Chapter 801

801.18 Note Sub. (11) (e) makes a change to the law governing small claims complaints by eliminating the need for an electronically filed small claims complaint to be verified in front of a notary. Instead, it may be verified by applying the electronic signature of the plaintiff or the plaintiff’s attorney to a written oath or affidavit attesting to the facts of the complaint. This change has been made to encourage the use of electronic filing by self-represented parties. The identification procedures and personal accountability provided by this section satisfy the purposes of traditional oath and notarization procedures.

801.18 Note Sub. (12) (a) and (d) represent a change to the 2008 electronic filing statute and to current law and practice. Since 2008, electronic filing in Wisconsin has used two processes to identify the lawyer or self-represented party who signs a document: a username and password combination, which allows users into the system, and a personal identification number (PIN), which acts as the signature and is applied personally by the attorney or self-represented party. Application of a separate PIN signature is an extra step compared to other states and the federal courts, where the username and password are sufficient.

801.18 Note The 2008 eFiling committee chose to impose this extra step because of Wisconsin case law regarding improperly signed pleadings. Appellate decisions have reasoned that the statutes require that attorneys personally sign a summons and complaint to confer jurisdiction on the court. The personal signature requirement exists to assure that the pleadings are well-grounded in law and fact, as an “essential protection” against an invalid claim, and to prevent the unauthorized practice of law. See Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 512-13, 639 N.W.2d 715; Jadair, Inc. v. U.S. Fire Insurance Co., 209 Wis. 2d 187, 211-12, 785 N.W.2d 698 (1997).

801.18 Note The new statute supersedes this line of cases and provides that any document submitted through the electronic filing system is considered signed if the document represents that it has been electronically signed by the attorney or self-represented party. The statutes and rules in other electronic filing jurisdictions provide that attorneys and self-represented parties are responsible for everything submitted to the electronic filing system.

801.18 Note Compliance with this section is intended to satisfy the signature requirements of ss. 801.09 (3) and 802.05 (1), as well as all other statutes and rules relating to court documents. For users of the electronic filing system, the identification procedures, security, and personal accountability provided by this section are deemed to satisfy the purposes of a handwritten signature and all other signature requirements. 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 abuse of electronic signatures.

801.18 Note 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).

801.18 Note Under this section, court officials may allow an authorized staff member to apply the official’s electronic signature at the official’s specific direction. Each court official remains responsible for 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.

801.18 Note Sub. (14) provides that the electronic filing system shall protect those case types and individual documents made confidential by law or sealed by court order. The electronic filing system will provide user security measures to allow access only to authorized persons.

801.18 Note Section 801.19 requires that all persons filing documents with the circuit court must review and redact certain protected information about individuals, such as personal identifiers and financial account numbers. Sections 801.20 to 801.21 require the filing party to identify any materials deemed confidential by law and to submit a motion to seal if a court order is required. These statutes are intended to work in concert with the electronic filing statute so that all electronic documents are free of protected information. The electronic filing system will mark confidential documents in a way that will be visible electronically and when the documents are printed.

801.18 Note Sub. (15) provides that transcripts of court proceedings shall be filed and incorporated into the circuit court record electronically. The director’s office will provide access for court reporters to electronically file transcripts and serve them on the parties who are registered users. The director will provide access for court reporters to view the electronic court record while preparing the transcript, including confidential information.

801.18 Note This section is not intended to change the arrangements for payment made between court reporters and parties. Users will receive service of the transcript via the electronic filing system and will be able to view it electronically when the court reporter notifies the system that payment has been arranged. Upon request, the court reporter will provide a single paper copy to each user who is entitled to view the transcript; otherwise paper copies for users are not required. Paper parties will continue to receive notices and transcripts on paper. Voluntary arrangements may be made to provide the transcript in other formats.

801.18 Note This section is not intended to change any requirements applicable to proceedings before the supreme court and court of appeals.

801.18 Note Sub. (16) addresses technical failures of the court’s electronic filing system and the user’s electronic systems. Court technical failures may include a failure to process the document upon receipt or erroneous exclusion of a user from the service list by the electronic filing system. User technical failures may include problems with the user’s internet service provider, payment, office equipment or software, or loss of electrical power.

801.18 Note This section provides guidance for courts dealing with the rare, but probably inevitable, circumstance of the electronic filing system not being available or not functioning as intended. Where the user can demonstrate that the problem was caused by the court’s electronic filing system, the circuit court may make a finding of fact that the document is deemed filed or served on the date and time that filing was attempted. The electronic filing system will generate a report for the user to document the problem.

801.18 Note Where the failure is caused by the user’s own electronic systems or by external forces, the court should consider what consequences would follow a missed deadline for traditional filings caused by similar forces. Relief may be provided to the extent provided by s. 801.15 and other applicable statutes, court rules, and case law. Where the technical failure was not caused by the court electronic filing system, this section does not provide for relief from jurisdictional deadlines.

