804.12 (1) (c) applies to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (d) Trial preparation: experts. Discovery of facts known and opinions held by experts, otherwise discoverable under par. (a) and acquired or developed in anticipation of litigation or for trial, may be obtained as follows: 1. A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subd. 3. concerning fees and expenses as the court considers appropriate. 2. A party may, through written interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon motion showing that exceptional circumstances exist under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. 3. Unless manifest injustice would result, the court shall re-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
804.01
DEPOSITIONS AND DISCOVERY
quire that the party seeking discovery pay the expert a reasonable fee for the time spent in responding to discovery under the last sentence of subds. 1. and 2.; and with respect to discovery obtained under the last sentence of subd. 1., the court may require, and with respect to discovery obtained under subd. 2., the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. (e) Specific limitations on discovery of electronically stored information. 1g. A party is not required to provide discovery of any of the following categories of electronically stored information absent a showing by the moving party of substantial need and good cause, subject to a proportionality assessment under par. (am) 2.: a. Data that cannot be retrieved without substantial additional programming or without transforming it into another form before search and retrieval can be achieved. b. Backup data that are substantially duplicative of data that are more accessible elsewhere. c. Legacy data remaining from obsolete systems that are unintelligible on successor systems. d. Any other data that are not available to the producing party in the ordinary course of business and that the party identifies as not reasonably accessible because of undue burden or cost. In response to a motion to compel discovery or for a protective order, the party from whom discovery is sought is required to show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may order discovery from such sources only if the requesting party shows good cause, considering the limitations of par. (am). The court may specify conditions for the discovery. 1r. No party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information, or respond to an interrogatory under s. 804.08 (3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court: a. The subjects on which discovery of electronically stored information may be needed, when such discovery should be completed, and whether discovery of electronically stored information shall be conducted in phases or be limited to particular issues. b. Preservation of electronically stored information pending discovery. c. The form or forms in which electronically stored information shall be produced. d. The method for asserting or preserving claims of privilege or of protection of trial-preparation materials, and to what extent, if any, the claims may be asserted after production of electronically stored information. e. The cost of proposed discovery of electronically stored information and the extent to which such discovery shall be limited, if at all, under sub. (3) (a). f. In cases involving protracted actions, complex issues, or multiple parties, the utility of the appointment by the court of a referee under s. 805.06 or an expert witness under s. 907.06 to supervise or inform the court on any aspect of the discovery of electronically stored information. 2. If a party fails or refuses to confer as required by subd. 1r., any party may move the court for relief under s. 804.12 (1). 3. If after conferring as required by subd. 1r., any party objects to any proposed request for discovery of electronically stored information or objects to any response under s. 804.08 (3) proposing the production of electronically stored information, the
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objecting party may move the court for an appropriate order under sub. (3). (3) PROTECTIVE ORDERS. (a) Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including but not limited to one or more of the following: 1. That the discovery not be had; 2. That the discovery may be had only by specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; 3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; 4. That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; 5. That discovery be conducted with no one present except persons designated by the court; 6. That a deposition after being sealed be opened only by order of the court; 7. That a trade secret, as defined in s. 134.90 (1) (c), or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; 8. That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. (b) If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Section 804.12 (1) (c) applies to the award of expenses incurred in relation to the motion. (c) Motions under this subsection may be heard as prescribed in s. 807.13. (4) SEQUENCE AND TIMING OF DISCOVERY. Unless the parties stipulate or the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery. (5) SUPPLEMENTATION OF RESPONSES. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows: (a) A party is under a duty seasonably to supplement the party’s response with respect to any question directly addressed to all of the following: 1. The identity and location of persons having knowledge of discoverable matters. 2. The identity of each person expected to be called as an expert witness at trial. (b) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which 1. the party knows that the response was incorrect when made, or 2. the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (c) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. (6) CUSTODY OF DISCOVERY DOCUMENTS. (a) Unless the court in any action orders otherwise, the original copies of all depositions, interrogatories, requests for admission and responses thereto, and other discovery documentation shall be retained by the party who initiated the discovery or that party’s attorney.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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(b) The original copy of a deposition shall be retained by the attorney sealed as received from the person recording the testimony until the appeal period has expired, or until made a part of the record. (7) RECOVERING INFORMATION INADVERTENTLY DISCLOSED. If information inadvertently produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. History: Sup. Ct. Order, 67 Wis. 2d 585, 654 (1975); 1975 c. 218; 1985 a. 236; Sup. Ct. Order, 130 Wis. 2d xix (1986); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1993 a. 486; Sup. Ct. Order No. 95-03, 191 Wis. 2d xix (1995); 1997 a. 35, 133; 2007 a. 20; Sup. Ct. Order No. 09-01, 2010 WI 67, filed 7-6-10, eff. 1-1-11; Sup. Ct. Order No. 09-01A, 2010 WI 129, 329 Wis. 2d xix; Sup. Ct. Order No. 12-03, 2012 WI 114, 344 Wis. 2d xxi; 2015 a. 55; 2017 a. 235. Judicial Council Note, 1986: Sub. (6) requires that the originals of discovery documents be retained by the party who initiated the discovery, or his or her attorney, unless the court otherwise directs, until the time for appeal has expired. [Re Order eff. 7-1-86.] Judicial Council Note, 1988: Sub. (3) (c) [created] allows motions for protective orders to be heard by telephone conference. [Re Order effective Jan. 1, 1988] Judicial Council Note, 1995: The revision to sub. (2) (d) 1. makes it unnecessary to obtain a court order to take an expert’s deposition. By mutual agreement, practitioners commonly agree to take experts’ depositions without troubling the court for an order. The court’s power to control the discovery process is sufficient to prevent abuses. The revision is based on Rule 26 (b) (4) (A), F.R.C.P. Subsection (2) (d) 2. is amended to specify that discovery of non-testifying experts may be made by interrogatories or depositions. The revision is based on Rule 26 (b) (4) (B), F.R.C.P. Supreme Court Note, 2010: Sub. (2) (e) was created as a measure to manage the costs of the discovery of electronically stored information. If the parties confer before embarking on such discovery, they may reduce the ultimate cost. The rule does not require parties to confer before commencing discovery under s.