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    The Wisconsin Supreme Court will hold a public hearing Jan. 21, 2010, on Order 09-01 regarding discovery of electronically stored information. On Feb. 24, the court will hold a public hearing on Order 08-11 regarding adverse determination of bar applicants’ character and fitness and Order 09-07 regarding expunction of circuit court records. Also on Feb. 24, the court will hold an open administrative conference on Order 06-04 regarding trust account rules and will entertain written comments received by Feb. 5. On March 8, the court will hold a second public hearing on Order 07-09 regarding defining the practice of law. In Order 09-06, the court set an effective date of April 1, 2010, for amendments to SCR 10.04(1) regarding officers of the State Bar of Wisconsin. 


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    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 12, December 2009

    Trust Account Rules

    In the matter of review of amendments to SCR 20:1.15 Safekeeping Property; SCR 20:1.0 Definitions; SCR 21.16 Discipline; and SCR 12.04 Wisconsin Lawyers’ Fund for Client Protection

    Order 06-04

    On May 22, 2006, the Office of Lawyer Regulation and the State Bar of Wisconsin filed a joint petition proposing certain modifications to the “trust account rule,” SCR 20:1.15, together with related amendments to SCR 20:1.0 that added definitions for advanced fees, flat fees, and retainers, SCR 21.16 (Discipline) and SCR 12.04 (Wisconsin Lawyers’ Fund for Client Protection). The supreme court held a public hearing on the petition on Jan. 17, 2007. At the ensuing administrative conferences, the court discussed the matter and voted 6:1 to adopt the petition, as amended, and to review the rule amendments in three years. Justice Bradley dissented from that portion of the petition permitting alternative protection for advanced fees, SCR 20:1.15(b)(4m). The effective date of these amendments was July 1, 2007. A copy of the court’s order dated May 2, 2007, is available on the Web site of the Wisconsin Supreme Court under http://wicourts.gov/supreme/sc_hearing_rules.jsp.

    IT IS ORDERED that on Wednesday, February 24, 2010, at 9:30 a.m., in the Supreme Court Room in the State Capitol, Madison, Wis., the court will hold an open administrative conference during which the court will review the rule amendments adopted in order 06-04 in 2007 and any written comments that are filed following the issuance of this scheduling order.

    The court notes that it extensively amended SCR 20:1.15 in its order dated July 1, 2009, on petition 08-03, In re the matter of amendments to SCR 20:1.15, IOLTA Trust Accounts, relating to interest paid on IOLTA accounts. These amendments are not the subject of the review at the Feb. 24, 2010, administrative conference.

    IT IS FURTHER ORDERED that all comments on the 2007 rule amendments should be submitted in writing. Any interested persons may file with the court any written comments on the rule amendments, preferably no later than Feb. 5, 2010.

    IT IS FURTHER ORDERED that notice of the administrative conference be given by publication of a copy of this order in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.1

    Dated at Madison, Wis., this 12th day of November, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    1Notice of the open administrative conference will appear in the December 2009 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 73 days prior to the hearing rather than the required maximum of 60 days, due to the State Bar’s publication schedule. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

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    Defining the Practice of Law

    In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law

    Order 07-09

    On June 19, 2007, the Board of Governors of the State Bar of Wisconsin filed a petition asking the court to create a new court rule to define the practice of law and to create a system to administer the rule, subject to supervision and control by the court.1 A public hearing and open administrative conference on this matter were conducted on Dec. 10, 2007. Numerous interested persons appeared at the hearing or submitted written comments. The court further discussed the matter, including additional written comments received, at open administrative conferences on March 14, 2008, and Oct. 28, 2008.

    At its administrative conference on Oct. 28, 2008, the court acknowledged that the “working draft” of the proposed rule now bore little resemblance to the petition originally filed. A majority of the court voted to schedule a second public hearing on the issue of whether this court should adopt a rule defining the practice of law and create a system to administer the rule, subject to supervision and control by the court.

    IT IS ORDERED that a second public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, March 8, 2010, at 9:45 a.m.

