Section 805.07. Subpoena.

 

(1)   Issuance and service. Subpoenas shall be issued and served in accordance with ch. 885 . A subpoena may also be issued by any attorney of record in a civil action or special proceeding to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding.

(2)   Subpoena requiring the production of material.

(a) A subpoena may command the person to whom it is directed to produce the books, papers, documents, electronically stored information, or tangible things designated therein. A subpoena may specify the form or forms in which electronically stored information is to be produced. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.

(b) Notice of a 3rd-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a 3rd-party subpoena requests the production of books, papers, documents, electronically stored information, or tangible things that are within the scope of discovery under s. 804.01 (2) (a) , those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.

(c) If a subpoena does not specify a form for producing electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The person responding need not produce the same electronically stored information in more than one form.

(d) If information inadvertently produced in response to a subpoena 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.

(3)   Protective orders. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things designated therein.

(4)   Form.

(a) The subpoena shall be in the following form:

Subpoena

State of Wisconsin

.... County

The State of Wisconsin, To ....:

Pursuant to section 805.07 of the Wisconsin Statutes, you are hereby commanded to appear in person before [.... designating the court, officer, or person and place of appearance], on [.... date] at .... o'clock ...M., to give evidence in an action between ...., plaintiff, and ...., defendant. [Insert clause requiring the production of material, if appropriate]. Failure to appear may result in punishment for contempt which may include monetary penalties, imprisonment and other sanctions. Issued this .... day of ...., .... (year)

[ Handwritten Signature ]

Attorney for [identify party]

(or other official title)

[Address]

[Telephone Number]

(b) For a subpoena requiring the production of material, the following shall be inserted in the foregoing form: You are further commanded to bring with you the following: [describing as accurately as possible the books, papers, documents or other tangible things sought].

(5)   Substituted service. A subpoena may be served in the manner provided in s. 885.03 except that substituted personal service may be made only as provided in s. 801.11 (1) (b) and except that officers, directors, and managing agents of public or private corporations or limited liability companies subpoenaed in their official capacity may be served as provided in s. 801.11 (5) (a) .

(6)   Motion hearing procedure. Motions under sub. (3) may be heard as prescribed in s. 807.13 .

Sup. Ct. Order, 67 Wis. 2d 585, 697 (1975); 1979 c. 110 ; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 155 ; 1993 a. 112 ; Sup. Ct. Order No. 95-09 , 195 Wis. 2d xiii (1996); 1997 a. 250 ; 1999 a. 85 ; 2005 a. 253 ; Sup. Ct. Order No. 09-01 , 2010 WI 67, filed 7-6-10, eff. 1-1-11; Sup. Ct. Order No. 12-03 , 2012 WI 114, filed 11-1-12, eff. 1-1-13. Judicial Council Note, 1988: Sub. (6) [created] allows motions for protective orders to be heard by telephone conference. [Re Order effective Jan. 1, 1988] Judicial Council Note, 1995: ?Sub. (2) (b) requires notice of third-party discovery subpoenas in order to preserve the right of other parties to move to quash them. Judicial Council Note, 2010: The amendments to s. 805.07 (2) are modeled on F.R.C.P. 45(a) and (d). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 805.07 (2): Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information. Rule 45(a)(1)(B) is also amended, as is Rule 34(a), to provide that a subpoena is available to permit testing and sampling as well as inspection and copying. As in Rule 34, this change recognizes that on occasion the opportunity to perform testing or sampling may be important, both for documents and for electronically stored information. [Re Order effective Jan. 1, 2011] Judicial Council Note, 2012: ? Sup. Ct. Order No. 12-03 states that “the Judicial Council Notes to Wis. Stat. § 804.01 (2) (c), 804.01 (7), 805.07 (2) (d), and 905.03 (5) are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule." Sub. (2) (d) is modeled on Fed. R. Civ. P. 45(d)(2)(B), which was amended in 2007 to adopt the wording of Rule 26(b)(5)(B), the so-called “clawback" provision of the federal rules. Subsection (3) only authorizes the court to quash a subpoena to compel production of tangible things, not a subpoena to compel attendance of a witnesses. State v. Gilbert, 109 Wis. 2d 501 , 326 N.W.2d 744 (1982).