Note Update: The new law was published on Nov. 21, 2019, and took effect on Nov. 22, 2019. 

Nov. 20, 2019 – A new law adds email to the list of methods attorneys can use to serve discovery and other papers on opposing counsel, if consent is received in writing.

The governor signed the new law today (Nov. 20), with an effective date the day after publication. It will amend 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 supported the legislation, AB 59. Rep. Ron Tusler (R-Harrison) and Rep. Chris Taylor (D-Madison), both members of the State Bar of Wisconsin, introduced the legislation earlier this year and it recently passed.

Commenting on the same bill that did not pass in the last legislative term, Appleton personal injury attorney Amy Risseeuw said the new law codifies what attorneys can mutually agree to do already but creates statutory guidance and more certainty.

For instance, the law clarifies that “service by electronic mail is complete upon transmission, except if the sender receives notification or indication that the message was not delivered.” Without this, disputes may arise on the “completeness” of service.

AB 59: 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 pay to physically mail the documents, 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.

Under the new law, email is added to this list. The bill adds the following language to section 801.14(2):

Except as otherwise provided in s. 801.18 (6) (a) and (b), 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.

The “exception” language refers to statutes on the electronic filing of court documents. E-filing is mandatory for attorneys (voluntary for pro se litigants) in “civil, family, small claims, paternity, criminal, traffic, forfeiture, formal and informal probate, guardianship, mental commitment, and judgment and lien cases across the state.”¹

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).

The new law now allows parties and attorneys to exchange court documents by email, if they agree, backed by a statute that allows such transmissions to qualify as “service.”

Additionally, many pretrial papers won’t be filed with the court, such as official 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, a member of the Litigation Section’s Legislative Subcommittee.

The new law says an attorney who is accepting service by email must designate and provide the court with a primary email address “and shall be responsible for the accuracy of and any necessary changes” to the email address provided.

“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.”

Commencing Lawsuits

As noted, the new law 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 judgments 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, and the law requires personal or substituted service. Under section 801.11, the plaintiff must first make attempts to “personally” serve the defendant, through a process server. That is, the 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 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 the new law changes the requirements necessary to serve the summons on a defendant, although there are cases outside Wisconsin that 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 the service of process over the internet is the use of social media sites as forums through which a summons can be delivered.”

Endnotes

¹ Wisconsin Court System, Circuit Court eFiling (last visited Nov. 14, 2019).