Section 804.12. Failure to make discovery; sanctions.

 

(1)   Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(a) Motion. If a deponent fails to answer a question propounded or submitted under s. 804.05 or 804.06 , or a corporation or other entity fails to make a designation under s. 804.05 (2) (e) or 804.06 (1) , or a party fails to answer an interrogatory submitted under s. 804.08 , or if a party, in response to a request for inspection submitted under s. 804.09 , fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he or she applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to s. 804.01 (3) .

(b) Evasive or incomplete answer. For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer.

(c) Award of expenses of motion.

1. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

2. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

3. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

(2)   Failure to comply with order.

(a) If a party or an officer, director, or managing agent of a party or a person designated under s. 804.05 (2) (e) or 804.06 (1) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under sub. (1) or s. 804.10 , the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;

3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical, mental or vocational examination.

(b) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

(3)   Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under s. 804.11 , and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in the making of that proof, including reasonable attorney fees. The court shall make the order unless it finds that (a) the request was held objectionable pursuant to sub. (1) , or (b) the admission sought was of no substantial importance, or (c) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (d) there was other good reason for the failure to admit.

(4)   Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection or supplement responses. If a party or an officer, director, or managing agent of a party or a person designated under s. 804.05 (2) (e) or 804.06 (1) to testify on behalf of a party fails (a) to appear before the officer who is to take the party's deposition, after being served with a proper notice, or (b) to serve answers or objections to interrogatories submitted under s. 804.08 , after proper service of the interrogatories, or (c) to serve a written response to a request for inspection submitted under s. 804.09 , after proper service of the request, or (d) seasonably to supplement or amend a response when obligated to do so under s. 804.01 (5) , the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others, it may take any action authorized under sub. (2) (a) 1. , 2. and 3. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by s. 804.01 (3) .

(4m)   Failure to provide electronically stored information . Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

(5)   Telephone hearings. Motions under this section may be heard as prescribed in s. 807.13 .