801.18 Note Regardless of the cause, the user shall submit a motion for relief on the next business day, along with the document to be filed and any filing fee.

801.18 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

801.18 Note Comments, 2021

801.18 Note The definitions of sub. (1) now incorporate language consistent with the adoption of appellate eFiling and use current electronic filing terminology.

801.18 Note Sub. (2) (k) is also included in the appellate eFiling rule, s. 809.801 (2) (k), to support consistent interpretation of the two rules.

801.18 Note Sub. (3) (a) mandates that three types of filers participate in the electronic filing system. An exception for attorneys representing themselves was previously included in this rule at the request of a single attorney who theorized that electronic filing might be difficult for an attorney not in private practice. Experience has shown that electronic filing is straightforward to use, with minimal technical impediments and expense, so this exception is deleted.

801.18 Note Sub. (4) (f) adds a provision codifying Douglas v. Dewey, 147 Wis. 2d 328, 338, 433 N.W.2d 243 (1989) and Rome v. Betz, 120 Wis.2d 528, 355 N.W.2d 844 (Ct. App. 1984), holding that payment of the appellate filing fee and circuit court transmittal fee are not prerequisites to filing a notice of appeal.

801.18 Note Sub. (12) (a) tightens the definition of signature used by the current circuit court rule to provide a consistent signature format. Traditional handwritten signatures may also be used. Either form of signature provides the level of accountability to client and court called for by these rules.

801.18 Annotation Under sub. (4) (a) and (c) and sub. (4) (e) [now sub. (4) (am)], the date of submission by the litigant to the e-filing system and not the date of acceptance by the clerk is the presumed “filing” date. There are caveats to this presumption. First, the file must later be accepted by the clerk, but there is no deadline for the clerk to accept the file. Further, there are expectations built into this presumption that the “filing” date stamp on the document is the submission date no matter when the clerk accepts the document and that a litigant will receive a confirmation as a proof of filing. Nevertheless, it is still true under e-filing that the date stamped on the document does not speak conclusively to the date of filing. State v. Aderemi, 2023 WI App 8, 406 Wis. 2d 132, 986 N.W.2d 306, 21-1445.

801.18 Annotation Paperless Courts: E-Filing in Wisconsin Circuit Courts. Bousquet & Vandercook. Wis. Law. July 2008.

801.18 Annotation Are You Ready? Mandatory E-filing in Effect July 1. Bousquet & Vandercook. Wis. Law. June 2016.

801.19 801.19 Protected information in circuit court records.

801.19(1) (1) Definitions. In this section:

801.19(1)(a) (a) “Protected information” means any of the following contained in a circuit court record:

801.19(1)(a)1. 1. A social security number.

801.19(1)(a)2. 2. An employer or taxpayer identification number.

801.19(1)(a)3. 3. A financial account number.

801.19(1)(a)4. 4. A driver license number.

801.19(1)(a)5. 5. A passport number.

801.19(1)(b) (b) “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.

801.19(1)(c) (c) “Redact” means to obscure individual items of information within an otherwise publicly accessible document.

801.19(1)(d) (d) “Seal” means to order that a portion of a document or an entire document shall not be accessible to the public.

801.19(2) (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.

801.19(2)(b) (b) 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.

801.19(2)(c) (c) 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:

801.19(2)(c)1. 1. 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.

801.19(2)(c)2. 2. 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.

801.19(2)(c)3. 3. 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.

801.19(2)(d) (d) 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.

801.19(2)(e) (e) In actions affecting the family, protected information may be submitted together with the information protected by ss. 767.215 and 767.127.

801.19(2)(f) (f)

801.19(2)(f)1. 1. A party waives the protection of this section as to the party’s own protected information by filing it without the protected information form.

801.19(2)(f)2. 2. 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.

801.19(2)(f)3. 3. 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.

801.19(2)(g) (g) 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.

801.19(2)(h) (h)

801.19(2)(h)1. 1. 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.

801.19(2)(h)2. 2. 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.

801.19(2)(h)3. 3. 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.

801.19(2)(i) (i) 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.

801.19(3) (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.

801.19(3)(b) (b) 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).

801.19(3)(c) (c) 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.

801.19(3)(d) (d) 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.

801.19(3)(e) (e) The court may, on its own initiative, order redaction of protected information.

801.19(3)(f) (f) The clerk of circuit court or register in probate may redact a person’s social security number and passport number upon the written request of that person. All other requests for redaction of information already filed must be determined by the court.

801.19(4) (4) Redaction of transcripts.

801.19(4)(a) (a) Within 30 days of the time a transcript is filed with the circuit court, a person affected may file a motion with the circuit court to redact protected information from the transcript. The moving party shall identify by page and line every place in the transcript where the protected information is located. The protected information shall be submitted on or attached to a protected information form as provided in sub. (2). The unredacted transcript shall be publicly available while the motion and redaction are pending unless otherwise provided by law or court order. The court may order redaction after the 30-day period for good cause shown.

