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801.18(16) (16) Technical failures.
801.18(16)(a)(a) A user whose filing is made untimely as a result of a technical failure may seek appropriate relief from the court as follows:
801.18(16)(a)1. 1. If the failure is caused by the court electronic filing system, the court may make a finding of fact that the user attempted to file the document with the court in a timely manner by submitting it to the electronic filing system. The court may enter an order permitting the document to be deemed filed or served on the date and time the user first attempted to submit the document electronically or may grant other relief as appropriate.
801.18(16)(a)2. 2. If the failure is not caused by the court electronic filing system, the court may grant appropriate relief from non-jurisdictional deadlines upon satisfactory proof of the cause. Users are responsible for timely filing of electronic documents to the same extent as filing of paper documents.
801.18(16)(b) (b) A motion for relief due to technical failure shall be made on the next day the office of the clerk of court is open. The document that the user attempted to file shall be filed separately and any fees due shall be paid at that time.
801.18(16)(c) (c) This subsection shall be liberally applied to avoid prejudice to any person using the electronic filing system in good faith.
801.18 History History: Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii; Sup. Ct. Order No. 14-03A, 2016 WI 80, 370 Wis. 2d xxxiii; 2017 a. 365 s. 111; Sup. Ct. Order No. 19-01, 2019 WI 44, 386 Wis. 2d xvii; 2019 a. 30, 125; Sup. Ct. Order No. 20-07, 2021 WI 37, filed 4-23-21, eff. 7-1-21.
801.18 Note NOTE: Sup. Ct. Order No. 14-03 states that “the Comments to the statutes and to the supreme court rules 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, 2016
801.18 Note Sub. (2) provides that the mandatory use of electronic filing will be implemented according to a schedule determined by the director of state courts. The director will designate the order and timing of implementation after evaluating the resources available for programming, the readiness of the persons affected, and the logistical support available for implementation. The director may advance or delay implementation of certain case types, may require or exempt participation by certain filers, and may require other conditions as necessary. The director will set the schedule after consultation with the steering committee that oversees the work of the consolidated court automation programs.
801.18 Note All open cases will be converted to an electronic format. Mandatory electronic filing will apply both to new cases and to new documents filed in old cases. This will allow both the court and the parties to more quickly reap the benefits of all-electronic files rather than persist for years with both paper and electronic court records.
801.18 Note Conversion to electronic files is an enormous change for parties, attorneys, and the court system. Good-faith efforts and cooperation will promote a smooth transition to the new system.
801.18 Note Sub. (3) (a) distinguishes between non-attorney filers for purposes of mandatory participation in the electronic filing system. Under s. 799.06 (2), certain employees, agents, and LLC members may be authorized to file on behalf of an organization in small claims proceedings. This group of persons includes both high-volume filers like utility companies and hospitals and low-volume filers like small businesses and individual landlords. This section requires the high-volume filers to use the electronic filing system and allows small filers to participate voluntarily like self-represented parties.
801.18 Note Sub. (3) (j) recognizes that there are persons who occasionally file documents in cases where they are not parties, such as witnesses seeking protective orders, intervenors, amicus curiae, and crime victims under ch. 950. There are also many professionals and agencies regularly providing case-related services to the court, such as presentence investigators and social workers. To the extent that it is feasible and resources allow, the director may provide a means for filing documents and exchange of information in these situations.
801.18 Note Sub. (4) (c) provides that where personal service is not required, submission of a document to the electronic filing system is considered service on the other electronic users. Just as service through the post office is considered complete upon dropping a properly addressed envelope into a mailbox, service using the electronic filing system is complete upon properly transmitting the document.
