Important Changes to Litigation in Wisconsin on the Horizon

On April 3, 2018, the Wisconsin legislature enacted 2017 Wisconsin Act 235, which includes several reforms to litigation taking place in Wisconsin state courts.  The changes include a new definition of what is “discoverable” in litigation, limitations and alterations to certain aspects of discovery and changes to several statutes of limitation.  Below is a short summary of a few of the more important changes.  Attorneys practicing law in Wisconsin should be aware of these changes, which will take effect July 1, 2018.

  • Act 235 changes the standard for what is discoverable in Wisconsin to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Wis. Stat. 804.01(2). Thus, the statute now includes a contemplated balancing test instead of the prior statute which made discoverable “any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .”
  • It also shortens the statute of limitations on several claims. First, for actions to recover damages for an injury to the character or rights of another, it is shortened from six years to three years, unless a different period is expressly prescribed. Wis. Stat. § 893.53.  While obviously untested, this may provide an argument that the statute of limitations on federal Section 1983 claims is also shortened to three years as this is the statute courts previously relied on in determining the applicable statute of limitations for such claims. See Hemberger v. Bitzer, 216 Wis. 2d 509, 519, 574 N.W.2d 656, 660 (1998).  Second, for actions for injuries resulting from improvements to real property, it shortens the statute of limitations from 10 years to seven years. Wis. Stat. § 893.89(1).
  • Act 235 also includes an important change that stays all discovery requests upon the filing of a motion to dismiss, a motion for judgment on the pleadings, or a motion for a more definite statement, “unless the court finds good cause upon the motion of any party that particularized discovery is necessary.” Wis. Stat. § 802.06(1)(b).
  • Further, it sets forth some specific limitations on certain categories of electronically stored information, absent a showing by the moving party of a substantial need and good cause which is subject to a proportionality assessment. Wis. Stat. § 804.01(2)(e)1g.
  • The Act also provides limits on the amount of discovery which, previously, was usually only contained in local court rules, if at all. First, it includes a section that limits a party, unless otherwise stipulated or ordered by the court, to a reasonable number of depositions, not to exceed 10 depositions, none of which may exceed seven hours in duration. Wis. Stat. § 804.045.  Second, it limits a party, unless otherwise stipulated or ordered by the court, to a reasonable number of interrogatory requests, not to exceed 25 interrogatories, including all subparts. Wis. Stat. § 804.08(1)(am).
  • Finally, while not a part of this Act, all attorneys should be aware of the new class action statute – found at Wis. Stat. 803.08 – which completely revamps Wisconsin’s class action procedures. Previously, Wisconsin’s class action statute said next to nothing of substance and provided little guidance to parties.  The new class action statute is much more detailed and is modeled after the federal rule.

If you would like to review the changes in more detail, 2017 Wisconsin Act 235 can be located here.

If you have any questions regarding this article, please contact its author, Aaron Graf, at 414-727-6290 or agraf@mzmilw.com.

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