State Bar of Wisconsin: Litigation Section Blog
The Wisconsin Legislature recently redefined the scope of allowable discovery in Wisconsin. Ralph Tease discusses how these substantive rule changes – effective July 1, 2018 – represent a dramatic change in the practice of civil law.
Our state Legislature recently instituted several substantive changes to the rules of civil procedure governing discovery that all practitioners need to be aware of, regardless of practice area.
With the enactment on April 3, 2018, of 2017 Act 235, the Legislature chose not to allow for full vetting of the proposed rule changes by the Wisconsin Judicial Council – which, over the past 60 years, played a central role in developing Wisconsin’s Rules of Civil Procedure and Evidence.
Despite the intention of the Legislature to adopt procedural rules modeled after the Federal Rules of Civil Procedure (FRCP), there remain differences that the Judicial Council should have been asked to advise on to allow for a smoother transition that would have benefited lawyers and judges alike.
While numerous revisions were made to the rules, this article focuses on the scope of discovery, how it has been redefined, and the potential that it will generate a new upsurge of litigation over discovery matters due to the deviation from the old standards.
A Dramatic Change in the Practice of Civil Law
Effective July 1, 2018, Wis. Stat. section 804.01(2)(a) will allow parties to seek discovery as follows:
“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery of outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.”
Of note, the familiar language that allowed for discovery of information if it was “reasonably calculated to lead to discovery of admissible evidence” has been removed from the statute.
The Legislature also decided to inject the concept of “proportional to the needs of the case” into every request for discovery.
These are only a few of the substantive changes to our discovery rules that will likely plague litigants, attorneys, and the courts with an abundance of discussion, debate, and – ultimately – litigation over the meaning of these changes, and whether they were meant to create a substantial difference in how civil discovery is to be conducted in the Wisconsin courts.
From a practical standpoint, it appears that these rule changes have allowed for the construction of a number of road blocks to discovery.
While the promoters of the rule changes were concerned about the burdens of excessive discovery, an equal amount of concern should have also been directed toward those parties who seek reasonable discovery but encounter obstructionist tactics that make discovery more difficult and expensive than it should be.
These rule changes may provide fuel for those obstructionist tactics. For example, since we lost the safety net of allowing discovery of information that “appears reasonably calculated to lead to discovery of admissible evidence,” can a party now only pursue discovery of information that is “relevant”? Does a blanket request for 10 years of medical records from a personal injury plaintiff clearly seek “relevant” information? Does a request for accident reports of prior falls or injuries on a stair case of a public building clearly fall within the definition of “relevant” matters?
While such requests were common under the old rule, now they may only be appropriate if the requesting party can establish that they seek “relevant” information. This may be construed as a much higher hurdle to overcome than what existed under the old rule.
On the other hand, perhaps due to institutional inertia, parties and the courts may express a tendency to think of the new rule under the analysis applied to the old. In review of federal cases following the adoption of the 2015 amendments to the FRCP, federal courts have reminded parties that relevance in the discovery setting remains broadly construed to encompass issues that reasonably could lead to other matter that has bearing on a party’s claim or defense.1
If Wisconsin courts follow that logic, as is usually the case where state procedural rules are patterned after federal rules,2 then “relevance” under the new rule will be defined to include information that is “reasonably calculated to lead to the discovery of admissible evidence,” putting us right back to where we have been under the old rule.
Proportionality: Undeveloped in Wisconsin
In addition to relevance, practitioners need to consider how “proportionality” within discovery might breed additional controversy, debate, and litigation. While that concept has been utilized in the Federal Rules of Civil Procedure, it remains generally undeveloped in Wisconsin jurisprudence. As such, it remains to be seen how Wisconsin courts will interpret that concept.
Under the new rules, who will bear the burden of establishing that discovery is relevant and proportional to the needs of the case? It appears that the requesting party will continue to bear the burden of establishing relevance and the objecting party will bear the burden of establishing that discovery is disproportional or improper.3 It is also likely that boilerplate objections that discovery is not relevant or proportionate will be insufficient to satisfy opposing counsel or the courts.
