887.26 Depositions outside state.

(1) How taken. In any civil action, proceeding, or matter in which depositions may be taken within this state, the deposition of any witness 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 questions as provided in this section.

(4) Commission to take. A commission may issue from any court of record to take the deposition of any witness outside the state, after commencement of the action, except as provided in s. 804.015 or as provided in s. 804.02 (1), for any cause 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).

(5) Procuring commission.

(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.

(bm) Written questions.

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 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 the 5-day period, the opposite party may file with the clerk and serve upon the other party any objections to the issuance of the commission and serve his or her 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.

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.

3. At the expiration of the period under subds. 1. and 2., and if no objection to the issuance of the commission has been received or sustained the commission shall issue, with the 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 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 residence is not given as required.

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.

(6) Duty of commissioner — examination and cross-examination; record.

(am) Oral examination. Testimony shall be taken in the manner provided by s. 804.05 (4) to (6).

(bm) Examination by written questions. Testimony shall be taken in the manner provided by s. 804.06 (2).

(cm) Certification and service by officer; exhibits; copies; notice of service. 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.

(7) Fees. The persons who take or transcribe the depositions and the witness shall be entitled to the fees allowed court reporters under s. 814.69 (1) and witnesses for similar service by the law of this state, or as may be prescribed by the law of the state or country where taken.

History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1975 c. 218; 1977 c. 187 s. 135; 1977 c. 323 s. 16; 1981 c. 317 s. 2202; 1993 a. 486; 2001 a. 61; Sup. Ct. Order No. 05-06, 2008 WI 32, 305 Wis. 2d xix; Sup. Ct. Order No. 08-19, 2008 WI 105, 307 Wis. 2d xiii; Sup. Ct. Order No. 09-03, 2010 WI 100, filed 7-27-10, eff. 1-1-11.