If a court or regulator allows e-filing but requires the filer to retain an original signed document, can that original itself be electronic?
A bankruptcy court in California recently issued sanctions against an attorney who filed electronic documents without retaining an “original” of the documents as required by the Rules – because the documents held by the attorney were signed using Docusign, and they did not qualify as originals for that purpose. Here is an article about the decision.
Here is the rule in the Court Manual:
Court Manual section 3.4(1)(4): Retention of Original Signatures. The registered CM/ECF User electronically filing the document shall maintain the executed original of the document for a period of five years after the closing of the case or adversary proceeding in which the document is filed, and shall make the executed original available for review upon request of the court or other parties.
The Bankruptcy Court’s rules sound like pretty standard e-filing rules (at least from, say, 15 years ago).”File an electronic version with us, but keep an original and produce it on request.” This outsources document storage to the party doing the filing and allows the courts to deal more efficiently with electronic documents. Doesn’t SEDAR in Canada for filing securities document work the same way?
The question is what can constitute an “original”. Must it be on paper? That’s where E-SIGN and UETA in the US, and the UECA in Canada (and the UN Model Law on E-Commerce that they follow) have an answer, but the court is not bound to agree with it, since those statutes do not apply to courts. The legislative answer is that an original is something that gives assurance of integrity that is appropriate in the circumstances. For a bankruptcy filing, that might have to be pretty high assurance, since the signing party has some incentive to repudiate the signature in some circumstances. (That is not usually the case for general civil litigation.)
So this decision “stands for” the proposition that a Docusign signature is not an “executed original” for that purpose. Maybe another court will be persuaded that it should be accepted for that purpose.
As I understand Docusign, it hashes the signature with the document, so the signature will not be separated from it and used elsewhere. However, Docusign itself does not IIRC do anything to authenticate the signatory – whoever has access to the system can log in and sign whatever his/her log-in credentials allow – even if those credentials were invented for the occasion, without any third-party verification. This is true so far as I know of the Adobe signing systems too.
Would it be helpful to go behind the form of the signature to ask how one might provide evidence of who signed the document? (The fact of there being *some* signature is pretty easy to show.) If there were a handwritten signature on paper, one might have to bring in expert evidence to connect it with the party alleged to have made it. Likewise there may be sufficient evidence of who used the Docusign system to persuade a court on the balance of probabilities. Should the court exclude the possibility of such evidence a priori just because the signature is not handwritten on paper?
I have discussed here what it might mean to require a signature to be “verifiable”. Maybe the same analysis should apply to its being “original”.
It could appear that the article describing the decision is an effort by Cryptomathic to disparage its competitor. All its EU analysis is not only irrelevant to what US courts will do, but a bit misleading on how it works in the EU. My understanding is that among businesses, people do not use qualified e-signatures because they are too hard to do and to prove. It’s easier to prove by other means who signed a document, and what was signed. The novelty of the e-IDAS regulation is in its provisions about intergovernmental recognition of authentication systems accepted by EU member states for communications with the state, which are of course off topic in a California bankruptcy decision.
Cryptomathic essentially says (a) the attorney should have kept a wet signature, and (b) US law should mimic the EU regulation (and prior Directive) in setting up rules for qualified e-signatures. That is arguably what Virginia is doing with its electronic authentication statute, whose technical standards are currently being developed by experts. We’ll see what they come up with. It is also arguably what Canada has done at the federal level with its Secure Electronic Signature regulations, but I am not aware that they are used for any court filings.
And the UNCITRAL Working Group on Electronic Commerce is meeting later this month to discuss identity management and trust services. That group will be pressed to adopt something consistent with the EU Regulation, though there are other submissions. The US government has put in a document developed by the ABA, suggesting that flexibility and technology neutrality are still important. The old bugbear of allocating liability for false authentications remains as potent as ever.
Have you had any different experience in what courts or regulators would accept, where you were required to keep an “original” of what was filed electronically?
Did the California court get it right?