DRS Data & Research Services : Are electronic signatures admissible in court?

It's a common question: how will an electronic signature hold up if challenged in court? After all, electronic signatures are becoming a vital business tool in today's remote environment - and people want to know if they end up in litigation that the authenticity of an e-signature can be proved like a traditional wet signature. The short answer: Yes, it can. Authenticity is easier to prove, in fact, thanks to built-in digital audit trails.

In disputes over agreements, courts are sometimes charged with establishing whether a signature is valid and attributring it to the signer, based on an evidentiary burden of proof. A digital audit trail does that brilliantly and in a way that other methods can't touch, because the data captured around an electronic signature provides more concrete evidence around the authenticity of someone's signature, and thereby their obligations under a contract, making it easier to meet the burden of proof.

In fact, Tyler Newby, Partner at Fenwick & West LLP does a fantastic job outlining just how valuable audit trails are in authenticating e-signatures in court in his article, 'Using E-Signatures in Court-The Value of an Audit Trail.'

Typically for wet signatures, validity and attribution are established by comparing copies of signatures and presenting testimony from handwriting experts or witnesses who were present at the signing. Not only is this expensive and time consuming, it's less reliable due to the human element. By removing the chance for human error and automating the entire data capturing process, audit trails make it easier to establish authenticity and address disputes over signatures both in state and federal courts.

In his article, Newby outlines a variety of cases where audit trails were effective in establishing a signatory because of information they contain. Data establishing IP addresses, date, time and location for when a contract was received, viewed and signed has proven particularly relevant to establishing signature authenticity.

One state case that Tyler cited, IO Moonwalkers, Inc. v. Bank of America, went as far as to say that the DocuSign system established an electronic trail of information (send, receipt, signature, review) that wasn't available before the digital age and is a more credible method of establishing evidence than a sworn statement of whether an agreement was sent via mail.

All audit trails are not created equal, so how the audit trail is set up is crucial. If done right, there's an amazing amount of case law to support their admissibility in court.

The DocuSign eSignature audit trail includes all the components mentioned in the case law and follows a secure and documented process necessary for court admissibility:

• A complete, automated history of every viewing, printing, sending, signing or declining activity, including key event timestamps
• Identifying data, such as the signer's IP address or officially affiliated email address
• Geolocation of signers, if they agree to share that info
• A tamper-evident seal that validates documents haven't been altered outside of each signing event
• A court-admissible certificate of completion available to all participants in the transaction
• Multiple levels of authentication based on email, access code, SMS, phone, geo-location and more

DocuSign also takes a security-first approach to e-signatures to ensure all audit trails, certificates of completion and customer documents that flow through the DocuSign Agreement Cloud stay safe, secure and unaltered before, during and after signing.

For more on the security of e-signatures in general and what makes them safe, read 'Are electronic signatures safe?'

Established case law demonstrates that secure, established digital audit trails strengthen a party's position in court as compared to wet signatures, image signatures and less mature e-signature solutions. For more information on court support for electronic signatures overall and DocuSign eSignature in particular, read:

• Using E-Signatures in Court-The Value of an Audit Trail (Tyler G. Newby, Fenwick & West LLP)
• Court support for electronic signatures in the United States (a DocuSign white paper)
• Electronic signatures and transactions in the United States (a DocuSign white paper)
• Are electronic signatures legal? (DocuSign blog)

This blog post is offered for general information purposes only. It does not constitute, and is not a substitute for, legal advice.

Electronic SignatureLegal