Any official court record containing electronically filed documents must meet the operational standards set by SCR 72.05
for electronic records.
The clerk of court shall make the public portions of the electronic record available through a public access terminal located in the clerk's office. The clerk of court shall charge for copies of pages from the electronic record under ss. 814.61 (10)
and 814.66 (1) (h)
Certified copies of an electronic record shall be obtainable from the clerk of court's office by traditional methods, as provided by s. 889.08
If a document is filed by traditional methods, the submitting party shall file a copy of that document and not the original paper document. The court may require the submitting party to produce the original paper document if validity of the signature or document is challenged.
Electronic placement of the clerk's filing stamp and case number on each copy of an initiating document constitutes authentication under the statutes and court rules. An authenticated copy may be printed from the consolidated court automation program case management system by the clerk of court or from the electronic filing system by the filing party.
If a document is required to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to administer the oath or to make the notarization, acknowledgment, or verification, together with all other information required to be included by other applicable law, is attached to or logically associated with the document. A physical or electronic image of a stamp, impression, or seal need not accompany the electronic signature. The electronic signature and notary seal may be applied to the document's transmittal page.
Notaries public who hold valid appointments under ch. 137
may register with the electronic filing system for authorization to notarize electronically filed documents. To register, notaries must be able to meet the technical requirements of the electronic filing system. Upon receipt of a properly executed notary agreement, the electronic filing system shall assign to the notary a confidential electronic signature and seal. The notary signature and seal shall be used only by the notary to whom it is assigned. Upon learning that the confidentiality of the signature and seal have been inadvertently or improperly disclosed, the notary shall immediately report that fact through the electronic filing system Web site.
Documents notarized by traditional methods may be filed through the electronic filing system if a handwritten signature and physical seal appear on the original document. The user shall submit a scanned copy of the notarized document to the electronic filing system, and the court shall maintain the scanned document as the official court record. The court may require the submitting party to produce the original paper document if validity of the notarization is challenged.
Other officers authorized by law to perform notarial acts may do so by application of their electronic signatures if those signatures are already provided through the electronic filing system.
The electronic signature and seal provided for notaries public by the electronic filing system satisfy the self-authentication provisions of s. 909.02
Users shall be provided with an electronic signature that can be executed by the user with the intent to sign a document. The electronic signature shall be treated as the user's personal original signature for all purposes under the statutes and court rules. Each document electronically signed shall bear that person's name, mailing address, telephone number, and state bar number if applicable. If a statute requires a signature at a particular location on a form, the user shall insert the user's printed name and an indication that the document has been electronically signed. The electronic signature may be applied to the document's transmittal page.
A summons and complaint, petition, or other initiating document that is electronically signed in compliance with this section bears a sufficient signature under s. 802.05
An electronic signature shall be used only by the user to whom it is assigned. Upon learning that the confidentiality of the electronic signature has been inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system.
Attorneys are responsible for electronically filed documents to the same extent as for paper filings. Attorneys using the electronic filing system are subject to sanctions under s. 802.05
and contempt procedures under ch. 785
, and are subject to discipline for any violation of a duty to the court under the supreme court rules.
Self-represented parties are responsible for electronically filed documents to the same extent as for paper filings. Self-represented parties using the electronic filing system are subject to sanctions under s. 802.05
and contempt procedures under ch. 785
Documents containing signatures of third parties, such as affidavits, may be filed through the electronic filing system if a handwritten signature appears on the original document. The user shall submit a scanned copy of the signed document to the electronic filing system, and the court shall maintain the scanned signature as the official court record. The court may require the submitting party to produce the original paper document if validity of the signature is challenged.
If a document bearing a signature is filed by traditional methods, the filing party shall file a copy of that document and not the original paper document, as provided by sub. (9)
If the signature of a court official is required on a document, an electronic signature may be used. The electronic signature shall be treated as the court official's personal original signature for all purposes under Wisconsin statutes and court rules. Where a nonelectronic signature would be located on a particular order, form, letter, or other document, the official's printed name shall be inserted.
