Section 804.07. Use of depositions in court proceedings.

 

(1)   Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(b) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or employee or a person designated under s. 804.05 (2) (e) or 804.06 (1) to testify on behalf of a public or private corporation, limited liability company, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

(c)

1. The deposition of a witness other than a medical expert, whether or not a party, may be used by any party for any purpose if the court finds any of the following:

a. That the witness is dead.

b. That the witness is at a greater distance than 30 miles from the place of trial or hearing, or is out of the state, and will not return before the termination of the trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition.

c. That the witness is unable to attend or testify because of age, illness, infirmity or imprisonment.

d. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.

e. Upon application and notice, that exceptional circumstances exist that make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

2. The deposition of a medical expert may be used by any party for any purpose, without regard to the limitations otherwise imposed by this paragraph.

(d) If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

(e) Substitution of parties pursuant to s. 803.10 does not affect the right to use depositions previously taken; and when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor.

(2)   Objections to admissibility. Subject to sub. (3) (c) and to s. 804.03 (2) , objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(3)   Effect of errors and irregularities in depositions.

(a) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

(b) As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(c) As to taking of deposition.

1. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

2. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

3. Objections to the form of written questions submitted under s. 804.06 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized.

(d) As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under ss. 804.05 and 804.06 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Sup. Ct. Order, 67 Wis. 2d 585, 673 (1975); 1975 c. 218 ; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1983 a. 192 ; Sup. Ct. Order, 130 Wis. 2d xxix (1986); 1993 a. 112 ; 1995 a. 225 . Judicial Council Committee's Note, 1976: Section 804.07 (2) is taken from F.R.C.P. 32 (b). The reference in sub. (2) to “sub. (3) (d)" is changed to read “sub. (3) (c)" to correspond with subdivision (d) (3) in F.R.C.P. 32 (b). [Re Order effective Jan. 1, 1977] Judicial Council Note, 1986: Sub. (1) (e) is amended to reflect the fact that depositions need not be filed except upon order of the court. See s. 804.05 (7) (a). [Re Order eff. 7-1-86] Under subs. (2) and (3) (c) 1., a hearsay objection was not waived by the failure to object at deposition. Strelecki v. Firemans Ins. Co. of Newark, 88 Wis. 2d 464 , 276 N.W.2d 794 (1979). The defendant's evidentiary deposition of its doctor expert taken subsequent to the plaintiff's discovery deposition of the doctor did not prevent the plaintiff's use of the discovery deposition at trial. Martin v. Richards, 176 Wis. 2d 339 , 500 N.W.2d 691 (Ct. App. 1993).