Compelling discovery in Wisconsin: fees follow the result — and can land on the attorney

Wisconsin's discovery-sanctions statute has a feature that should change how these motions are written: the fee award can be made against the lawyer, not only the party.

That appears on both sides of the motion — against the attorney who advised the conduct that made the motion necessary, and against the attorney who advised an unsuccessful motion.

The motion

Wis. Stat. § 804.12(1)(a):

Motion. If a deponent fails to answer a question propounded or submitted under s. 804.05 or 804.06, or a corporation or other entity fails to make a designation under s. 804.05 (2) (e) or 804.06 (1), or a party fails to answer an interrogatory submitted under s. 804.08, or if a party, in response to a request for inspection submitted under s. 804.09, fails to produce documents or fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he or she applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to s. 804.01 (3).

One motion covers the lot — depositions, corporate designations, interrogatories and inspection requests. And the opening words of subsection (1) require "reasonable notice to other parties and all persons affected thereby", which reaches non-parties.

Note the last sentence: a denied motion can produce a protective order against the movant. Filing is not risk-free even before costs.

Evasive answers are failures

§ 804.12(1)(b) is one sentence and it does a lot of work:

Evasive or incomplete answer. For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer.

So the target is not only silence. An answer that responds without answering is a failure to answer, and should be described that way in the motion.

Fees — and the attorney

§ 804.12(1)(c):

Award of expenses of motion. 1. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. 2. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. 3. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

Three points.

"Shall" in both directions. The award is the default, not the exception, whichever way the motion goes. The escape is a finding that the losing position was substantially justified or that an award would be unjust.

"Or the party or attorney advising such conduct or both of them." Wisconsin puts the lawyer in the frame explicitly — for advising the withholding, and for advising a losing motion.

Partial success apportions. A motion granted in part and denied in part leads to apportionment rather than a clean win, which is a reason to narrow what you ask for.

If the order is disobeyed

§ 804.12(2)(a) sets out the escalation, and it is broad:

If a party or an officer, director, or managing agent of a party or a person designated under s. 804.05 (2) (e) or 804.06 (1) to testify on behalf of a party fails to obey an order to provide or permit discovery … the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: 1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence; 3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; 4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical, mental or vocational examination.

Establishment of facts, preclusion, striking pleadings, dismissal, default, contempt. The one carve-out from contempt is a failure to submit to a physical, mental or vocational examination.

And fees again, mandatory, with the attorney exposed. § 804.12(2)(b):

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Refusing to admit has its own price

§ 804.12(3) covers requests for admission, and it is a separate remedy from the motion to compel:

EXPENSES ON FAILURE TO ADMIT. If a party fails to admit the genuineness of any document or the truth of any matter as requested under s. 804.11, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in the making of that proof, including reasonable attorney fees. The court shall make the order unless it finds that (a) the request was held objectionable pursuant to sub. (1), or (b) the admission sought was of no substantial importance, or (c) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (d) there was other good reason for the failure to admit.

"The court shall make the order unless" — four exceptions, and the third is the one that usually saves a denial: a reasonable ground to believe you might prevail.

How Wisconsin compares

A short checklist

1. Confer before filing. Even where the statute does not spell it out, an unexplained motion invites a "substantially justified" finding against you.
2. Describe evasive answers as failures to answer — the statute treats them that way.
3. Narrow what you ask for. Partial success means apportioned costs, not a clean award.
4. Remember the attorney exposure, on both sides. This is not a costless motion for counsel.
5. Ask for a specific compliance date in the proposed order; the escalation in subsection (2) depends on there being an order to disobey.
6. If you are opposing, put your justification on the record. "Substantially justified" is the only real defence to a fee award.
7. For a refusal to admit, use § 804.12(3) separately — it is a different remedy with different exceptions.
8. Watch the interaction with the 180-day stay under § 802.06(1)(b) — see the Wisconsin motion to dismiss — and with the eight-month summary judgment window in opposing summary judgment.

Where these rules live

• Wis. Stat. § 804.01 — Discovery scope and protective orders
• Wis. Stat. § 804.08 — Interrogatories to parties
• Wis. Stat. § 804.09 — Production of documents and things
• Wis. Stat. § 804.11 — Requests for admission
• Wis. Stat. § 804.12 — Failure to make discovery; sanctions
• Wis. Stat. § 802.06 — Defenses and objection to pleadings

This page explains what the statute says. It isn't legal advice, and what makes a position substantially justified under § 804.12 is developed in case law this site doesn't cover.