The electronic signature of a court official shall be used only by the official to whom it is assigned and by such designees as the official may authorize. The court official is responsible for any use of his or her electronic signature by an authorized designee.
A court official may delegate the use of his or her electronic signature to an authorized designee pursuant to the security procedures of the consolidated court automation program case management system. Upon learning that the confidentiality of the electronic signature has been inadvertently or improperly disclosed, the court official shall immediately report that fact to the consolidated court automation program. Court officials shall safeguard the security of their electronic signatures and exercise care in delegating the electronic signature.
The confidentiality of an electronic record, or an electronic or paper copy thereof, is the same as for the equivalent paper record. The electronic filing system may permit access to confidential information only to the extent provided by law. No person in possession of a confidential electronic record, or an electronic or paper copy thereof, may release the information to any other person except as provided by law.
If a document is confidential, it shall be identified as confidential by the submitting party when it is filed. The electronic filing system may require users to enter certain information, such as social security numbers, in confidential fields. The clerk of court is not required to review documents to determine if confidential information is contained within them.
If a user seeks court approval to make a document confidential, the user may electronically file the document under temporary seal pending court approval of the user's motion to seal.
The electronic filing system shall place a visible mark on documents identified as confidential.
A user whose filing is made untimely as a result of a technical failure may seek appropriate relief from the court as follows:
If the failure is caused by the court electronic filing system, the court shall grant appropriate relief upon satisfactory proof of the cause.
If the failure is not caused by the court electronic filing system, the court may grant appropriate relief upon satisfactory proof of the cause. Parties are responsible for timely filing of electronic documents to the same extent as filing of paper documents, with similar consequences for missed deadlines.
This subsection shall be liberally applied to avoid prejudice to any person using the electronic filing system in good faith.
Sup. Ct. Order No. 06-08
, 2008 WI 36, 305 Wis. 2d xxv; Sup. Ct. Order No. 08-20
, 2008 WI 106, 307 Wis. 2d xv; 2009 a. 276
; Sup. Ct. Order No. 12-05
, 2012 WI 112, filed 11-1-12, eff. 1-1-13.
Comment, 2008: Sub. (4) is intended to be consistent with the rules for facsimile transmissions under ss. 801.15 and 801.16.
Sub. (6) does not apply the general rule that most documents are considered served when they are mailed. Although documents are considered filed when they are accepted by the clerk and posted to the electronic filing website, the parties are notified of the posting by a notice sent to an electronic mail account. Because electronic mail is not yet as reliable as the United States Post Office, this subsection requires the filing party to revert to traditional service if the electronic mail notice is returned as undeliverable.
Sub. (6) (f) provides that the clerk of court may allow an existing case to be converted to electronic filing upon the request of a party, but the clerk is not required to do so.
Sub. (7) provides that most routine fees be paid electronically, including filing, motion, and docketing fees, fines and forfeitures, court costs, and court-ordered attorney fees. Larger fees and deposits, such as condemnation awards, may be paid by other methods if ordered by the court or agreed to by the clerk of court. Attorneys should consult the Rules of Professional Conduct, SCR 20:1.15 (e)
, with respect to the restrictions on electronic transactions from trust accounts.
Sub. (9) requires parties filing documents by traditional methods, such as by hand delivery or by mail, to submit copies instead of original documents, to allow the clerk to eliminate the paper file. Discarding the paper copy is consistent with the rule governing facsimile copies, s. 801.16 (2) (e), which provides that the faxed copy is the official record, and the original, if received, should be discarded. The rule does not require the submitting party to retain original paper documents. If there is likely to be a challenge to the validity of a signature or exhibit, parties may be well-advised to keep the original paper document. For a high-volume law practice, the economics may not support keeping paper originals when the remainder of the file is electronic, and parties may prefer to assume the risk of failure of proof.
