HOW TO DOMESTICATE A FOREIGN SUBPOENA IN Wisconsin

To have a Wisconsin circuit court clerk issue a subpoena, a party must first submit the international subpoena to the clerk of the county in which discovery is to be performed in Wisconsin. This must be done with a Wisconsin subpoena form, indicating the Wisconsin court where the subpoena was issued in the county where the discovery was to be done. The county where the subpoenaed party lives are where discovery takes place. 

A company's discovery must occur in the county with a significant commercial presence. The witness's full address, including the county in which they live, must be included on the subpoena.

Uniform Interstate Depositions and Discovery Act (UIDDA)-Wisconsin

The Uniform Interstate Deposition and Discovery Act (‘UIDDA’) is a model act developed by the Uniform Law Commission to simplify the process of conducting out-of-state discovery for a matter venued in state court. Wisconsin adopted provisions of the UIDDA on January 1, 2016, making the process of conducting discovery in a case venued in another state more straightforward. 

In 2007, the UIDDA was initially adopted with the intention of harmonizing the procedure for receiving discovery from another state with the Federal Rule of Civil Procedure 45. Since 2007, most states have gradually embraced the Act in different incarnations. Despite the UIDDA's consistency, practitioners still need to review the requirements of the state where their case is located, and the state where they desire to seek discovery since certain jurisdictions (such as Wisconsin) have opted to adopt the provisions in the model act before adopting it. 

 The circuit court clerk in this state must quickly sign and issue the UIDDA and Wisconsin subpoena for service upon the person to whom the foreign subpoena is addressed when a party presents such a subpoena to the clerk. An alternative is for a party to hire a lawyer admitted to practice law in Wisconsin to serve as an officer of the court and sign and issue the UIDDA and Wisconsin subpoena. Requesting a subpoena as per the UIDDA and Wisconsin requirements does not constitute a court presence in this state.

LITIGATION PROCEEDINGS IN A FOREIGN COURT

It is necessary to provide the foreign jurisdiction's docket number and the case's title when attaching a copy of the foreign subpoena. Consequently, it is necessary to modify the document to incorporate the language used therein as per the UIDDA and Wisconsin requirements. The foreign subpoena must include or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the action to which the subpoena pertains, as well as those of any party not represented by counsel.

An out-of-state litigant has two options for conducting discovery in Wisconsin. One option is for the party to provide the county's clerk where discovery is to be performed as per the UIDDA and Wisconsin with a valid international subpoena and a copy of the applicable subpoena form.  The clerk must quickly sign and issue the UIDDA and Wisconsin subpoena for service to the person the foreign subpoena addresses.  When UIDDA and Wisconsin discovery is started, the clerk of the circuit court will not start a case file or charge a fee.

Alternatively, a party may hire a lawyer admitted to or permitted to practice law in Wisconsin to serve as the court's officer and sign and issue the UIDDA and Wisconsin subpoena. Naturally, the subpoena must also conform to the other standards for subpoena forms that have already been outlined. Significantly deviating from the Uniform Rule, it allows a Wisconsin-licensed attorney to issue an out-of-state subpoena if retained by a party to the out-of-state action and provided with the original or a genuine copy of the subpoena.

WHAT IS A SUBPOENAED INDIVIDUAL REQUIRED TO DO IN WISCONSIN

Under the UIDDA and Wisconsin regulations, the attorney who requests discovery is responsible for keeping a copy of the original subpoena and the evidence of service. For either choice of UIDDA and Wisconsin service, a file will not be generated by the circuit court clerk until a special procedure is started to enforce, quash, or alter the subpoena.

Subpoenaed individuals, as in the past, must appear for any UIDDA and Wisconsin discovery concerning them, such as a deposition, in their home county. Suppose the subpoena is sent to a legal entity rather than an individual. In that case, however, the UIDDA and Wisconsin discovery process must occur in the county where the corporation has a ‘substantial commercial presence.’

