804.12.Failure to make discovery; sanctions.

Ch. 804: Depositions and Discovery · Last amended 2017 · Last verified July 15, 2026

In one sentenceSection 804.12 sets out the sanctions available when a party or witness resists discovery, from a motion to compel with fee-shifting through contempt, dismissal, or default judgment, and shields a party from sanctions for electronically stored information lost through the routine, good-faith operation of its own computer systems.

Full Text of Section 804.12

Text sizeJump to: (1) (2) (3) (4) (4m) (5)

(1) MOTION FOR ORDER COMPELLING DISCOVERY. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(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).

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

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.

(2) FAILURE TO COMPLY WITH ORDER.

(a) 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, including an order made under sub. (1) or s. 804.10, 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.

(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.

(3) 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.

(4) FAILURE OF PARTY TO ATTEND AT OWN DEPOSITION OR SERVE ANSWERS TO INTERROGATORIES OR RESPOND TO REQUEST FOR INSPECTION OR SUPPLEMENT RESPONSES. 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 (a) to appear before the officer who is to take the party’s deposition, after being served with a proper notice, or (b) to serve answers or objections to interrogatories submitted under s. 804.08, after proper service of the interrogatories, or (c) to serve a written response to a request for inspection submitted under s. 804.09, after proper service of the request, or (d) seasonably to supplement or amend a response when obligated to do so under s. 804.01 (5), the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others, it may take any action authorized under sub. (2) (a) 1., 2. and 3. In lieu of any order or in addition thereto, the court shall require the party failing to act 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. The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by s. 804.01 (3).

(4m) FAILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

(5) TELEPHONE HEARINGS. Motions under this section may be heard as prescribed in s. 807.13.

End

Official Notes

Cross-reference: See also s. 885.11 (5) regarding failure to appear at deposition.

Judicial Council Note, 1988: Sub. (5) [created] allows discovery motions to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

Judicial Council Note, 2010: Section 804.12 (4m) is taken from F.R.C.P. 37(e).

Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 804.12 (4m): The “routine operation” of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems.

The rule applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of the routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement . . . means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Among the factors that bear on a party’s good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.

The protection provided by this rule applies only to sanctions “under these rules.” It does not affect other sources of authority to impose sanctions or rules of professional responsibility.

This rule restricts the imposition of “sanctions.” It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information. [Re Order effective Jan. 1, 2011]

Plain-English Summary

Discovery only works if there is a way to enforce it, and Section 804.12 supplies the enforcement mechanism. When a deponent won’t answer, a party won’t answer interrogatories, or a party won’t produce documents or allow inspection, the discovering party can move for an order compelling a response. If the motion is granted, the court generally makes the resisting side pay the reasonable expenses, including attorney fees, of bringing the motion, unless the opposition was substantially justified; if the motion is denied, the same fee-shifting can run the other way against the party who moved.

Ignoring a court order that compels discovery carries heavier consequences. Under Section 804.12(2), a court can deem the disputed facts established against the disobedient party, bar that party from supporting or opposing designated claims or defenses, strike pleadings, stay the case, dismiss it, enter a default judgment, or treat the disobedience as contempt, except that contempt is not available for disobeying an order to submit to a physical, mental, or vocational examination. The same categories of sanctions are available under Section 804.12(4) when a party or its representative fails to show up for its own deposition, fails to answer interrogatories, or fails to respond to a document request, and a party cannot excuse that failure by arguing the discovery was objectionable unless it had already moved for a protective order.

Section 804.12(3) addresses a different scenario: a party who denied a request for admission that the requesting party later proves true. The requesting party can recover the reasonable expenses, including attorney fees, of proving what was denied, unless the request was objectionable, of no substantial importance, or the party had reasonable ground to believe it might prevail, or there was some other good reason for the denial. And Section 804.12(4m) protects a party from sanctions for losing electronically stored information through the routine, good-faith operation of its own information system, absent exceptional circumstances.

Frequently Asked Questions

What can I do if the other side will not answer my interrogatories or produce documents?

Move for an order compelling discovery under Section 804.12(1). An evasive or incomplete answer is treated the same as a refusal to answer.

What happens if a party disobeys a court order compelling discovery?

Under Section 804.12(2), the court can deem the relevant facts established, bar the disobedient party from supporting or opposing designated claims or defenses, strike pleadings, stay the case, dismiss it, enter a default judgment, or treat the failure as contempt, except that contempt does not apply to an order to submit to a physical, mental, or vocational examination.

Who pays the costs of a motion to compel discovery?

Generally the losing side. If the motion is granted, the resisting party or attorney typically pays the moving party’s reasonable expenses including attorney fees, unless the opposition was substantially justified; if the motion is denied, the moving party can be made to pay the other side’s expenses instead, subject to the same kind of justification exception.

Can I recover costs if the other side refused to admit something I later proved true?

Yes, under Section 804.12(3), unless the request was held objectionable, the admission sought was of no substantial importance, the party had reasonable ground to believe it might prevail, or there was other good reason for the refusal.

Can I be sanctioned for losing electronic data through normal computer operations?

Not absent exceptional circumstances. Section 804.12(4m) says a court may not sanction a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Amendment History

History: Sup. Ct. Order, 67 Wis. 2d 585, 684 (1975); 1975 c. 94 s. 3; 1975 c. 200, 218; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1993 a. 424, 490; Sup. Ct. Order No. 09-01, 2010 WI 67, filed 7-6-10, eff. 1-1-11; 2017 a. 235.

Source & verification. Section text and official notes are reproduced verbatim from the Wisconsin Statutes, published by the Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026. · Official source

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