2008 WI 32
Supreme Court of
This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
In the matter of Proposed Amendment to
APR 29, 2008
David R. Schanker
Clerk of Supreme Court
On June 15, 2005, the Judicial Council filed a petition
proposing certain amendments
to Wis. Stat. § 887.26, relating to requirements for depositions conducted outside
the state of
IT IS ORDERED that, effective July 1, 2008, 887.26 of the statutes is amended as follows:
Section 1. 887.26 (title) and (1) of the statutes are amended to read:
887.26 (title) Depositions
this outside state by commission. (1) How taken. In any civil action, proceeding, or
matter in which depositions may be taken within this state, the deposition of
any witness without outside the
state may be taken before any officer as provided in s. 804.03 (1) or (2) or
as provided in the rules of the state or country where taken. Depositions outside the state may be taken
orally or upon written interrogatories questions as provided in this section.
Section 2. Section 887.26 (4) of the statutes is amended to read:
887.26 (4) Commission to
take. A commission may issue from any court of
record to take the deposition of any witness
the state, where an issue of fact has been joined or the
time therefor has expired ,
after commencement of the action, except as provided in s. 804.015 or as
provided in s. 804.02 (1), for any cause which shall be that is deemed
sufficient by the court, or when required for use on any trial or hearing or upon
any motion or proceeding. The commission
shall be signed by the clerk and sealed and shall be accompanied by a copy of
subs. (4), (5), and (6).
(bm) 1. The
party person desiring a
commission shall prepare interrogatories a notice of
intent to obtain a commission and state in the caption thereof
of the notice of intent the name of the commissioner proposed by
the party, the name of the witness and the
his or her residence of each with particularity, and
shall serve a copy thereof of the notice of intent
on the opposite party, with a notice that, at the expiration of 10
5 days from the date of such service the notice of
intent, a commission will be issued to take the deposition of the witness,
directed to the court of jurisdiction of the residence of the witness,
requesting that a subpoena issue from that court compelling the deposition upon
written questions of the witness, and specifying the reason for taking the
same. The notice of intent shall be
accompanied by the questions. Within
such time the 5-day period, the opposite party may
file with the clerk and serve upon the other his or her party
any objections , to the interrogatories proposed and to the
competency of the witness and to the issuance of the commission and
serve his or her cross-interrogatories cross-questions;
and state the name and residence of any person whom the opposite party desires
to act as an additional commissioner, who must reside in the county in which
the commissioner first named resides, and may serve any objections to the
questions and any cross-questions.
Section 4. Section 887.26 (5) (am) of the statutes is created to read:
887.26 (5) (am) Oral Depositions. 1. The person desiring a commission shall prepare a notice of intent to obtain a commission and state in the caption of the notice of intent the name of the witness and his or her residence with particularity, and shall serve a copy of the notice of intent on the opposite party, with a notice that, at the expiration of 5 days from the date of the notice of intent, a commission will be issued directed to the court of jurisdiction of the residence of the witness, requesting that a subpoena issue from that court compelling the oral deposition of the witness, and specifying the reason for taking the same. Within the 5-day period the opposite party may file with the clerk and serve upon the other party objections to the issuance of the commission.
2. At the expiration of the 5 days, and no objection being received or sustained, the commission shall issue as provided in sub. (4). At the noticing person’s expense, the commission shall be transmitted to the court of jurisdiction of residence of the witness, for issuance of the deposition subpoena in accord with the rules applicable to that court. No commission shall issue if the witness’s residence is not given as required.
Section 5. Section 887.26 (5) (b) of the statutes is renumbered 887.26 (5) (bm) 3. and amended to read:
(5) (bm) 3. At the
expiration of the time limited, the
moving party may file the notice and interrogatories, with proof of service
thereof and the moving parties' objections to the cross-interrogatories. The moving party may also serve redirect
interrogatories on the opposite party, who may, within 3 days after such
service, file objections to such redirect interrogatories. Thereupon period under sub. (b) 1. and (b) 2., and if no
objection to the issuance of the commission has been received or sustained
the commission shall be issued issue, with the interrogatories written questions, direct, cross and redirect, and all objections,
and transmitted to the commissioner first named by mail or express at the
expense of the moving party. But when
any defendant shall not have appeared and the time for the defendant to plead has expired, no notice
is required to be given such defendant, and the commission may issue on filing
the direct interrogatories questions as provided in sub. (4). At the noticing person's expense, the
commission shall be transmitted to the court of jurisdiction of the residence
of the witness, for issuance of the subpoena in accord with the rules
applicable to that court. No commission shall issue if the witness's
residences are residence is
not given as required.
