State Codes and Statutes

State Codes and Statutes

Statutes > Wisconsin > 804 > 804.05

804.05

804.05 Depositions upon oral examination.

804.05(1)

(1) When depositions may be taken. After commencement of the action, except as provided in s. 804.015, any party may take the testimony of any person including a party by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in s. 805.07. The attendance of a party deponent or of an officer, director or managing agent of a party may be compelled by notice to the named person or attorney meeting the requirements of sub. (2) (a). Such notice shall have the force of a subpoena addressed to the deponent. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes, except when the party seeking to take the deposition is the state agency or officer to whose custody the prisoner has been committed.

804.05(2)

(2) Notice of examination: general requirements; special notice; non-stenographic recording; production of documents and things; deposition of organization.

804.05(2)(a)

(a) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena requiring the production of materials is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

804.05(2)(b)

(b) The court may for cause shown enlarge or shorten the time for taking the deposition.

804.05(2)(c)

(c) The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means or videotape means as provided in ss. 885.40 to 885.47, in which event the order shall designate the manner of recording, preserving and filing the deposition and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at the party's expense.

804.05(2)(d)

(d) The notice to a party deponent may be accompanied by a request made in compliance with s. 804.09 for the production of documents and tangible things at the taking of the deposition. The procedure of s. 804.09 shall apply to the request.

804.05(2)(e)

(e) A party may in the notice name as the deponent a public or private corporation or a limited liability company or a partnership or an association or a governmental agency or a state officer in an action arising out of the officer's performance of employment and designate with reasonable particularity the matters on which examination is requested. The organization or state officer so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph does not preclude taking a deposition by any other procedure authorized by statute or rule.

804.05(3)

(3) Depositions; place of examination.

804.05(3)(a)

(a) A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by s. 804.01 (2), but in that event the subpoena will be subject to sub. (2) and s. 804.01 (3).

804.05(3)(b)

(b)

804.05(3)(b)1.

1. Any party may be compelled by notice under sub. (2) to give a deposition at any place within 100 miles from the place where that party resides, is employed or transacts business in person, or at such other convenient place as is fixed by an order of court. A plaintiff may also be compelled by like notice to give a deposition at any place within the county where the action is commenced or is pending.

804.05(3)(b)2.

2. A plaintiff who is not a resident of this state may be compelled by notice under sub. (2) to attend a deposition at the plaintiff's expense at any place within the county where the action is commenced or is pending, or at any place within 100 miles from the place where that plaintiff resides, is employed or transacts business in person, or at such other convenient place as is fixed by an order of court.

804.05(3)(b)3.

3. A defendant who is not a resident of this state may be compelled by subpoena served within this state to give a deposition at any place within 100 miles from the place where that defendant is served.

804.05(3)(b)4.

4. A nonparty deponent may be compelled by subpoena served within this state to give a deposition at any place within 100 miles from the place where the nonparty deponent resides, is employed, transacts business in person or is served, or at such other convenient place as is fixed by an order of court.

804.05(3)(b)5.

5. In this subsection, the terms "defendant" and "plaintiff" include officers, directors, and managing agents of corporate defendants and corporate plaintiffs, or other persons designated under sub. (2) (e), as appropriate. A defendant who asserts a counterclaim or a cross claim shall not be considered a plaintiff within the meaning of this subsection, but a 3rd-party plaintiff under s. 803.05 (1) shall be so considered with respect to the 3rd-party defendant.

804.05(3)(b)6.

6. If a deponent is an officer, director or managing agent of a corporate party, or other person designated under sub. (2) (e), the place of examination shall be determined as if the deponent's place of residence, employment or transacting business in person were that of the party.

804.05(4)

(4) Examination and cross-examination; record of examination; oath; objections.

804.05(4)(a)

(a) Examination and cross-examination of deponents may proceed as permitted at the trial. The officer before whom the deposition is to be taken shall put the deponent on oath and shall personally, or by someone acting under the officer's direction, record the testimony of the deponent. The testimony shall be taken stenographically or by videotape as provided by ss. 885.40 to 885.47 or recorded by any other means ordered in accordance with sub. (2) (c). If the testimony is taken stenographically, it shall be transcribed at the request of one of the parties.

804.05(4)(b)

(b) All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Upon request of any party, where the witness has refused to answer, and with the consent of the court, the court may rule by telephone on any objection. The court's ruling shall be recorded in the same manner as the testimony of the deponent. In the absence of a ruling by the court, the evidence objected to shall be taken subject to the objections.

804.05(4)(c)

(c) In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party shall transmit the questions to the officer, who shall propound them to the witness and record the answers verbatim.

