Wisconsin Business and Commercial Litigation

In Luckett v. Bodner, 2009 WI 68, the Supreme Court exhaustively (I’m not kidding — the thing is 70 pages long) addressed the standards for withdrawal of an admission.  You may prefer to read the summary by Alex De Grande of the Wisconsin State Bar (for some reason that link’s not working, but you can find the article, for the moment, at www.wisbar.org) which distills the opinion to a more manageable length. 

Requests to admit are very handy tools to narrow the issues that must be tried, and for pinpointing areas of need for both parties.  And, despite my griping about the length of the discussion, it’s good to have a detailed review of this somewhat under-served procedural implement. 

The Court wasted little time in deciding that the trial court properly exercised its discretion by permitting the withdrawal in that the withdrawal would aid in the ascertainment of truth and the development of the merits (which seems fairly obvious).  The sweet marshmallow center of the opinion (depending, as always, upon which side of the dispute you fall) is this:

The “prejudice” contemplated by Wis. Stat. § 804.11(2) “is not simply that a party [obtaining the admissions] would be worse off without the admissions.”  To demonstrate prejudice in maintaining the action or defense on the merits, the party who obtained the admission “must show prejudice in addition to the inherent consequence that the party will now have to prove something that would have been deemed conclusively established if the opposing party were held to its admissions.”

 Prejudice in maintaining the action or defense on the merits “relates to the difficulty a party [here the defendants] may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence with respect to the questions previously answered by the admissions.”

The prejudice inquiry requires a court to “focus on the prejudice that the nonmoving party [here the defendants] would suffer at trial.”

It is the defendants’ burden to demonstrate that withdrawal or amendment of the admissions will prejudice them in maintaining their defense on the merits.

The defendants made a variety of prejudice assertions, none of which convinced the Court.  The lone dissenter, Justice Prosser, makes an impassioned argument for overturning the lower court’s decision. 

Whether you agree or disagree with the holding, this case is sure to provide some bullets for your next round of discovery skirmishes.

In Parker v. Wisconsin Patients Compensation Fund, 2009 WI App 42, the District 4 Court of Appeals addressed the standards governing trial court scheduling order decisions.  The issue arose when the plaintiff argued that the key defense expert should have been barred from testifying because the defense failed to name the expert by the date.

For those worried about timely performance under scheduling orders, the most important discussion in the opinion is:

Consistent with Schneller II, we conclude that the excusable neglect standard set forth in Wis. Stat § 801.15(2)(a) does not apply to untimely motions to enlarge scheduling order deadlines. Rather, Wis. Stat. § 802.10 provides the “standards and procedures” courts apply to such motions. Moreover, requiring courts to evaluate untimely motions under the excusable neglect standard would infringe upon the circuit court’s broad discretion in addressing untimely motions to amend scheduling orders. See Teff, 265 Wis. 2d 703, ¶29; see also City of Sun Prairie v Davis, 226 Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999) (courts have inherent authority to take actions that ensure their efficient and effective function).  As the supreme court explained in Schneller II, 162 Wis. 2d at 310, such discretion “permits the court to take steps ranging from granting the requested relief to dismissing the moving party’s case, [and] is absolutely essential to the court’s ability to efficiently and effectively administer its calendar.”

This comes as relatively good news to those who hope to convince a court that missing a scheduling order deadline shouldn’t interfere with the presentation of the case on the merits.  In that the decision is now committed even more firmly to the court’s discretion, knowledge of the judge is imperative.

A recent e-discovery decision out of Minnesota federal district court (the Zurn Pex plumbing products litigation) reminded me of the high stakes involved in cases dependent upon electronic information.  The staggering cost of discovery of electronic information can alter the entire economic balance of a lawsuit. 

Plaintiffs request roughly 361 gigabytes of data. . . .  Zurn represents that by using the generally accepted standard of 75,000 pages per gigabyte, Plaintiffs’ request amounts to nearly 27 million pages of documents. . . .  If the K drive were not searched, the remaining data consists of 48 gigabytes.   Zurn also states that a search of the custodians’ emails and J drive files will require approximately seventeen weeks and cost $1,150,000, exclusive of vendor collection and processing costs, to review and process the data.

A couple other issues of note — the court mentions that counsel worked through discovery “amicably.”   It’s a sign of the declining level of professionalism in law practice when counsel who work amicably together are sufficiently anomolous to warrant comment. 

For clients, this decision provides something for you to consider.  Counsel who fight bitterly with opposing lawyers, while sometimes scratching an emotional itch on the part of the client, often succeed only in increasing the cost and length of litigation.  Professionalism and civility can make a distasteful event like a lawsuit a little less distasteful.  And as this decision proves, having counsel that are reasonable can, in the end, save millions in discovery and motion costs.