What to know about document retention policies and electronic filing systems

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Most law firms have an established document retention and file destruction policy. They take proactive steps to update and revise their policies in response to the ever-changing laws and regulations that apply to this area. However, resources that offer guidance on document retention and file destruction policies often overlook the nuances of electronic filing systems.

If your firm uses any sort of the electronic filing system, you should be aware of the retention requirements for original signatures and how original signatures can be applied to electronically filed documents.

Let’s look at the specific document retention requirements for both federal court and state court.

Starting with federal court, each district court has CM/ECF (“Case Management/Electronic Case Files”) policies specific to that court. When filing using the Electronic Case Filing System, be aware of the relevant signature retention requirements for the district court where you are filing. Each district is not created equal — well at least not with respect to rules regarding original signatures and the use of multiple signatures on court filings. Also, each district’s bankruptcy court will have its own rules. Below are the rules for the Eastern District and Western District of Wisconsin regarding electronic filing and signatures.

For the Eastern District of Wisconsin’s Electronic Case Filing Policies and Procedures, the attorney signature is represented by the ECF User ID, password and the signature noted in the format of “s/ attorney name.” E.D. Wis. ECF Pol’y & Proc. § II.C.1.

For non-attorney signatures, such as an affiant’s signature, you must obtain the signature on the original document, but on the electronically filed version the signature is noted in the same way that an attorney’s signature is noted: “s/ Signatory Name.” E.D. Wis. ECF Pol’y & Proc. § II.C.2.a.(1)–(3). Here is where the document retention portion comes into play — the original document in paper form must be maintained for one year after the time for appeal has expired. Id.

Now, let’s say that you have a document that requires multiple signatures, such as a stipulation between the parties. For multiple signatures, the filing attorney must make sure the language of the stipulation is acceptable to all required signatories, obtain each party’s authorization for entry of their signature on the document and apply the signature in format of “s/ name.” E.D. Wis. ECF Pol’y & Proc. § II.C.3.a.–d.

Similar to the requirement that applied to non-attorney signatures, the written authorization of each party must be maintained until one year after the time period for the appeal has expired. Id.

In short, when filing in the Eastern District of Wisconsin, maintain original signatures and written authorizations for one year after the time for appeal has expired.

For the Western District of Wisconsin, the same rules apply with slight variations, but the original signatures must be kept for two years until after the time for appeal has expired. W.D. Wis. Elec. Case Filing § III.E. For criminal cases, the signature of a defendant must be filed with an image of the defendant’s signature. Id.

Let’s turn to Wisconsin state court electronic filing requirements. If you are the filing attorney, or you are submitting a filing on behalf of an attorney, the signature of the attorney is represented with “Electronically signed by (name).” Wis. Stat. § 801.18(12)(a). Note that for notarized documents, such as affidavits, the notarial act must still take place by traditional methods with hand-signing and seal.

Additionally, all notary rules still apply including the location of the notarial act and related requirements. An image of the notary’s seal and signature must be filed, and the original document should be kept in the event the notarization is challenged. Wis. Stat. § 801.18(11).

For stipulations, electronic filing users should note that you may file the document with an image of opposing counsel’s signature or, if a representation that the filing party has consulted with the signer and the signer has provided their consent is provided, counsel’s printed name. Wis. Stat. § 801.18(12)(g)2.

Thanks to electronic filing, the clerk of courts will now maintain the court record in an electronic format. If a document is filed by traditional methods, the clerk may discard the paper copy. Wis. Stat. § 801.18(9)(c). Therefore, if you are filing by traditional methods, file a copy, not the original. Wis. Stat. § 801.18(12)(h)–(i).

Keep the original document in your file, including notarized documents, because if the authenticity is challenged, the court may request the original. Id.

Wisconsin statutes require the original copy of a deposition be kept until the appeal period has expired or until the deposition is made part of record. Wis. Stat. § 804.01(6).

In summary, it is important for your firm’s document retention policies to account for the retention requirements of original signatures for the court in which you are filing.