HOW IS A FOREIGN SUBPOENA ENACTED IN WISCONSIN

Suppose an action is instituted in the originating state and the deposition witness is a Wisconsin resident. In that case, the subpoena must be issued in the originating state by an attorney of record for a party to an action to be served (the same way lawyers in the state routinely issue subpoenas in pending actions). The attorney next requests a subpoena from the Wisconsin county clerk where the deponent resides. The attorney then drafts a subpoena for the state of Wisconsin that is identical to the one issued in the originating state. The attorney then delivers the completed and signed UIDDA and Wisconsin subpoena from the originating state and the completed but unsigned subpoena from Wisconsin to the Wisconsin clerk's office. 

The attorney may draught a brief transmittal letter to inform the originating court clerk that the UIDDA and Wisconsin subpoena is being sought by Wis. Stat. 887.24 and that it will be sent together with the original subpoena. After receiving the original subpoena, the Wisconsin court clerk will issue a similar document. The last step is for the party's process server (or other agency) to serve the deponent with the UIDDA and Wisconsin subpoena legally.

All other filings in any special proceeding in Wisconsin to challenge, enforce, or modify the subpoena must be made with the circuit court in the county where UIDDA and Wisconsin discovery is to be conducted and must comply with the applicable UIDDA and Wisconsin rules or statutes. 

The laws of the state where the discovery took place must be followed in case of any special UIDDA and Wisconsin process, such as a request for a protective order or a motion to enforce, quash, or alter a subpoena. The discovery state's regulations on procedure, evidence, and conflicts of laws apply here. The Act makes it clear that the discovery state has an important interest in shielding non-party witnesses who live in that state from unreasonable or overly onerous UIDDA and Wisconsin discovery demands made by opposing parties in a foreign case.

HOW THE UIDDA AND WISCONSIN WORK

Subpoena service in Wisconsin is now possible without the necessity for out-of-state litigants to retain Wisconsin local counsel for cases that are being heard in state court. However, Wisconsin litigants who have their case assigned to a circuit court must still acquire a commission before following the local UIDDA and Wisconsin process for serving their subpoena in the state where discovery is being sought. 

To have a subpoena issued for testimony or documentary evidence to be given or produced in Wisconsin, a party in out-of-state litigation would have earlier needed to obtain the appropriate commissions from the court handling the underlying litigation and then file those commissions along with the necessary petition materials in a Wisconsin court. Due to Wisconsin's adoption of the Uniform Interstate Depositions and Discovery Act, however, this procedure has now become more streamlined.

It is important to note that a party filing a subpoena in Wisconsin has not ‘appeared’ as counsel; therefore, a non-resident party in a state court matter venued elsewhere does not need pro hac vice admission or local counsel to seek UIDDA and Wisconsin discovery from the resident party. Any application to enforce, quash, or amend a subpoena made or answered in the discovery state must be made or answered in accordance with the rules governing attorneys appearing in the courts of the discovery state. Existing state laws regarding out-of-state attorneys appearing in Wisconsin courts are unaffected by the state's partial adoption of the UIDDA.

State court litigants in Wisconsin who choose to conduct discovery in a venue outside of Wisconsin are still subject to the same rules. The enactment of Wis. Stat. 887.24 does not affect the method for taking discovery from a non-Wisconsin party in a matter proceeding in Wisconsin, which is to go through the commission process provided in Wis. Stat. 887.26. If a party in a Wisconsin state court case wants to conduct UIDDA and Wisconsin discovery in another state, they will need to research the relevant service of process statutes there.

States that continue to need a commission or letter rogatory to take a deposition in a foreign jurisdiction are not affected by the UIDDA and remain subject to those laws. However, the Act does away with the need for a trial state to provide a commission or letter rogatory before a deposition may be given in a state where UIDDA and Wisconsin discovery is being sought.