801.17 AnnotationSCR 72.03
(3) provides that even when the clerk of court has electronically stored a court file, the clerk may not destroy the paper file until the time specified under SCR 72.03
(3) has expired.
Sub. (10) provides that electronic authentication satisfies the authentication requirements of Wisconsin Statutes, including ss. 801.02, 801.09 (4), and 909.02 (8). Statutory authentication requirements must be met upon filing of the summons and complaint in order to confer jurisdiction on the court. American Family Mut. Ins. Co. v. Royal Ins. Co.
, 167 Wis. 2d 524
, 534 (1992). The purpose of authentication is to give assurance by the clerk that copies served are true copies of filed documents and to provide the case number for future reference. J.M.S. v. Benson
, 91 Wis. 2d 526
, 532 (Ct. App. 1979), rev'd on other grounds
, 98 Wis. 2d 406
(1980). The security and verifiability provided by the electronic filing system satisfy the purposes of the authentication requirements under statutes and case law.
Sub. (11) is intended to satisfy the standards for electronic notarization set by ss. 137.19 (the Uniform Electronic Transactions Act) and 706.25 (2) (c) (the Uniform Real Property Electronic Recording Act). The rule should be interpreted flexibly to the extent that technical standards for electronic notarization evolve.
The function of the notary is to witness the signature and to administer an oath when one is required. See
ss. 706.07; 887.01; 887.03;
Kellner v. Christian
, 197 Wis. 2d 183
, 191 (1995). Notarial acts as defined by s. 706.07 (1) (c) include the ability to administer oaths, take acknowledgments and verifications, and authenticate or certify documents. The intent of this section is to allow notaries to perform traditional notarial functions using alternate technology, and to make them responsible for electronic notarization to the same extent they are responsible for traditional notarization. These functions may be performed not only by notaries public but also by a judge, clerk or deputy clerk of a court of record, or a court commissioner under s. 706.07 (3). This section provides that the electronic signature of one of these officials may be applied to a certificate of notarial acts certifying that the function was performed.
This section does not require the submitting party to retain original paper documents or exhibits bearing the notary's seal and signature. If there is likely to be a challenge to the validity of the notarization, parties may be well-advised to keep the paper copies. The court may require a party to produce the original paper document if validity of the notarization is challenged.
Sub. (12) adopts the definition of electronic signature appearing in ss. 137.11 (8) and 706.25 (1) (d). Consistent with s. 137.15 (4), it provides that if a law requires a signature, an electronic signature applied through the electronic filing system satisfies that requirement.
The Wisconsin legislature has affirmed the trend toward acceptance of electronic signatures in government records and commercial transactions. At the request of the Wisconsin Director of State Courts, 2003 Wisconsin Act 294
(the Uniform Electronic Transactions Act) exempted court filings from coverage in order to allow the court to develop its own technical and legal standards. This section now allows the electronic signing and filing of those documents described in s. 137.12 (2m), as well as all other documents filed with the court.
Compliance with this section satisfies the signature requirements of ss. 801.09 (3), 802.05 (1), and 805.07 (4) (a), as well as all other statutes and rules relating to court documents. Appellate decisions have reasoned that counsel's personal signature is necessary to confer jurisdiction on the court, to assure that the pleadings are well-grounded in law and fact, and to prevent the unauthorized practice of law. See Schaefer v. Riegelman
, 2002 WI 18
, 250 Wis. 2d 494
Novak v. Phillips
, 2001 WI App 156
, 246 Wis. 2d 673
, 680-81; Jadair, Inc. v. U.S. Fire Insurance Co.
, 209 Wis. 2d 187
, 211-12 (1997). For users of the electronic filing system, the identification procedures, security, and personal accountability provided by these rules are deemed to satisfy the purposes of a handwritten signature and all other signature requirements.
