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.
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