804.05(5)

(5) Motion to terminate or limit examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in s. 804.01 (3). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Section 804.12 (1) (c) applies to the award of expenses incurred in relation to the motion.

804.05(6)

(6) Submission to deponent; changes; signing. If requested by the deponent or any party, when the testimony is fully transcribed the deposition shall be submitted to the deponent for examination and shall be read to or by the deponent. Any changes in form or substance which the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them. The deposition shall then be signed by the deponent, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the deponent within 30 days after its submission to the deponent, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the deponent or the fact of the refusal or failure to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under s. 804.07 (3) (d) the court holds that the reasons given for the refusal or failure to sign require rejection of the deposition in whole or in part.

804.05(7)

(7) Certification and service by officer; exhibits; copies; notice of service.

804.05(7)(a)

(a) The person recording the testimony shall certify on the deposition that the witness was duly sworn by the person and that the deposition is a true record of the testimony given by the deponent. The person shall then securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of (here insert the name of the deponent)" and shall promptly serve it upon the attorney requesting the deposition or send it by registered or certified mail to the attorney requesting the deposition and give notice of the service to all parties and the court.

804.05(7)(b)

(b)

804.05(7)(b)1.

1. Documents and things produced for inspection during the examination of the deponent shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that:

804.05(7)(b)1.a.

a. The person producing the materials may substitute copies to be marked for identification, if the person affords to all parties fair opportunity to verify the copies by comparison with the originals; and

804.05(7)(b)1.b.

b. If the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them.

804.05(7)(b)2.

2. The original materials copied or returned under subd. 1. may be used in the same manner as if annexed to and returned with the deposition to the court, pending final disposition of the case.

804.05(7)(c)

(c) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

804.05(8)

(8) Participation by telephone. Upon notice by any party unless the court otherwise orders for good cause shown, the deponent, the reporter, or any other person participating in a deposition under this section may do so by telephone. Any participant other than the reporter electing to be present with any other participant shall give reasonable notice thereof to the other participants.

804.05 - ANNOT.

History: Sup. Ct. Order, 67 Wis. 2d 585, 665 (1975); Sup. Ct. Order, 67 Wis. 2d vii (1975); 1975 c. 218; 1979 c. 110; 1983 a. 189; Sup. Ct. Order, 130 Wis. 2d xi, xix (1986); Sup. Ct. Order, 141 Wis. 2d xiii (1987); Sup. Ct. Order, 158 Wis. 2d xvii (1990); 1991 a. 189; 1993 a. 112; 1997 a. 35, 133, 254; 2005 a. 253; 2007 a. 97; 2009 a. 180.

804.05 - ANNOT.

Judicial Council Committee's Note, 1975: Subs. (2) (c) and (4) (a) are amended to recognize the Wisconsin Rules of Videotape Procedure and to make certain that a motion to the court is not required prior to taking a videotape deposition. [Re Order eff. Jan. 1, 1976]

804.05 - ANNOT.

Judicial Council Notes, 1986: Sub. (3) (b) is amended to conform the territorial scope of deposition notices and subpoenas to the 100-mile provision of Rule 45 (d), F.R.C.P. as amended in 1985. [Re Order eff. 7-1-86]

804.05 - ANNOT.

Sub. (7) (a) is amended to require that the deposition be served upon the attorney rather than filed in court. See s. 804.01 (6). [Re Order eff. 7-1-86]

804.05 - ANNOT.

Judicial Council Note, 1988: Sub. (4) (b) is amended to allow contact with the court by telephone to obtain its ruling on any objection, on request of any party and with the consent of the court.

804.05 - ANNOT.

Sub. (8) [created] allows any person to participate in a deposition by telephone upon notice by any party unless good cause to the contrary is shown. [Re Order eff. Jan. 1, 1988]

804.05 - ANNOT.

Judicial Council Note, 1990: Sub. (8) is amended to clarify that reasonable advance notice to all participants is required if any participant to a deposition to be taken by telephone elects to be present with any other participant. The requirement is aimed primarily at the situation in which one party is in the physical presence of the deponent, while others are not, by allowing others to be present if they choose. [Re Order, eff. 1-1-91]

804.05 - ANNOT.

A highly placed state official who seeks a protective order should not be compelled to testify on deposition unless a clear showing is made that the deposition is necessary to prevent prejudice or injustice. State v. Beloit Concrete Stone Co. 103 Wis. 2d 506, 309 N.W.2d 28 (Ct. App. 1981).

804.05 - ANNOT.

While not subject to the rules of civil procedure, the department of revenue's subpoena authority does not permit it to take possession of subpoenaed records for more than one business day. The department may however repeatedly subpoena records until its investigation is completed. State v. Kielisch, 123 Wis. 2d 125, 365 N.W.2d 904 (Ct. App. 1985).