The intent of this section is to make attorneys and self-represented parties responsible for electronic filings to the same extent they are responsible for paper filings. For that reason, the rule does not include a provision allowing attorneys to reveal their electronic signatures to office staff so the staff can apply the signature; the attorney must review each electronically filed document and apply his or her electronic signature personally. The courts and the Office of Lawyer Regulation have a range of sanctions and disciplinary measures that will serve as an adequate deterrent to any misuse of electronic signatures.
This section does not require the submitting party to retain original paper documents bearing handwritten signatures. If there is likely to be a challenge to the validity of the signature, the submitting party may be well-advised to keep the original document.
Sub. (13) provides electronic signatures for those court officials whose duties require them to sign documents in circuit court case files, including circuit court judges, clerks of circuit court, registers in probate, juvenile clerks, and circuit court commissioners appointed under s. 757.68 and SCR 75.02
(1). Electronic signatures may also be provided for the chief justice and the director of state courts to use for assignment of judges pursuant to SCR 70.23
and 70.24. A district court administrator may be the designee of a chief judge for purposes of judicial assignment.
Under this section, court officials may allow an authorized staff member to apply the official's electronic signature at the official's specific direction. Appellate decisions have reasoned that counsel's personal signature is necessary to confer jurisdiction on the court, to assure that the pleadings are well-grounded in law and fact, and to prevent the unauthorized practice of law. No case has examined the signature requirements for court officials, and the reasoning behind previous decisions seems inapplicable. Each court official remains responsible for reviewing, revising and approving the document before the electronic signature is applied, and should be held accountable as if the document were signed personally. The electronic signature shall be applied in accordance with the provisions of SCR 70.42
Sub. (14) provides that the electronic filing system shall protect those case types made confidential by statutes. Within an open case type, certain documents may be sealed by statute, such as presentence reports, financial disclosure forms, psychological evaluations, and certain health care records. This section places the burden on the submitting party to identify those documents as confidential. Confidential information may also be contained within an otherwise open document, such as a trade secret; the burden is on the filing party to move to seal those documents. As an added protection, the electronic filing system will mark confidential documents in a way that will be visible on the computer screen and when the documents are printed.
Sub. (15) addresses technical failures of the court's electronic filing system or the user's electronic systems. Technical failures may include an error in the transmission of the document to the electronic filing system or to a served party, a failure to process the document upon receipt by the electronic filing system, or erroneous exclusion of a party from the service list by the electronic filing system.
Correction of technical failures should generally be allowed in order to encourage the use of the electronic filing system. Correction should be automatic where the user can demonstrate that the problem was caused by the court's electronic filing system. The electronic filing system will generate a report if needed for a user to document the problem. Where the failure is caused by the user's electronic systems (such as electronic mail, word processing, or a database program) or by external forces (such as problems with the user's Internet service provider or power outages), the court has the discretion to correct the problem. The court should consider what consequences would follow a missed deadline for traditional filings, caused by forces such as malfunctioning equipment or traffic delays. The committee considered limiting the court's discretion to correct technical errors in the filing of initiating documents, where untimely filing is a jurisdictional issue, but decided against creating a bright-line rule because of occasional exceptions such as St. John's Home of Milwaukee v. Continental Casualty Co.
, 147 Wis. 2d 764
, 788-89 (Ct. App. 1988) and Granado v. Sentry Ins.
, 228 Wis. 2d 794
, 799 (Ct. App. 1999).
Paperless Courts: E-Filing in Wisconsin Circuit Courts. Bousquet & Vandercook. Wis. Law. July 2008.
Protected information in circuit court records. 801.19(1)(a)
"Protected information" means any of the following contained in a circuit court record:
"Protected information form" means a form provided by the circuit court under SCR 70.153
for the purpose of submitting protected information in the manner described by this section.
"Redact" means to obscure individual items of information within an otherwise publicly accessible document.
"Seal" means to order that a portion of a document or an entire document shall not be accessible to the public.
