(1) ISSUANCE AND SERVICE. Subpoenas shall be issued and served in accordance with ch. 885. A subpoena may also be issued by any attorney of record in a civil action or special proceeding to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding.
805.07.Subpoena.
Ch. 805: Trials · Last amended 2012 · Last verified July 15, 2026
In one sentenceSection 805.07 governs how a Wisconsin subpoena is issued and served, what it can compel including electronically stored information, the notice required before serving a third-party discovery subpoena, the clawback procedure for inadvertently produced privileged material, and when a court will quash or modify it.
Full Text of Section 805.07
(2) SUBPOENA REQUIRING THE PRODUCTION OF MATERIAL. (a) A subpoena may command the person to whom it is directed to produce the books, papers, documents, electronically stored information, or tangible things designated therein. A subpoena may specify the form or forms in which electronically stored information is to be produced. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials. (b) Notice of a 3rd-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a 3rd-party subpoena requests the production of books, papers, documents, electronically stored information, or tangible things that are within the scope of discovery under s. 804.01 (2) (a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree. (c) If a subpoena does not specify a form for producing electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The person responding need not produce the same electronically stored information in more than one form. (d) If information inadvertently produced in response to a subpoena is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
(3) PROTECTIVE ORDERS. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things designated therein.
(4) FORM. (a) The subpoena shall be in the following form: SUBPOENA STATE OF WISCONSIN .... County THE STATE OF WISCONSIN, TO ....: Pursuant to section 805.07 of the Wisconsin Statutes, you are hereby commanded to appear in person before [.... designating the court, officer, or person and place of appearance], on [.... date] at .... o’clock ...M., to give evidence in an action between ...., plaintiff, and ...., defendant. [Insert clause requiring the production of material, if appropriate]. Failure to appear may result in punishment for contempt which may include monetary penalties, imprisonment and other sanctions. Issued this .... day of ...., .... (year) [Handwritten Signature] Attorney for [identify party] (or other official title) [Address] [Telephone Number] (b) For a subpoena requiring the production of material, the following shall be inserted in the foregoing form: You are further commanded to bring with you the following: [describing as accurately as possible the books, papers, documents or other tangible things sought].
(5) SUBSTITUTED SERVICE. A subpoena may be served in the manner provided in s. 885.03 except that substituted personal service may be made only as provided in s. 801.11 (1) (b) and except that officers, directors, and managing agents of public or private corporations or limited liability companies subpoenaed in their official capacity may be served as provided in s. 801.11 (5) (a).
Official Notes
Judicial Council Note, 1988: Sub. (6) [created] allows motions for protective orders to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Judicial Council Note, 1995: Sub. (2) (b) requires notice of third-party discovery subpoenas in order to preserve the right of other parties to move to quash them.
Judicial Council Note, 2010: The amendments to s. 805.07 (2) are modeled on F.R.C.P. 45(a) and (d). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 805.07 (2): Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information. Rule 45(a)(1)(B) is also amended, as is Rule 34(a), to provide that a subpoena is available to permit testing and sampling as well as inspection and copying. As in Rule 34, this change recognizes that on occasion the opportunity to perform testing or sampling may be important, both for documents and for electronically stored information. [Re Order effective Jan. 1, 2011]
Judicial Council Note, 2012: Sup. Ct. Order No. 12-03 states that “the Judicial Council Notes to Wis. Stat. ss. 804.01 (2) (c), 804.01 (7), 805.07 (2) (d), and 905.03 (5) are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.” Sub. (2) (d) is modeled on Fed. R. Civ. P. 45(d)(2)(B), which was amended in 2007 to adopt the wording of Rule 26(b)(5)(B), the so-called “clawback” provision of the federal rules.
Plain-English Summary
Subpoenas in Wisconsin are issued and served under chapter 885, but Section 805.07(1) also lets any attorney of record in a civil action issue one directly to compel attendance at a deposition, hearing, or trial. A subpoena can command production of books, papers, documents, electronically stored information, or tangible things, and can specify the form electronically stored information should take; complying with that kind of command means permitting inspection, copying, testing, or sampling of the material.
When a subpoena goes to a non-party for discovery purposes, Section 805.07(2)(b) requires notice to all parties at least 10 days before the scheduled deposition, so they keep their chance to object, and materials within the scope of discovery under Section 804.01(2)(a) cannot be handed over before the date in the subpoena unless everyone agrees otherwise. If privileged material is produced by mistake, Section 805.07(2)(d) lets the producing party notify whoever received it; that party then has to promptly return, sequester, or destroy the material and any copies, stop using or disclosing it until the claim is resolved, and can present the dispute to the court under seal.
A person who thinks a subpoena is unreasonable and oppressive can move, promptly and no later than the compliance date, to have it quashed or modified, or can ask the court to condition denial of that motion on the requesting party advancing the reasonable cost of production. Section 805.07(4) sets out the required form of the subpoena itself, and Section 805.07(5) governs substituted service, while motions under this section can be heard by telephone as prescribed in Section 807.13.
Frequently Asked Questions
Who can issue a subpoena in a Wisconsin civil case?
Subpoenas are issued and served in accordance with chapter 885, and Section 805.07(1) also lets any attorney of record in a civil action or special proceeding issue one to compel attendance at a deposition, hearing, or trial.
Do I have to tell the other parties before serving a subpoena on a non-party for documents?
Yes. Section 805.07(2)(b) requires notice of a third-party discovery subpoena to be provided to all parties at least 10 days before the scheduled deposition, and the materials cannot be produced before the date and time in the subpoena unless the parties agree otherwise.
What can I do if I think a subpoena served on me is unreasonable?
Move promptly, at or before the time set for compliance, to have the court quash or modify the subpoena if it is unreasonable and oppressive, or to condition denial of the motion on the requesting party advancing the reasonable cost of producing the material.
What happens if I accidentally hand over privileged documents in response to a subpoena?
Under Section 805.07(2)(d), you can notify the party that received them of the claim and its basis; that party must then promptly return, sequester, or destroy the material, stop using or disclosing it until the claim is resolved, and take reasonable steps to retrieve any copies already disclosed.
Can a subpoena specify the electronic format I have to produce records in?
Yes. Section 805.07(2)(a) lets a subpoena specify the form or forms for producing electronically stored information.
Amendment History
History: Sup. Ct. Order, 67 Wis. 2d 585, 697 (1975); 1979 c. 110; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 155; 1993 a. 112; Sup. Ct. Order No. 95-09, 195 Wis. 2d xiii (1996); 1997 a. 250; 1999 a. 85; 2005 a. 253; Sup. Ct. Order No. 09-01, 2010 WI 67, filed 7-6-10, eff. 1-1-11; Sup. Ct. Order No. 12-03, 2012 WI 114, 344 Wis. 2d xxi.
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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