    IT IS FURTHER ORDERED that the court’s conference in the matter shall be held promptly following the public hearing.

    IT IS FURTHER ORDERED that the court will post the most current working draft of the proposed rule on its Web site by Jan. 1, 2010.

    IT IS FURTHER ORDERED that notice of this second public hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.2

    Dated at Madison, Wis., this 2nd day of November, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    1The petition is available on the court’s Web site at http://wicourts.gov/supreme/petitions_audio.htm.

    2 Notice of the hearing will appear in the December 2009 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 83 days prior to the hearing rather than the required maximum of 60 days, due to the State Bar’s publication schedule. Notice of the hearing will also appear in the February 2010 Wisconsin Lawyer approximately 21 days prior to the hearing rather than the required minimum of 30 days, due to the State Bar’s publication schedule. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

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    Adverse Determination of Bar Applicant’s Character and Fitness

    In the matter of the amendment of Supreme Court Rule 40.08 relating to adverse determination of a bar applicant’s character and fitness.

    Order 08-11

    On April 1, 2008, the Board of Bar Examiners by its former director, John E. Kosobucki, petitioned this court for an order amending Supreme Court Rule (SCR) 40.08 relating to adverse determination of a bar applicant’s character and fitness. An amended petition was filed on July 24, 2008.

    IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Wednesday, Feb. 24, 2010, at 9:30 a.m.

    IT IS FURTHER ORDERED that the court’s conference in the matter shall be held promptly following the public hearing.

    IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the amended petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.1

    Dated at Madison, Wis., this 12th day of November, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    1Notice of the hearing will appear in the December 2009 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 71 days prior to the hearing rather than the required maximum of 60 days, due to the State Bar’s publication schedule. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements. 

    Petition

    The Board of Bar Examiners, by its director John E. Kosobucki, hereby petitions the Supreme Court of Wisconsin for an order amending SCR 40.08 as follows:

    PROPOSED AMENDMENTS:

    SCR 40.08 Adverse determination.

    Before declining to certify an applicant’s satisfaction of requirements under this chapter, the board shall notify the applicant in writing of the basis for its determination that the application is at risk of being denied and, except as to failure of the bar examination under SCR 40.04, the applicant shall have the opportunity to request a hearing within thirty days of the mailing of notification of the board’s decision to the applicant at the last address furnished by the applicant in writing to the board.

    (2) (Repealed)

    (3) Not less than 30 days prior to the hearing the board shall notify the applicant of the time and place thereof, the issues to be considered and that the applicant may be represented by counsel and present evidence.

    (4) If the determination of the board following a hearing is adverse to the applicant, the board shall mail a copy of the board’s findings of facts and conclusions of law to the applicant at the last address furnished by the applicant in writing to the board.

    (5) A petition to the supreme court for review of an adverse determination of the board under this rule shall be filed with the clerk of the supreme court within 30 days of the date on which written notice thereof was mailed to the applicant and a copy shall be filed with the board promptly thereafter. However, if the applicant petitions the board for reconsideration of an adverse determination, the deadline for seeking supreme court review shall be 30 days after written notice of the board’s disposition of the petition for reconsideration was mailed to the applicant. 

    JUSTIFICATION:

    When the board makes a preliminary determination that proof is lacking of an applicant’s qualifications for admission, it now sends what is called an “intent-to-deny” letter. The terminology is unfortunate, for it suggests that the board has made up its mind to deny admission. The first proposed amendment to SCR 40.08(1) more accurately describes this always preliminary board determination as a notice that the application is at risk of being denied.

    The second amendment gives applicants who receive this notice thirty days, instead of twenty, to file a response and to request a hearing. The board believes this additional time will be useful to applicants without appreciably delaying the board’s final decision.

    The proposed repeal of SCR 40.08(2) is a largely insubstantial change. In practice, the board’s final determination as to an at-risk application usually turns on the applicant’s credibility. Consequently, a hearing at which the applicant can answer board members’ questions is usually necessary for fairness.