Requesting the issuance of a subpoena through either of the prescribed methods will not constitute an appearance in Wisconsin courts, thereby avoiding any potential conflicts with the rules relating to the unauthorized practice of law. However, if a protective order is needed because of the subpoena or if the subpoena has to be enforced, quashed, or modified, a separate procedure must be initiated in the county's circuit court where the UIDDA and Wisconsin discovery is sought.

Wisconsin

Uniform Interstate Depositions and Discovery Act Adopted - 2016
Bill Number: Court Rule
WIS. STAT. ANN. § 887.24
Subpoena Form:Click Here
Wisconsin Courts Click Here

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Sources

1. Court Rule WIS. STAT. ANN. 887.24 Adoption of the Uniform Interstate Depositions and Discovery Act, 2016 Legislative Bill Number

2. Wis. Stat. 887.24 is a new law incorporating key provisions of the UIDDA and governs discovery in Wisconsin for cases filed in state courts outside Wisconsin.

3. The following items must be included on the subpoena:

1. The county in Wisconsin where the discovery is being sought and the court issuing the subpoena; 
2. The name of the action and the foreign jurisdiction's docket number; 
3. The terms used in the foreign subpoena and a copy of the foreign subpoena as an attachment;
4. The names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel

 As stated in the statutory notes, a subpoena may change its provisions, such as the time and place of deposition.

4. If a party complies with the criteria of Wis. Stat. 887.24(3)(a).

5 . This is required under Wis. Stat. 805.05.

6. According to the explanatory notes, neither party is precluded from seeking relief in the state where the case is venued under Wis. Stat. 887.24. The parties may file any motions before the court that affect just themselves in the venue state. The remarks also serve as a gentle reminder to lawyers that ‘[e]videntiary problems that may arise, such as objections based on grounds such as relevance or privilege, are best addressed in the discovery state under the laws of the discovery state (including its conflict of laws rules).’

7. Including the service requirements under Wis. Stat. 801.14(2). According to Wis. Stat. ch. 814, if the individual wants to apply to enforce a subpoena, they will need to provide documentation that the subpoena was served on the defendant. All parties, including the witness, must be served with every document filed in a special action. But a summons isn't needed to get things started, and service by mail or facsimile is allowed under Section 801.14. 

8. For filing an appeal under Wis. Stat. 808.03, a final decision granting, refusing, or resolving an application for a special procedure is a final order (1).

9. In a special action, the court has the discretion to pay the successful party its reasonable attorneys' fees and costs. Motions to compel and for protective orders in discovery conflicts according to Wis. Stat. 804.12(1)(c) and 804.01(3) are compatible with this provision.

10. The Uniform Comments (Comments to the Uniform Interstate Depositions and Discovery Act) and the Judicial Council Committee Notes are not adopted but will be published and may be consulted for guidance in interpreting and applying the rule, as stated in Wisconsin Supreme Court Order No. 13-16A (July 7, 2015). For instance, the Act only applies to discovery in state courts, as stated in Uniform Comment 2, and has no bearing on international proceedings. The Committee Notes also make it clear that a subpoena for the examination of a person is not included in the scope of the term ‘subpoena.’ Personal injury cases, for instance, are governed by state discovery procedures in a way that does not apply to medical investigations (the corresponding federal rule is Fed. R. Civ. P. 35). Since the trial state already has jurisdiction over the plaintiff, a subpoena is unnecessary.

11. Even though Wisconsin attorneys won't have to act as local counsel to petition a Wisconsin court for out-of-state parties to obtain discovery, they should still be familiar with the rule change so that they can effectively advise out-of-state attorneys and parties on how to obtain discovery in Wisconsin, and so that they can issue subpoenas for discovery from witnesses located in Wisconsin for use in litigation pending elsewhere.

12. While specific instructions for serving discovery subpoenas have been produced by Dane County and Milwaukee County, the gist of the procedure is the same across the state.