attorney agrees to electronic service, the requests can be emailed between the two attorneys working on the matter. Either way, you have thirty days from service of the discovery to respond, in writing and at times under oath, to the various requests.
Written Discovery
There are three forms of written discovery, requests to produce documents, interrogatories, and requests to admit. Here is a brief description of all three:
Interrogatories- interrogatories are questions about the matter, the people involved and claims made in the complaint or defenses raised to answer the complaint. Wisconsin does not allow more than 25 interrogatories to be sent to the opposing party at one time. Furthermore, the interrogatories must be specific. They cannot just ask you about anything; they must be narrowly tailored to lead to the discovery of admissible evidence in the matter.
Requests to Admit - are more direct statements that require an answer o “admit” or “deny.” Any answers you give will be admissible in court, so if you admit something during discovery and then get on the stand at trial and say something else, the other side will undoubtedly notice and point it out, ruining your credibility with the court. A failure to respond to every request to admit means that the court will deem it “admitted,” so it is vital to fully respond to every request to admit on time.
Requests to Produce Documents-here is where the other side, and you, can request any documents or intangible information (digital information) that they believe is relevant to the case and will lead to the discovery of admissible evidence in the case. This means that you will have to produce an electronic file or hard copy printouts of the requested documents.
You can object to part or all of any of the interrogatories or request to produce documents. These objections must be relevant and explained; you cannot simply write “objection,” but you must explain why the request is inappropriate. If the other side is unhappy with the objection, they can ask for a meeting between the attorneys to discuss and possibly move forward with something called a motion to compel, where they request that the court order you to answer.
Depositions
Depositions are formal conversations between the attorney for one party and parties on the other side. There are given under oath and recorded by a court reporter, who will later provide each side with a transcript of the deposition. While the rules for deposition are less formal than when a party testifies on the stand in court, it is still considered testimony under oath. Depositions typically occur after written discovery is conducted, and the questions asked are usually based on the information obtained. Each attorney for each side will be present and able to communicate with their respective clients. With the pandemic, there has been a shift towards having depositions via zoom, making the process easier for everyone involved. Depositions usually don’t last for more than one day, but there will be several hours of questions asked by the side conducting the deposition so expect it to take a while and to be tired at the end of it. For more information on What to Expect from a Deposition, read our article.
The immediate parties are not the only people who can be deposed in a case. In the interrogatories, the attorney will usually ask for the name and contact information of any party who may possess knowledge about the case and choose to depose them. If a witness list is provided, the opposing attorney may choose to depose them before going to trial to get an idea of what they may say about the matter in court.
While this is a simplified outline of the discovery process, understand that it can take a reasonable amount of time to complete. Not only are there potential extensions asked for and given on each side, but there are also potential discovery disputes that might have to be taken to the judge on the case to be resolved. While some discovery disputes are legitimate, failure to participate in the discovery process in good faith can lead to potential costs, fees, and sanctions for the misbehaving party. Your attorney will work with you to ensure that your responses are complete, your production is on time, and if you are still looking for what you need, an extension is requested and given by the other side. Your attorney will also make the appropriate objections if necessary to ensure that the discovery process is in good faith, the questions asked are relevant to the issues presented, and not made for the purposes of harassment.
If you are considering litigation and have questions about what discovery is and what it can mean for your success in court, you should consult an experienced Wisconsin litigation attorney who can assist you with your matter. If the case is complicated enough to require discovery, it is unlikely that you should represent yourself in the matter. If you are looking for an experienced Wisconsin litigation attorney, feel free to call O’Flaherty Law; we would be happy to help you.
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