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Electronic Appellate Records Coming Soon!

Appellate Division Director, Jeremy Perri, guest posts on the Wisconsin Supreme Court’s recent adoption of Rules Petition 15-02, which authorizes clerks of circuit court to electronically transmit the record on appeal to the appellate court. This rule takes effect July 1, 2016.

Since January 1, 2013, circuit court clerks have been able to discard a record document 48 hours after it is electronically or optically stored. See Wis. Stat. §807.06(2) and SCR 72.03(3). But, when there is an appeal, clerks have been required to assemble a paper record for the court of appeals, per Rule 809.15(1)(c). That meant that a circuit court clerk had to print out a copy of a previously-scanned record and then mail it to the court of appeals.

The new rule permits (but does not require) a circuit court to electronically transmit documents and records to the court of appeals. If there is an item in the record that is not “electronically maintained,” the circuit court clerk will still have to mail the item to the court of appeals.  

The new rule largely affects the clerks of circuit court and the court of appeals – where previously a record was required to be mailed, the circuit court may now electronically transmit it to the court of appeals.

A few other items to be aware of:

  • Previously,  Rule 809.15(1)9 (Record on appeal) defined the record on appeal as including “Exhibits material to the appeal whether or not received in evidence.”  The amended Rule 809.15(1)9 removes the “material to the appeal” qualifier, and adds more inclusive language for exhibits on appeal:   “Exhibits whether or not received in evidence, including photographs, video recordings, audio recordings and computer media such as discs or flash drives, except that physical evidence, models, charts, diagrams, and photographs exceeding 8.5 x 11 inches in size shall not be included unless requested by a party to be included in the record.” The revision makes it clearer that most exhibits should be included in the record on appeal. If the exhibit is over-sized, you’ll need to request that it be included in the record on appeal.
  • When a record is electronically transmitted, but there are also items in the record that have to be mailed, the date the record will be deemed to be filed is the date the electronic transmission and index is received by the clerk of the court of appeals. See §809.15(4m).  Practitioners will still receive a paper notice alerting them as to the date the record was filed.
  • This rule only addresses what happens after a notice of appeal gets filed. That means that postconviction attorneys will still receive a paper copy of the record under §809.30(2)(g).
  • For practitioners, the most significant effect of the implementation of this rule is that it will provide counsel with electronic access to the record.   The clerk’s memorandum in support of the petition states that “parties who e-file their appellate briefs will have access to the record via the Appellate Court eFiling System.” 
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