    The proposed amendments to SCR 40.08(5) deal with procedures after the board makes a final determination to deny a candidate’s application for admission. The first change requires candidates who appeal to this court to also file an informational copy of their challenge with the board. That will give the board an opportunity to ask to be heard if the board believes it can further assist the court in its review.

    The second amendment provides a window of opportunity for candidates who prefer to seek reconsideration from the board rather than immediately seeking review in this court. If the court adopts the latter amendment, board rules of procedure will provide for reconsideration when the applicant believes the board has made a material error of fact or law or believes he or she has discovered new evidence sufficient to change the board’s decision.

    Dated this 31st day of March, 2008.

    Respectfully submitted,

    John E. Kosobucki, Director, Board of Bar Examiners

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    Discovery of Electronically Stored Information

    In the matter of amendment of Wis. Stat. §§ 802.10, 804.08, 804.09, 804.12, and 805.07

    Order 09-01

    On April 23, 2008, the Wisconsin Judicial Council, by Staff Attorney April M. Southwick, petitioned this court for an order amending Wis. Stat. §§ 802.10, 804.08, 804.09, 804.12, and 805.07, relating to discovery of electronically stored information.

    IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Thursday, Jan. 21, 2010, at 9:30 a.m.

    IT IS FURTHER ORDERED that the court’s conference in the matter shall be held promptly following the public hearing.

    IT IS FURTHER ORDERED that the petition and memorandum in support of the petition shall be made available on the Web site of the Wisconsin Supreme Court under http://wicourts.gov/supreme/petitions_audio.htm.

    IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

    Dated at Madison, Wis., this 2nd day of November, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    Petition

    For the reasons stated, The Judicial Council respectfully requests that the Supreme Court adopt the following rules.

    SECTION 1. 802.10 (3) (jm) of the statutes is created to read:

    802.10 (3) (jm) The need for discovery of electronically stored information.

    JUDICIAL COUNCIL NOTE: Sub. (3) has been amended to encourage courts to be more active in managing electronic discovery. Pursuant to Wis. Stat. § 805.06, the court may also appoint a referee to report on complex and/or expensive discovery issues, including those involving electronically stored information.

    SECTION 2. 804.08 (3) of the statutes is amended to read:

    (3) Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including electronically stored information, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.

    JUDICIAL COUNCIL NOTE: The term “electronically stored information” has the same broad meaning in Wis. Stat.
    § 804.08(3) as in Wis. Stat. § 804.09(1). A party that wishes to invoke Wis. Stat.
    § 804.08(3) by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory.

    SECTION 3. 804.09 (1) and (2) of the statutes are amended to read:

    804.09 Production of documents and things and entry upon land for inspection and other purposes. (1) Scope. Any party may serve on any other party a request (a) to produce and permit the party making the request, or someone acting on the party’s behalf, to inspect and copy, any designated documents or electronically stored information (including writings, drawings, graphs, charts, photographs, phono-recordssound recordings, images, and other data or data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of s. 804.01(2) and which are in the possession, custody or control of the party upon whom the request is served; or (b) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation therein, within the scope of s. 804.01(2).

    JUDICIAL COUNCIL NOTE: Wis. Stat. § 804.09(1) is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents. The change clarifies that Wis. Stat. § 804.09 applies to information fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined. A Wis. Stat. § 804.09 request for production of “documents” should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and “documents.”

    (2) Procedure. (a) Except as provided in s. 804.015, the request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.

    (b) 1. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form, or if no form was specified in the request, the party shall state the form or forms it intends to use.

    2. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

    a. A party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request;

    b. If a request does not specify a form for producing electronically stored information, a party shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

    c. A party need not produce the same electronically stored information in more than one form.

    (c) The party submitting the request may move for an order under s.
    804.12 (1) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as request

    SECTION 4. 804.12 (4m) of the statutes is created to read:

    (4m) Failure to provide electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

    JUDICIAL COUNCIL NOTE: The “routine operation” of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of the routine operation to prevent the loss of information, if that information is subject to a preservation obligation. 

