One benefit of living in the digital age is that we no longer need to travel to our attorney’s office to place a wet signature on an important contract or mortgage document. Parties now regularly execute multi-million dollar real estate transactions, non-competition agreements, and stock purchases, among other agreements, using digital signature applications. The most often used application, DocuSign, boasts that its solution enables you to electronically sign while meeting the requirements of the ESIGN Act and the Uniform Electronic Transactions Act in the United States, in addition to complying with most other laws in countries where electronic signatures are recognized.
As trial lawyers who often encounter these agreements after a deal has soured, we now have an additional evidentiary burden as we lay a foundation in court and authenticate these documents which the parties “signed” digitally. As with traditional wet signatures, we can anticipate that in some instances we will need to prove that the obligee digitally “signed” the document after he or she denies doing so.
DocuSign offers multiple levels of security and authentication that allow a sender to determine how thoroughly a signer must identify him or herself, including using email, access codes, SMS, phone, and knowledge based identity checks. In these cases, reviewing the authentication data is the digital equivalent of hiring a handwriting expert to authenticate a contract signature.
How Digital Signature Applications Work
In order to understand the trial authentication process for these documents, you need to understand how these digital signature applications work. First, the drafter originates the document and sends it to the obligee using the Docusign application. The drafter may require the obligee to provide additional information about their identify before they can access and sign the document by one of the following secure digital means:
- Email: Signers may authenticate via an email that is sent to their known email account.
- Access Code: Signers receive a one-time code from the sender that they must enter into the Signature service in order to access the document.
- SMS Authentication: A code is sent to the mobile phone number on record for the signer, who must then enter the code into the Signature service in order to access the document.
- Phone: Signers select from the phone numbers on record, or enter a new phone number, and the system dials the selected number. When they answer, the system prompts them to enter an authentication code using the phone keypad and then says their name, which is recorded.
- Knowledge-Based (KBA): This method requires the signer to answer questions about their past, where the answers to which are publicly available, such as past address.
Then Docusign sends the document electronically and permits the obligee to “sign” by entering their digital signature on various locations of the document. Docusign and other providers create a digital signature using an algorithm to generate a hash value that is encrypted and is unique to that signature. When the document is fully executed, Docusign drops a copy of the executed document into the obligee’s online account and creates a “Certificate of Completion.”
By virtue of the process above, DocuSign provides a virtual chain of custody for everyone who has touched, viewed and signed the document. Complete audit logs capture signing parties’ names, digital signatures, date, time, location (if provided), IP address, and authentication method used to access the document.
Authenticating Documents at Trial
If the obligee refuses to acknowledge that he or she signed using Docusign, the first step to this authentication process is to see if the court will take judicial notice of how Docusign works, and the step by step process the signator took to sign the document. However, since Docusign technology is still relatively new and unfamiliar to many judges, it is far from certain that the court will take judicial notice.
Absent judicial notice, you may need to authenticate the document at trial via an affidavit or live testimony that explains how Docusign works and the process by which the signator digitally signed the document.
The key to the authentication process will be to introduce at trial the “Certificate of Completion” which provides the digital signature for each person that signed the document, the date and time the document was signed, and the authentication method used.
Once you have established this process, you will have to show that no one else had access to the secure method by which the document was signed. For example, you might ask, “Sir, is there anyone other than you who has access to the email account: firstname.lastname@example.org?”
Admitting the Document Into Evidence
Once you have authenticated the document, you will need to anticipate a hearsay objection to its admission. For example, it is likely that a document signed via Docusign will fall within an exception to the hearsay rule as a business record, if it was created and kept in the ordinary course of business. Depending on the facts of your case, other hearsay exceptions may also apply.
Using Expert Testimony
If there is a dispute about an issue such as the timing of the signature, it is also possible to introduce expert testimony to establish when and how the document was signed. On at least one occasion, Docusign’s head of mobile production management has testified as an expert at trial, explaining Docusign’s technology and showing precisely when the lease document was signed.
Explaining the Process to the Jury and the Court
As courts and jurors become more comfortable with digital signatures, the process of admitting digitally signed documents will get easier. In the meantime, beyond meeting the technical requirements for admission, take the time to explain the digital signature process to jurors (and judges) in lay terms. A witness from the company that created the document, for example, can provide context as to how and why digital signatures are used, and the prevalence with which they are used in today’s business environment. This will help ensure that jurors will trust the document as much as, or more than, they would trust one signed in a more traditional fashion by pen.
Reprinted with permission from the “March 13, 2019” edition of the “Corporate Counsel”© 2019 ALM Media Properties, LLC. All rights reserved.