In practice, either the parties are going to have to agree or the courts are going to have to rule on these matters until enough practical experience and precedential court guidance has been developed.
Weighing the Listed Factors
In dealing with this concept of proportionality, lawyers and courts will also have to determine what the listed factors mean and how they will be weighed or considered against each other.
In that regard, here are some considerations to make when assessing the effect of proportionality on Wisconsin discovery law:
The Importance of the Issues at Stake in the Action
What are the “stakes” and who determines the “importance of the issues”? Are monetary stakes the only factor? What are the other factors to be balanced with monetary stakes? What about philosophical or social principles? How will they be weighed or considered?
The Amount in Controversy
What happens if the cost of the proposed discovery exceeds the amount in controversy? If this question arises in a low money damages case, will the court feel inclined to limit discovery? If so, since when is justice “proportional” to the money at stake? As some members of the legal community have already suggested, this is a dangerous concept by which to limit discovery. Also, what about actions seeking equitable relief, injunctive relief, or declaratory relief?
The Parties’ Relative Access to Relative Information
This rule marks an appropriate consideration when weighting the equities of discovery. It is not uncommon that in certain types of litigation, the burden of responding to discovery is heavier on the party who has the most information.
The Parties’ Resources
Will the courts allow for more discovery requests from a wealthy party, but limit discovery from a financially weak party? This criterion may well disadvantage large corporations, insurance companies, and governmental bodies and should give such organizations pause.
The Importance of the Discovery in Resolving the Issues
Who will decide the “importance” of the requested discovery in resolving the ultimate issues in the case? If important, will discovery be allowed even if the cost is considerable or the amount in controversy is small?
Whether the Burden or Expense of the Proposed Discovery Outweighs its Likely Benefit
An argument could be made that all discovery is inherently burdensome. So, who will decide whether that burden is unduly light or harsh given the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources and the importance of discovery in resolving the issues?
Given the novelty of these changes in the discovery rules, parties should be encouraged to cooperate in working out disputes. If the parties fail to agree – which is to be expected when changes are made to fundamental definitions and rules – the courts will have to rule on their disputes until enough practical experience and precedential court guidance has been created.
If confronted with a challenge based on relevance and proportionality, consider, as a starting point, looking to the decisions of the federal courts. While these new Wisconsin rules do not completely adopt the federal rules, some rules are the same – such as the proportionality rule – so you should argue that it is subject to federal gloss.
Tossing Aside 40 Years of Guidance
The point of this discussion is not that these rule changes are necessarily bad or unsuited to Wisconsin practice.
The point is that these changes were brought forth by a Legislature that appeared determined to proverbially fix something that was not broken. The prior version of section 804.01(2)(a) existed for more than four decades, allowing for an abundance of practical experience, circuit court rulings, and appellate court decisions that gave guidance and direction to lawyers in conducting discovery in civil cases in Wisconsin.
The fact that our Legislature chose to enact these changes without proper vetting by the Wisconsin Judicial Council now means that the vetting will have to take place within the civil lawsuits filed after July 1.
One thing is for certain: these substantive changes in section 804.01(2)(a) will dramatically change the practice of civil law in Wisconsin until each criterion is scrutinized and evaluated by litigants and our court system.
1 See, e.g., Murillo v. Kohl’s Corp., No. 16-CV-196-JPS, 2016 WL 4705550, at *2 (E.D. Wis. Sept. 8, 2016).
3 See, e.g.,Murillo, 2016 WL 4705550, at *2-3.
Ralph J. Tease, Marquette 1981, is a managing partner of the Green Bay office of Habush Habush & Rottier, S.C., where he handles a wide range of personal injury and wrongful death cases in courts throughout Wisconsin.