    SECTION 5. 805.07 (2) and (3) of the statutes are amended to read:

    805.07 (2) Subpoena requiring the production of material. (a) A subpoena may command the person to whom it is directed to produce the books, papers, documents, electronically stored information, or tangible things designated therein. A subpoena may specify the form or forms in which electronically stored information is to be produced. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.

    (b) Notice of a 3rd-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a 3rd-party subpoena requests the production of books, papers, documents, electronically stored information, or tangible things that are within the scope of discovery under s. 804.01(2)(a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.

    JUDICIAL COUNCIL NOTE: The addition of sampling and testing to Wis. Stat. § 805.07(2) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a person’s electronic information system, although such access might be justified in some circumstances.

    (3) Protecting a person subject to a subpoena. (a) Avoiding undue burden or expenses; sanctions. A party or attorney responsible for issuing and serving a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court shall enforce this duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney’s fees, on a party or attorney who fails to comply.

    (b) Protective orders. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, electronically stored information, or tangible things designated therein.

    (c) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises, or to producing electronically stored information in the form or forms requested. The objection shall be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: 1. At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.

    2. These acts may be required only as directed in the order, and the order shall protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance. 

    SECTION 6. 805.07 (7) of the statutes is created to read:

    (7) Duties in response to a subpoena. (a) Documents. A person responding to a subpoena to produce documents shall produce them as they are kept in the ordinary course of business or shall organize and label them to correspond to the categories in the demand.

    (b) Electronically stored information. 1. Form of electronically stored information not specified. If a subpoena does not specify a form for producing electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

    2. Electronically stored information produced in only one form. The person responding need not produce the same electronically stored information in more than one form.

    The Wisconsin Judicial Council respectfully requests that the Court publish the Judicial Council Notes to proposed Wis. Stats. §§ 804.08 (3), 804.09 (1), 804.12 (4m) and 805.07 (2).

    CONCLUSION

    For more than a decade, litigants and courts have confronted an increase in discovery of electronically stored information. The proposed rules are intended to provide consistency and predictability in the discovery of electronically stored information. More importantly, they are intended to reduce the economic burden on litigants that can result from discovery involving an enormous volume of electronically stored information.

    Therefore, the Wisconsin Judicial Council respectfully urges this Court to amend Wis. Stats. §§ 802.10, 804.08, 804.09, 804.12, and 805.07 relating to discovery of electronically stored information.

    Respectfully Submitted,

    Wisconsin Judicial Council

    By: April M. Southwick, Staff Attorney

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    Officers of the State Bar of Wisconsin

    In the matter of the petition to amend Supreme Court Rule 10.04(1) to permit nonresident members to serve as certain officers of the State Bar of Wisconsin.

    Order 09-06

    On June 24, 2009, the State Bar of Wisconsin filed a petition for the amendment of Supreme Court Rule 10.04(1) to permit non-resident members of the State Bar to hold office as treasurer, secretary, and chairperson of the board of governors.

    On Nov. 2, 2009, the court held a public hearing on the petition.

    IT IS ORDERED that, effective April 1, 2010, Supreme Court Rule 10.04 (1) is amended as follows:

    Section 1. 10.04 (1) of the Supreme Court Rules is amended to read:

    10.04 (1) Titles; Nomination and Election. The officers of the state bar include a president, a president-elect, an immediate past-president, a chairperson of the board of governors, a secretary and a treasurer, who shall be nominated and elected in the manner provided by the bylaws. Only active members of the state bar residing and practicing law in Wisconsin are eligible to serve as officers president or president-elect of the association. The term of office of the president, president-elect, immediate past-president and chairperson of the board of governors is one year. The term of the secretary and the treasurer is 2 years, with the secretary elected in even-numbered years and the treasurer elected in odd-numbered years. The term of each officer runs until the qualification of a successor.

    IT IS ORDERED that notice of this amendment of Supreme Court Rule 10.04 (1) be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

    Dated at Madison, Wis., this 2nd day of November, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

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    Expunction of Circuit Court Records

    In the matter of amendment of Chapter 72 of the Supreme Court Rules relating to expunction.

