805.07.Subpoena.
Ch. 805: Trials · Last amended 2012 · Last verified July 15, 2026
Full Text of Section 805.07
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.