Two Wisconsin law firms bring their fight against Epic Systems to arbitration after United States Supreme Court ruling
For immediate release:
May 21, 2018 (Madison, WI) – Two Wisconsin law firms, Hawks Quindel S.C. and Habush Habush & Rottier S.C.® announced their intention to individually vindicate the employment claims of their clients following a decision released today in the case Epic Systems Co. v. Lewis. The U.S. Supreme Court overturned rulings from the Western District of Wisconsin, the U.S. Court of Appeal for the Seventh Circuit, and the National Labor Relations Board, which had all found that contract provisions forcing employees to waive their right to join together to bring a legal claim against their employer, and forcing employees into individual private arbitration, violate federal labor law. The Supreme Court concluded that employers can force employees to litigate violations of their rights in the workplace in individual, private arbitration, and can prevent them from joining together to assert their claims.
One of Mr. Lewis’s lawyers, David Zoeller, stated “while we are disappointed in the decision, and agree with Justice Ginsberg’s dissent criticizing the Court’s willingness to suppress worker’s rights through the enforcement of unbargained-for labor contracts, and reminding us of labor law’s central purpose of allowing employees to gain strength in numbers, this decision does not end this case or others like it. Where an employer fails to comply with state or federal employment laws, it cannot hide behind individual arbitration provisions to avoid liability.”
As it stands now, a legislative effort is needed to reinstate employees’ right to join together and stand up against employers who do not follow the law. Until that time, the firms representing Mr. Lewis emphasize that they are not deterred from seeking justice for employees’ subject to mandatory individual arbitration who have been the victims of wage theft or other abuses at the hands of their employers.
Mr. Lewis’s attorneys state that, if compelled, they will go forward in the private arbitral forum selected by Epic, and will have their clients’ claims heard, one at a time. Attorney Knutson commented that “the absurdity of retrying the same claim hundreds of time times is not lost on Mr. Lewis or his team of attorneys, but that is exactly what will happen as a result of Epic’s forced arbitration provision.”
Attorney Knutson led the Habush team, which also includes Dan Rottier, Jim Jansen, and Breanne Snapp. The lawyers at Hawks Quindel working on the case include David Zoeller, William Parsons, and Caitlin Madden.
For additional information contact:
Attorney Caitlin Madden Attorney Jason Knutson
Hawks Quindel S.C. Habush Habush & Rottier S.C.®
Habush Habush & Rottier attorney and President Dan Rottier and his clients were featured in the Wisconsin State Journal and other major publications this week regarding a state appeals court ruling that declared Wisconsin’s cap on non-economic damages in medical malpractice cases is unconstitutional.
The case in question involved one of the firm’s clients, Ascaris Mayo, who had to have all four of her limbs amputated after doctors failed to tell her that she was suffering from a septic infection. The Mayos were awarded $25.3 million, including $15 million in non-economic damages, in a 2014 jury verdict against the doctors and the state malpractice compensation fund. The fund was established in 1975 to provide excess malpractice coverage for healthcare providers and to ensure compensation for injured patients. Following the verdict, a Milwaukee County Circuit Court judge had ruled that Wisconsin’s statutory cap of $750,000 was unconstitutional, and upheld the jury’s award. The fund appealed, but the appellate court affirmed the circuit court’s decision on Wednesday. The case is likely to go to the Wisconsin Supreme Court.
Attorney Rottier was quoted in the article saying: “We won a very large battle, but the war is still going on,”
To learn more about this case and the appeals court ruling, read the story at the Wisconsin State Journal here.
When it came time for Steven Botzau, a plaintiff attorney for Habush Habush & Rottier S.C. ® to nominate someone for the honor of “Trial Judge of the Year,” he knew exactly who to choose. Botzau nominated Racine County Circuit Court Judge Emily Mueller for the title, an honor given every year by the Wisconsin chapter of the American Board of Trial Advocates (ABOTA). Other ABOTA members will typically offer up their own ideas for nominations, but once Botzau suggested Judge Mueller, “everybody agreed right away that she was perfect and a very worthy recipient,” Botzau said.