Sup. Ct. Order, 67 Wis. 2d 585, 684 (1975); 1975 c. 94 s. 3 ; 1975 c. 200 , 218 ; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1993 a. 424 , 490 ; Sup. Ct. Order No. 09-01 , 2010 WI 67, filed 7-6-10, eff. 1-1-11. Cross-reference: See also s. 885.11 (5) regarding failure to appear at deposition. Judicial Council Note, 1988: Sub. (5) [created] allows discovery motions to be heard by telephone conference. [Re Order effective Jan. 1, 1988] Judicial Council Note, 2010: Section 804.12 (4m) is taken from F.R.C.P. 37(e). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 804.12 (4m): The “routine operation" of computer systems includes the alteration and overwriting of information, often without the operator's specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems. The rule applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party's intervention to modify or suspend certain features of the routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement . . . means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold." Among the factors that bear on a party's good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information. The protection provided by this rule applies only to sanctions “under these rules." It does not affect other sources of authority to impose sanctions or rules of professional responsibility. This rule restricts the imposition of “sanctions." It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information. [Re Order effective Jan. 1, 2011] If imposed solely for failure to obey a court order, without evidence of bad faith or no merit, sanctions imposed under sub. (2) (a) deny due process. Dubman v. North Shore Bank, 75 Wis. 2d 597 , 249 N.W.2d 797 (1977). A defendant's failure to produce subpoenaed documents did not relieve the plaintiff of the obligation to make a prima facie case. Paulsen Lumber, Inc. v. Anderson, 91 Wis. 2d 692 , 283 N.W.2d 580 (1979). Although the plaintiff failed in the duty to disclose its expert's identity, the defendant failed to show hardship that would justify excluding the expert's testimony. Jenzake v. City of Brookfield, 108 Wis. 2d 537 , 322 N.W.2d 516 (Ct. App. 1982). The court exercised proper discretion in dismissing a claim when the claimants failed to provide responsive answers to interrogatories, engaged in dilatory conduct, and there was no justification for their failure to appear and produce documents at depositions. Englewood Apartments Partnership v. Grant & Co. 119 Wis. 2d 34 , 349 N.W.2d 716 (Ct. App. 1984). Although the trial court had no power under sub. (2) (a) 4. to compel an HIV test, it did have that power in equity. Syring v. Tucker, 174 Wis. 2d 787 , 498 N.W.2d 370 (1993). The personnel commission may not award costs and attorney fees for discovery motions filed against the state under the Fair Employment Act. Transportation Dept. v. Personnel Commission, 176 Wis. 2d 731 , 500 N.W.2d 664 (1993). The application of sub. (3) is discussed. Michael A.P. v. Solsrud, 178 Wis. 2d 137 , 502 N.W.2d 918 (Ct. App. 1993). The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531 , 535 N.W.2d 65 (Ct. App. 1995). A circuit court may impose both non-compensatory and compensatory monetary sanctions for the same conduct. Hur v. Holler, 206 Wis. 2d 335 , 557 N.W.2d 429 (Ct. App. 1996), 95-2966 . A substantiated assertion of privilege is substantial justification for failing to comply with an order to provide or permit discovery. Burnett v. Alt, 224 Wis. 2d 72 , 589 N.W.2d 21 (1999), 96-3356 . Counsel's egregious acts may be imputed to the client. Smith v. Golde, 224 Wis. 2d 518 , 592 N.W.2d 287 (Ct. App. 1998), 97-3404 . If the constitution or statutes require proof before the circuit court can enter a particular judgment or order, the court cannot enter the judgment or order without the appropriate showing. The circuit court may determine that a party's action or inaction provides adequate cause for sanctions against that party, but that does not allow the court to dispense with any constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. Evelyn C.R. v. Tykila S. 2001 WI 110 , 246 Wis. 2d 1 , 629 N.W.2d 768 , 00-1739 . The trial court abused its discretion by ordering the defendant in a civil suit to forego its rights to insurance coverage for punitive damages when the issue of rights to insurance coverage was not before the court. City of West Allis v. WEPCO, 2001 WI App 226 , 248 Wis. 2d 10 , 635 N.W.2d 873 , 99-2944 . When a sanction causes the ultimate dismissal of an action, the sanctioned party's action must be egregious and without clear and justifiable excuse. Egregiousness is not synonymous with bad faith. A party can be guilty of egregiousness without acting in bad faith or having its counsel act in bad faith. Sentry Insurance v. Davis, 2001 WI App 203 , 247 Wis. 2d 501 , 634 N.W.2d 553 , 00-2427 . Sub. (4) did not provide authority for prohibiting the moving party, who had not failed to cooperate with discovery, from submitting an affidavit of another party to the action in favor of a motion for summary judgment when the party giving the affidavit had failed to appear for a deposition by a 3rd party in the action. Daughtry v. MPC Systems, Inc. 2004 WI App 70 , 272 Wis. 2d 260 , 679 N.W.2d 806 , 02-2424 . It is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney's conduct to the client, if the client is blameless. Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19 , 299 Wis. 2d 81 , 726 N.W.2d 898 , 05-0189 . There is no requirement that conduct must be persistent in order to be egregious. When a defendant in a medical malpractice case destroyed all of his medical records in a single act, the magnitude of the loss under the circumstances was sufficient to constitute egregious conduct. Morrison v. Rankin, 2007 WI App 186 , 305 Wis. 2d 240 , 738 N.W.2d 588 , 06-0980 . It lies within the circuit court's discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant's right of trial by jury under Art. I, s. 5 when it denied the defendant's motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court's discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc. 2008 WI 73 , 310 Wis. 2d 623 , 752 N.W.2d 220 , 06-0813 . An order refusing to allow a disobedient party to support or oppose designated claims or defenses under sub. (2) (a) 2. is a severe sanction and requires a finding of egregiousness. Zarnstorff v. Neenah Creek Custom Trucking, 2010 WI App 147 , 330 Wis. 2d 174 , 792 N.W.2d 594 , 09-1321 . What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig & Gleisner. Wis. Law. July 2010.