(2) Required omission or redaction of protected information. 801.19(2)(a)(a)
To retain privacy and prevent misuse of personal information, no party shall, on or after July 1, 2016, submit protected information in any document filed in any action or proceeding in circuit court except in the manner provided by this section.
Except as provided in par. (c)
, the parties to the action are solely responsible for ensuring that protected information does not appear in any document filed with the court. The court will not review each document filed by a party for compliance with this section. Protected information that is not properly submitted is accessible to the public to the same extent as the rest of the court record.
A party shall omit or redact protected information from documents filed with the court unless the protected information is required by law or is necessary to the action. When protected information is provided to the court, a party shall omit or redact it from any documents filed and shall provide it to the court subject to all of the following:
When submitting an original document such as a pleading, a party shall omit the protected information from the document. If the protected information is required by law or is necessary to the action, the party shall submit it separately on the protected information form.
When submitting a previously existing document such as an exhibit, a party shall redact all protected information from a copy of the document. The party shall submit the redacted copy for the public case file. If the protected information is required by law or is necessary to the action, the party shall submit it separately on the protected information form. The court may require the submitting party to produce the original unredacted document if necessary.
If redaction of a document is impracticable, the document may be attached to the protected information form without redaction. Any disagreement as to proper redaction of protected information shall be decided by the court.
The protected information form and attachments are not accessible to the public, even if admitted as a trial or hearing exhibit, unless the court permits access. The clerk of circuit court or register in probate may certify the record as a true copy of an original record on file with the court by stating that information has been redacted or sealed in accordance with court rules or as ordered by the circuit court.
In actions affecting the family, protected information may be submitted together with the information protected by ss. 767.215
A party waives the protection of this section as to the party's own protected information by filing it without the protected information form.
If a party fails to comply with the requirements of this section, the court may, upon motion or its own initiative, seal the improperly filed documents and order new redacted documents to be prepared.
If a party fails to comply with the requirements of this section in regard to another person's protected information, the court may impose reasonable expenses, including attorney fees and costs, or may sanction the conduct as contempt.
The court shall not include protected information in publicly accessible documents generated by the court, including judgments, orders, decisions, and notices. If the protected information is required by law or is necessary to the action, it shall be maintained and disseminated in a confidential manner. Notwithstanding this section, protected information may be referred to in open court to the extent deemed necessary by the court and may be taken down by the court reporter as part of the record.
Protected information shall be accessible to the parties, their attorneys, guardians ad litem appointed to the case, judicial officers, and court staff as assigned, unless otherwise ordered by the court. Access to other persons and agencies shall be allowed as provided by law. The parties may stipulate in writing to allow access to protected information to any person.
Any person may file a motion for access to protected information for good cause. Written notice of the motion to all parties shall be required.
If the person seeking access cannot locate a party to provide the notice required under this section, an affidavit may be filed with the court setting forth reasonable efforts to locate the party and requesting waiver of the notice requirement. The court may waive the notice requirement if the court finds that further efforts to locate the party are not likely to be successful.
On appeal, if the record assembled under s. 809.15 (1) (c)
includes the redacted version of any document, it shall also contain the unredacted version if submitted under sub. (2) (c) 2.
The unredacted version shall be marked as confidential. Confidential paper documents shall be submitted in a sealed envelope.
(3) Redaction of previously filed documents. 801.19(3)(a)(a)
This section does not require any party, attorney, clerk, or judicial officer to redact protected information that was filed prior to July 1, 2016.
For documents filed prior to July 1, 2016, a person affected may by motion request that protected information in a circuit court file be redacted as provided in this section, using a form approved by the court for this purpose. The moving party shall identify every place in the court record where the information to be protected is located. The protected information shall be submitted on or attached to a protected information form as provided in sub. (2)
If the motion is granted, the clerk of circuit court or register in probate shall redact the protected information from the record at the places identified by the party. The clerk or register is not responsible for making any other redaction. The moving party shall be responsible for verifying that the redaction is complete as requested. Replacement documents shall not be submitted to the court.