Section 6. Section 887.26 (5) (bm) (title), 2., 4. and (c) of the statutes are created to read:
2. If cross-questions are served, within 3 days after such service the noticing person may also serve redirect questions on the opposite party, who may, within 3 days after such service, serve objections to such redirect questions.
4. Upon issuance of the commission, the noticing person shall transmit to the officer taking or transcribing the deposition, by mail or express, the direct, cross, and redirect questions, and the objections to the questions.
(c) Before Commencement of Action. When testimony is sought of a witness outside the state before commencement of an action as provided in s. 804.02 (1), the order issued under s. 804.02 (1) (c) shall also include a commission in the form provided by sub. (4) of this section.
887.26 (6) (title) Duty of Commissioner Commissioner—Examination and Cross-Examination; Record.
Section 8. Section 887.26 (6) (a) of the statutes is renumbered 887.26 (6) (cm) and amended to read:
887.26 (6) (cm)
The commissioner first named shall fix the time and place for
executing the commission and give the other commissioner one day's notice if
residing in the same place, and when not, one day's notice in addition for
every 30 miles of distance between the place of residence and the place fixed
for executing the commission. If the notice be by mail double time shall be
allowed; but notice may be waived in writing or by appearance at the execution
of the commission. If there be 2 commissioners the commission shall be executed
in the county where they reside, unless they agree upon another. The commissioner first named taking or transcribing the
deposition shall have charge of and return the deposition, which return
shall be in the same form and manner directed by the commission or as
provided by s.
804.05 (7). If either commissioner
shall not attend at the time and place so fixed, the other may execute the
commission with like effect as if both were present, but such commissioner must
certify in the return that the other had due notice but failed to attend.
Section 9. Sections 887.26 (6) (am) and (bm) of the statutes are created to read:
887.26 (6) (am) Oral Examination. Testimony shall be taken in the manner provided by ss. 804.05 (4) to (6).
(bm) Examination by Written Questions. Testimony shall be taken in the manner provided by s. 804.06(2).
Section 10. Sections 887.26 (6) (b), (c) and (d) of the statutes are repealed.
Section 11. Section 887.26 (6) (cm) (title) of the statutes is created to read:
887.26 (6) (cm) (title) Certification and Service by Officer; Exhibits; Copies; Notice of Service.
Section 12. Section 887.26 (7) of the statutes is amended to read:
887.26 (7) Fees. The persons who take or transcribe the depositions and the witness shall be entitled to the fees allowed supplemental court commissioners reporters under s. 814.68 814.69 (1) and witnesses for similar service by the law of this state, or such as may be prescribed by the law of the state or country where taken.
Section 13. Section 887.26 (8) of the statutes is amended to read:
887.26 (8) Translations. When the witness is unable to speak the English language, the judge of the court from which the commission issues may appoint some competent and disinterested person to translate the commission, rules, interrogatories and cross-interrogatories, or such, at the expense of the noticing person, the subpoena, rules, and deposition questions and answers, or any part thereof as may be necessary, from the English into the language spoken used by the witness or vice versa; and such translation shall be sent to the commissioner in place of the original papers that have been translated. Upon the return of the commission and deposition, such judge shall in like manner cause the answers of the witness and the exhibits to be translated into English, as well as all other proceedings in a foreign language, and such translation to be filed the translation shall be transcribed and maintained as part of the deposition transcript. The translator shall append to all translations the translator's affidavit that the translator knows the English and such foreign the language of the witness, and that in making such translation the translator carefully and truly translated such the proceedings from the English into such foreign the witness's language or from the witness's language into English, and that such the translation is correct. Such A translation under this paragraph shall have the same effect as if all the proceedings were in English, but the trial circuit court, upon the deposition being offered in evidence, may admit the testimony of witnesses learned in such foreign the language of the deposed witness for the purpose of correcting errors therein; and, if it shall appear that the first translation was in any respect so incorrect as to mislead the witness, the court may, in its discretion, continue the cause for the further taking of testimony.
IT IS FURTHER ORDERED that notice of these amendments be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
ANNETTE KINGSLAND ZIEGLER, J., did not participate.
BY THE COURT:
David R. Schanker
Clerk of Supreme Court