801.19(4)(b) (b) Upon court order, the court reporter shall, without charge, redact the protected information from the transcript in accordance with the court order and with directives established by the director of state courts office. The court reporter shall file the complete redacted version of the transcript with the circuit court and shall send a notice of transcript redaction to the parties within 20 days of receiving the court order. The court reporter is not required to provide a paper copy of the redacted version of the transcript to registered users of the electronic filing system. The court reporter shall provide a redacted copy of the transcript, without charge, upon the request of a party not registered to use the electronic filing system. If the page numbers of the transcript do not change after redaction, the court reporter may choose to provide only the replacement pages.

801.19(4)(c) (c) The redacted version of the transcript shall be accessible to the public to the same extent as the rest of the court record. The original unredacted transcript shall not be accessible.

801.19(4)(d) (d) The court reporter shall certify the transcript under SCR 71.04 by stating that the redacted version is a verbatim transcript of the proceedings from which protected information has been redacted, as provided in this rule and ordered by the circuit court. The protected information form and the unredacted transcript may be included with the record on appeal if the protected information is necessary to the appeal or otherwise required by law. The protected information and unredacted transcript shall be marked as confidential; paper documents shall be submitted in a sealed envelope.

801.19(4)(e) (e) Except as provided in this section, a court reporter is not required to redact protected information from any transcript of a circuit court proceeding.

801.19 History History: Sup. Ct. Order No. 14-04, 2015 WI 89, 364 Wis. 2d xv.

801.19 Note NOTE: Sup. Ct. Order No. 14-04 states: “Comments to Wis. Stat. ss. 801.19, 801.20, and 801.21 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the statute.”

801.19 Note Comment, 2015: This section protects five specific items of personally identifiable information that sometimes appear in court filings. When submitting an original document such as a pleading, a party will omit these items from the document. If the protected information is necessary to the action or required by law to be submitted to the court, a party will submit it on a protected information form provided by the court. When submitting a previously existing document like an exhibit, a party will provide a redacted copy for the public file. If the protected information is necessary to the action, the party will submit it on the protected information form or by attaching an unredacted copy to the form. If the protected information is unnecessary to the action, the party may simply redact it without submitting the protected information to the court.

801.20 801.20 When documents may be filed as confidential.

801.20(1) (1) The director of state courts shall maintain a list of commonly-filed documents made confidential by statutes, court rules and case law, and shall make this list publicly available. Documents on the list may be submitted by a party without a motion or court order and will be automatically treated by the court as confidential.

801.20(2) (2) A filing party is responsible for properly identifying a document as confidential at the time it is filed. The court is not required to review documents to determine if the documents are confidential in nature.

801.20 History History: Sup. Ct. Order No. 14-04, 2015 WI 89, 364 Wis. 2d xv.

801.20 Note NOTE: Sup. Ct. Order No. 14-04 states: “Comments to Wis. Stat. ss. 801.19, 801.20, and 801.21 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the statute.”

801.20 Note Comment, 2015: Confidentiality of court documents is often an area of confusion for the public, lawyers, and court-related professionals. This problem can be addressed by publishing a list of commonly-filed documents that the court will automatically treat as confidential without a motion because they are protected by statutes, court rules, or case law. The filing party must properly identify the document at the time it is filed. Court staff are not required to review documents to determine confidentiality.

801.21 801.21 Motions to seal.

801.21(1) (1) In this section:

801.21(1)(a) (a) “Redact” means to obscure individual items of information within an otherwise publicly accessible document.

801.21(1)(b) (b) “Seal” means to order that a portion of a document or an entire document shall not be accessible to the public.

801.21(2) (2) A party seeking to protect a court record not protected by s. 801.19 or included on the list described in s. 801.20 shall file a motion to seal part or all of a document or to redact specific information in a document. The motion must be served on all parties to the action. The filing party shall specify the authority for asserting that the information should be restricted from public access. The information to be sealed or redacted may be filed under a temporary seal, in which case it shall be restricted from public access until the court rules on the motion.

801.21(3) (3) The court may determine if a hearing is necessary on a motion to seal or redact a court record. The court may require that the moving party provide notice to the general public by posting information at the courthouse or other location, including the time, date, and location of the hearing.

801.21(4) (4) The court shall determine whether there are sufficient grounds to restrict public access according to applicable constitutional, statutory, and common law. In restricting access, the court will use the least restrictive means that will achieve the purposes of this rule and the needs of the requester. The court may order that a document be redacted in the manner provided under s. 801.19. If the court seals or redacts information, the public record shall indicate that an order to seal or redact was issued and the name of the court official entering the order.

801.21(5) (5) An unredacted or sealed document is 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.

801.21(6) (6) The court may, on its own initiative, order sealing or redaction of any part of the court record or transcript.

801.21(7) (7) Documents filed subsequent to the sealing order that are subject to the order must be so identified by the filing party.

801.21(8) (8) Upon court order, the court reporter shall, without charge, redact the transcript or mark the transcript as sealed in accordance with the court order and with directives established by the director of state courts office.