ACT 235 REVISITED: Further analysis of civil-procedure changes.

Byline: WISCONSIN LAW JOURNAL STAFF

Last summer, we wrote an article, "Sweeping Changes to Rules of Civil Procedure," published in the June 2018 issue of the Wisconsin Lawyer. Our article was designed to be a neutral and factual accounting, for the benefit of the Wisconsin bench and bar, of the significant recent changes to Wisconsin's Rules of Civil Procedure.

In their opinion piece "Please, not so fast! The haste to alter the rules of civil procedure" in last month's issue of the Wisconsin Law Journal, the Honorable Eugene A. Gasiorkiewicz and William C. Gleisner discussed our article as a means to criticize the substance of those changes, and the manner in which the Wisconsin legislature enacted them. Because these matters (and our article discussing them) continue to be the subject of spirited debate, and to give readers context for the commentary in "Please, not so fast," we reprint our article in this issue of the Wisconsin Law Journal. We hope this article provides the Wisconsin legalprofession with a deeper understanding of the new rules.

Lawmakers, judges and lawyers have all struggled to find the appropriate balance between the ideasof liberal discovery, designed to ensure that every party can secure the best facts to support its positions, and the rising cost of litigation, much of which is spent on discovery, especially of electronic information.

With the chief stated aim of making litigation in Wisconsin courts less expensive, the Wisconsin Legislature in 2018 established new rules thatgreatly alter Wisconsin civil procedure. The rules, enacted in 2017 Wis. Act 235,1 will undoubtedly affect the balance between the pursuit of a case's merits in discovery and the expense of that pursuit. The act also reduces the statutory limitations or repose periods for several causes of action,deals with third-party litigation funding and reduces the interest rate on overdue insurance payments, among other revisions to Wisconsin law. All civil litigants in Wisconsin courts need to be aware of these important changes.

Theact's unusual history

Normally, the Wisconsin Supreme Court proposes new rules of civil procedure through a deliberative process that includes the Wisconsin Judicial Council, which is a body of judges, legislators, lawyers and academicswhoadvise the supreme courton rule changes and civil practice. After receiving advice from the Judicial Council, the supreme court is required to hold a public hearing before any changes are approved, and to delay implementation to give lawyers and judges time tocomprehendthe changes.

In a significant departure from standard practice, the Legislature exercised its powers under Wis. Stat. section 751.12 tocarry out the changes directly, without consulting or involving the Wisconsin Supreme Court or the Judicial Council.Although the act was supported by several local and national business and advocacy groups, legal groups objected to the Legislature's decision to make sweeping changes to Wisconsin procedural law without using thestandardrule-making process.

New discovery rules

The actdeals with several unrelated subjects, but most of its provisions amend the Wisconsin Rules of Civil Procedure. Many of the changes mirror the 2015 amendments to the Federal Rules of Civil Procedure.

The new proportionality standard

Most importantly, the act adopts the proportionality standard from the 2015 Federal Rules amendments. Under the federal rules and now Wisconsin law, parties may obtain discovery regarding non-privileged matters that are relevant to any party's claims or defenses 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.2

Although the material or information sought must be both relevant and proportional, it need not be admissible in evidence to be discoverable.3

Adopting a proportionality standard as part of the scope of discovery4 was one of the key aspects of the 2015 amendments to the federal rules, which grew out of the Duke Conference, a gathering of judges, lawyers and professors held in 2010 to consider revisions to the federal rules. Participants noted that the costs of discovery in civil litigation are often out of proportion to the issues at stake, resulting in meritorious cases not being filed, being settled too quickly, or being pursued in alternative dispute vehicles such as arbitration.5

Although many participants expressed concern that theidea of proportionality would ultimately favor defendants, the advisory committee on the federal rules ultimately concluded that, with careful specification of the factors to be considered when evaluating proportionality, the rule changes would, on balance, lower the cost of litigation and improve federal practice.6 Wisconsin courts will have the benefit of the early federal experience in interpreting this new standard.

Adopting the 2015 federal-rules amendments

The act also follows the 2015 federal-rules amendments by including provisions making explicit that: 1) it is the obligation of both courts and parties to ensure the just, speedy and inexpensive determination of actions;7 2) courts, in...