    Order 09-07

    On June 30, 2009, the Board of Governors of the State Bar of Wisconsin, petitioned this court for an order amending Chapter 72 of the Supreme Court Rules relating to expunction of circuit court records. An amended petition was filed on Oct. 27, 2009.

    IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Wednesday, Feb. 24, 2010, at 9:30 a.m.

    IT IS FURTHER ORDERED that the court’s conference in the matter shall be held promptly following the public hearing.

    IT IS FURTHER ORDERED that the amended petition and memorandum in support of the amended petition shall be made available on the Web site of the Wisconsin Supreme Court under http://wicourts.gov/supreme/petitions_audio.htm.

    IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the amended petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.1

    Dated at Madison, Wis., this 12th day of November, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    1Notice of the hearing will appear in the December 2009 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 71 days prior to the hearing rather than the required maximum of 60 days, due to the State Bar’s publication schedule. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements. 

    Amended Petition

    On June 26, 2009, the Board of Governors of the State Bar of Wisconsin, acting pursuant to the recommendation of the Criminal Law Section and the Individual Rights and Responsibilities Section, voted unanimously to petition this Court for an order revising Chapter 72 of the Wisconsin Supreme Court Rules. The reasons for this petition and a description of the proposed change are described in the attached memorandum supporting this petition.

    Proposed Change to SCR Chapter 72

    The State Bar of Wisconsin seeks this change in order to codify the inherent authority of Wisconsin courts to manage their own files and determine when they ought be made public. The proposed change would clarify the language in Wis. SCR § 72.06 to provide clearer direction to circuit court judges. The State Bar of Wisconsin includes judges, prosecutors, criminal defense attorneys and civil rights attorneys among its members.

    It is proposed that Chapter 72 of the Supreme Court Rules be modified to read as follows:

    SCR CHAPTER 72

    RETENTION AND MAINTENANCE OF COURT RECORDS

    SCR 72.01 Retention of original record.

    [unchanged]

    * * *

    SCR 72.015 Retention of original felony, misdemeanor, forfeiture and ordinance records.

    The time periods for retention of case files, court records and minute records referred to in rule SCR 72.01 concerning felony, misdemeanor, forfeiture and ordinance cases apply to the type of case at the time of the final disposition of the case, rather than the type of case when the file was opened. For any felony, misdemeanor, forfeiture and ordinance cases with multiple counts, the longest retention period of any one count after final disposition applies to all counts in that case. 

    * * *

    SCR 72.06 Expunction.

    (1) A court may order a court record expunged under any of the following circumstances:

    (a) When authorized or required to do so by statute.

    (b) On the motion of any party to a case at or after the expiration of the minimum retention period as found under §72.01 for the type of case represented by the final disposition of the matter.

    (c) Upon dismissal of the case, or in the event of a judgment of acquittal, if a court believes expunction is necessary and appropriate:

    1. In the interest of justice; and

    2. The court finds, either at the time of the dismissal of the case or within a reasonable period of time thereafter, that a party to the case would benefit and society would not be harmed by expunction, either at the time of the dismissal of the case or within a reasonable period of time thereafter. 

    (2) When required by statute or court order to expunge expunging a court record, the clerk of the court shall do all of the following:

    (1) (a) Remove any paper index and nonfinancial court record and place them in the case file.

    (2) (b) Electronically remove any automated nonfinancial record, except the case number.

    (3) (c) Seal the entire case file.

    (4) (d) Destroy expunged court records in accordance with the provisions of this chapter.

    (e) Notify the Department of Justice of the expunction of the court record pursuant to Wis. Stats., §165.83(2)(A). 

    Conclusion.

    As further explained in the attached memorandum, the State Bar of Wisconsin seeks the proposed changes in order to clarify the authority of the trial court to exercise its “supervisory power over its own records and files” (Nixon, 425 U.S. at 597) in the manner described in the proposed revised Wis. SCR § 72.06.

    Respectfully submitted, Oct. 27, 2009.

    On Behalf of the State Bar of Wisconsin

    Atty. Douglas W. Kammer, President, State Bar of Wisconsin

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