801.18 Note Sub. (4)(e) is a change to law and practice. Currently, paper filings must arrive at the office of the clerk of court before the end of the regular business day in order to be considered filed on that day. Northern Air Services v. Link, 2011 WI 75, 336 Wis. 2d 1, 804 N.W.2d 458. However, the most common if not universal practice among courts that mandate electronic filing is to use the entire calendar day as the filing period; this is also the practice recommended to the Wisconsin courts by the National Center for State Courts. This provision gives a user an extra few hours to file on the last day a document is due but does not otherwise affect the calculation of time. If a user submits a document or the court signs an order on a day when the clerk's office is closed, it is considered filed on the next day the clerk's office is open, except as provided by other statutes and rules, or by court order.
801.18 Note For consistency, the circuit court fax statute, s. 801.16(2) (f), is also amended. For a document that can be filed by facsimile, paper parties are given the advantage of the extended filing hours by providing that pleadings received before midnight will be considered filed that day.
801.18 Note Sub. (5) does not change the substantive law about when personal service is required for purposes of commencing the action and obtaining jurisdiction over the defendant or respondent.
801.18 Note Sub. (6) (a) provides that the electronic filing system now serves as the means of delivery between users for subsequent documents, the kind that were previously served by mail or delivery. Paper parties will continue to be served by traditional methods for both initiating and subsequent documents.
801.18 Note Sub. (6) (f) outlines how mandatory electronic filing will be initiated on previously filed cases. For cases that are in open status at the time electronic filing becomes mandatory, the clerk will work with attorneys and high-volume filing agents to register as users on their open cases. Parties who are not yet registered but who might be voluntary users will be provided with instructions on how to participate in the electronic filing system if they choose.
801.18 Note For cases that are in closed status, no action is required unless there is further activity on the case. Where post-judgment activity takes place, the first party to initiate electronic activity in the case must serve any unregistered parties by traditional methods. Mandatory users must then register as users on the case.
801.18 Note Sub. (7) (a) provides that filing fees shall be paid through the electronic filing system unless other arrangements are made. Payment of fines and forfeitures may be handled through separate websites. Other fees and deposits, such as guardian ad litem fees and 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 with respect to the restrictions on electronic transactions from trust accounts.
801.18 Note Sub. (7) (b) provides that the electronic filing fee may be waived for indigent parties and their attorneys, using the same procedure and criteria that courts apply to waiver of other costs and fees. If the court denies the waiver, the court may allow time to submit the fee for the filing to be considered filed on the date when it was first submitted.
801.18 Note Sub. (7) (c) provides that the electronic filing fee will not be charged to a Wisconsin governmental unit such as the district attorney, public defender and appointed counsel, court-appointed counsel, child support agency, Attorney General, or county and municipal attorney.
801.18 Note Sub. (8) (a) recognizes that the electronic filing system will become more sophisticated and user-friendly over time. Users should expect a number of changes during the initial years of electronic filing. Information about upcoming changes and any new requirements for equipment, software, formatting, connectivity, security, and staff training will be made available to the public.
801.18 Note Sub. (9) provides that court case files must be kept electronically. Mandatory users are required to file all documents electronically, with only a few exceptions. Documents submitted by paper parties will be converted to electronic format by the clerk of court. Because any paper submitted will be discarded after it is imaged, parties should not submit original documents to the court.
801.18 Note Similarly, this section does not require the parties to retain original paper documents. If there is likely to be a challenge to the validity of a document or exhibit, parties may be well-advised to keep the original document. For a high-volume 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.
801.18 Note Sub. (9) (k) allows most documents submitted in court as exhibits to be imaged and made part of the electronic record, rather than retained in paper format. If the court requires that the original document be produced for inspection, it will be retained pursuant to the supreme court rule governing imaging of exhibits.
801.18 Note Sub. (9) (L) requires an agency submitting an administrative record for review to file an electronic copy of the record.
801.18 Note 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, 481 N.W.2d 629 (1992).
801.18 Note The purpose of authentication is to give assurance by the clerk of court 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, 283 N.W.2d 465 (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.
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 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)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)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).
2019-20 Wisconsin Statutes updated through 2021 Wis. Act 79 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on September 17, 2021. Published and certified under s. 35.18. Changes effective after September 17, 2021, are designated by NOTES. (Published 9-17-21)