Judge Emily Mueller was first appointed to the bench in 1992 and has served as a judge in Racine County ever since. Over the past 25 years, she has presided over dozens of high-profile criminal and civil cases. Botzau noted that, to his knowledge, Mueller is the first Racine County Circuit judge to receive the “Trial Judge of the Year” title. Mueller prides herself on treating everyone in the courtroom with respect, and when asked about her role as a judge, Mueller said, “A judge needs to make certain that the playing field is level for everybody, and that everybody is playing by the same set of legal rules.”
The attorneys at Habush Habush & Rottier S.C. ® want to congratulate Judge Mueller for the well-deserved honor of Trial Judge of the Year. She has helped our community to become a more fair and honest place, and we hope that other judges will learn from her respectable work. You can read more about Judge Mueller in her feature in The Journal Times.
Authorities are reporting that at least one individual was killed and several others were injured in an explosion and fire at the Didion Milling plant in Cambria. The explosion occurred around 11:00 p.m. and approximately 16 workers were present at the time of the explosion. News reports say that thirty-seven local agencies were responding to the blast and the injured have been transported to local hospitals. Our thoughts are with the victims and their families.
You can also read more local coverage and follow this developing story at WKOW.com.
*Update – News outlets including the Washington Post are reporting that the plant in Cambria was cited by the Occupational Safety and Health Administration (OSHA) in 2011 for explosion hazards. Read more at the Washington Post.
That text can wait. On May 8th, attorney Ralph Tease hosted a presentation at Pulaski High School sharing the dangers of distracted driving and how to better protect yourself and others.
Thanks to NBC26 for the feature! Watch the news story and read more on the NBC26 website here.
The Habush team is very proud of attorney Jason Knutson, who was awarded the Dane County Bar Association Pro Bono Award on May 1, for his dedicated work in the Latino Community in Dane County! This award is given to an individual or organization who has exemplified great dedication to developing legal services for the poor or who has advanced the ways to deliver volunteer legal services. Attorney Knutson serves from the Madison office and is a shareholder with the firm, specializing in complex litigation, such as major environmental and industrial accidents, and class action claims, while also handling cases of medical malpractice, products liability, and personal injury. Congratulations, Jason!
Attorney Benjamin Wagner of the Milwaukee office is currently President of the Wisconsin Association for Justice. The Association supports the work of attorneys to ensure any person harmed due to workplace injury or injured by the misconduct or negligence of others can have a fair day in court when taking on the most powerful interests. Attorney Wagner has taken the time to write different pieces on the importance of the 7th Amendment as well as advocacy. Check them out here.
Christopher E. Rogers of Habush Habush & Rottier, S.C. is the new President-elect of the Wisconsin State Bar following the elections ending April 28th, 2017. In an incredibly narrow race, attorney Rogers defeated Jon P. Axelrod of DeWitt Ross & Stevens S.C. The final vote totals gave attorney Rogers the victory with 2,521 votes to attorney Axelrod’s 2,423.
Attorney Rogers is honored to be elected and had this to say of the victory:
““I’m very appreciative of the trust and commitment from the membership,” Rogers said. It was a privilege to run, “particularly in a campaign with Jon – a great attorney and a great person.”
The entire team at Habush Habush & Rottier, S.C. are proud of Chris’ accomplishment and we wish him luck in his one term as President-elect and his subsequent term as President.
For more on this story and more election results, read the Wisconsin Law Journal story.
Listen to Habush Habush & Rottier S.C. ® attorney Jason Knutson discuss the most recent updates to the Syngenta lawsuit! Jason was interviewed this week by Bryant from the Farm Report, about this long-developing legal action that has dramatically affected corn producers across the region. In the interview, Jason talks about the first trial that will start this month. According to Jason, this is the first of three “bell weather” trials that will help determine how juries will react to the case. Attorney Knutson and others believe that the corn producers have a strong case and he believes that things will go well for them in their pursuit of justice. To learn more about this case and to hear the full interview, listen here.