March 7, 2018 – A pending bill adds email to the list of methods attorneys can use to serve certain requests, responses, or notices required to be served on opposing counsel, if consent is received in writing, including papers pertinent to discovery.

The bipartisan bill, AB 566,amends Wis. Stat. section 801.14, which governs service and filing of “pleadings and other papers” required to be served on a party, including discovery, written motions, notices, appearances, demands, and judgment offers.

Section 801.14 outlines what parties must do to ensure other parties are properly served. Currently, the statute requires service by postal mailing or delivery in-person or by fax. The bill allows service by email, if the party or attorney agrees in writing.

The bill does not change the service of process requirements necessary to commence a civil action, which requires personal or substituted service, or service by publication and mailing. But it would allow service of legal papers by email once the action is underway.

The State Bar of Wisconsin’s Litigation Section supports AB 566, which already passed the Assembly and could receive Senate consideration this month. Rep. Ron Tusler (R-Harrison) and Rep. Chris Taylor (D-Madison), both lawyers, introduced the legislation.

“The main thing this impacts is discovery,” said Appleton personal injury attorney Amy Risseeuw, a member of the Litigation Section’s Legislative Subcommittee.

Risseeuw said attorneys can already mutually agree to accept email service of documents. But codifying email service could mitigate disputes on whether email service is sufficient when deadlines apply.

AB 566: Service by Email

Currently, under Wis. Stat. section 801.14(2), when service of pleadings and other papers is required to be made upon a party or the party’s attorney, “service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the last-known address, or, if no address is known, by leaving it with the clerk of the court.”

Lawyers can mail the documents via postal mail, which will generally take one to three days. Or they can deliver a copy of the documents in one of several other ways:

· by handing it to the attorney or to the party;

· by transmitting a copy of the paper by facsimile machine to his or her office;

· by leaving it at his or her office with a clerk or other person in charge thereof;

· if there is no one in charge, leaving it in a conspicuous place therein; or

· if the office is closed or the person to be served has no office, leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.

Proposed AB 566 adds email to this list language, stating that “if an attorney, or a party if appropriate, has consented in writing to accept service by electronic mail, delivery of a copy within this section may also include transmitting a copy of the paper by electronic mail to his or her primary or other designated electronic mail address … Service by electronic mail is complete upon transmission, except if the sender receives notification or indication that the message was not delivered.”

This language works in concert with service rules for parties that e-file court documents, which is mandatory for attorneys (voluntary for pro se litigants) in civil, family, paternity, probate, small claims, and criminal traffic and ordinance cases.

Notice for E-filing

In those case types, once an attorney submits a court filing electronically, opposing attorneys get a “notice of activity.” Under section 801.18(6)(a), “the notice of activity is valid and effective service on the other users and shall have the same effect as traditional service of a paper document,” unless personal service is required.

The e-filing “notice of activity” is sufficient for parties that are using the e-filing system for that case. But not all cases will be e-filed (e-filing is not mandatory for all case types), and not all parties will use e-filing (e-filing is voluntary for pro se litigants).

For “paper parties,” the traditional service rules apply unless the parties or attorneys agree to exchange court-filed documents by email or some other method.

Additionally, many documents to be served are not filed with the court, such as discovery requests and responses between attorneys. In those cases, no party is receiving a “notice of activity” and technically must follow the mail, fax, or delivery service rule.

“There are multiple items that have to be served on counsel that are not filed with the court,” said Risseeuw, who noted the bill still allows attorneys to decline service by email, or designate staff to receive emails to be processed as paper copies would be.

Under the bill, service by electronic mail is complete upon transmission, except if the sender receives notification or indication that the message was not delivered.

If the email transmission is completed between 5 p.m. and midnight, it is treated as being transmitted the following day, for purposes of any deadlines that are triggered.

“I think you will see a trend for opting in to email service, as long as it’s a smooth transition to get staff on board,” Risseeuw said. “As long as the attorney is not the only responsible party to receive these emails, it should become more and more common.”

Risseeuw said emails can be easily lost, so attorneys will want to develop a method for tracking and documenting deadline-triggering emails if they have agreed to service by email. “It might be a generational issue,” Risseeuw said. “I’m sure you will find attorneys who just don’t want to do it by email because they already have an established method in place.”

Service of Process to Commence Lawsuits

As noted, AB 566 does not change the personal or substituted service of process requirements for a summons, which establishes the court’s personal jurisdiction.

Under Wis. Stat. section 801.02(1), a civil action seeking a personal judgment is commenced “when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant … within 90 days after filing.”

The defendant must be served with a summons. Under section 801.11, the plaintiff must first make attempts to “personally” serve the defendant. That is, a process server must hand an authenticated copy of the summons to the defendant, face-to-face.

If the plaintiff makes reasonable, but unsuccessful, attempts to personally serve the defendant, another method is available. The plaintiff can attempt substituted service by leaving a copy of the summons at the defendant's usual place of abode in the presence of some competent member of the family at least 14 years of age, or in the presence of a competent adult, currently residing in the abode of the defendant.

If that doesn’t work, the plaintiff can serve the defendant by publication of a legal notice, usually in a local newspaper that the defendant will likely see, together with a postal mailing if the defendant’s postal address is known or can be reasonably ascertained.

Again, nothing in AB 566 changes the requirements necessary to serve the summons on a defendant, although there are cases outside Wisconsin that have considered whether service of a summons through email or social media was proper service.

For instance, in a 2015 New York case, Baidoo v. Blood-Drzraku, a New York appeals court ruled that a wife could serve her husband via Facebook to commence a divorce. The judge said courts now routinely permit email to effectuate service, and added:

“The past decade has also seen the advent and ascendency of social media, with websites such as Facebook and Twitter occupying a central place in the lives of so many people,” the judge wrote in the Baidoo case. “Thus, it would appear that the next frontier in the developing law of service of process over the internet is the use of social media sites as forums through which a summons can be delivered.”