804.02.Perpetuation of testimony by deposition.

Before an action is filed, someone who expects to be a party to it may file a verified petition showing their expected role and interest in the future action, the facts the proposed testimony would establish and why preserving them matters, the expected adverse parties and their known addresses, and the deponents along with the substance of their expected testimony, asking the court for authority to take those depositions. Expected adverse parties get at least 20 days’ notice, served within or outside Wisconsin the way a summons would be served, with alternatives like court-ordered publication and an appointed attorney to represent and cross-examine on behalf of anyone who cannot be served that way; if an expected adverse party is a minor or an alleged or adjudicated incompetent person, the procedure in section 803.01(3) applies.

If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court designates who may be deposed and the scope and format of the examination, and the depositions proceed under the ordinary discovery-chapter rules, including protective and discovery-motion orders under sections 804.09 and 804.10. A deposition taken this way, or one that would otherwise be admissible, can later be used in an actual Wisconsin action on the same subject matter under section 804.07.

Separately, while an appeal is pending, or before the time to appeal has expired, the court that rendered the judgment may allow depositions to preserve witness testimony for use in further proceedings. The party seeking this moves the court on the same notice and service as if the action were still pending, showing the deponents’ names and addresses, the substance of their expected testimony, and the reasons for preserving it; if the court finds that preserving the testimony is proper to avoid a failure or delay of justice, it may allow the depositions under the same procedures, and later uses, that apply to depositions taken in a pending action.