ADMISSIBILITY OF DOCUMENTS AS

EVIDENCE: SPANNING THE SPECTRUM

FROM PAPER COPIES, DIGITAL IMAGES
AND DIGITAL CONTENT

AIIM and ARMA Seminar

February 20, 2003
Hon. Susan Oki Mollway
Robert Carson Godbey
Kenneth K. Fukunaga
UETA and E-SIGN
❂ Uniform Electronic Transactions Act (UETA)
❂ Electronic Signature in Global and National
Commerce Act (E-SIGN)
UETA
❂ National Conference of Commissioners on
Uniform State Laws (NACCUSL) uniform act
❂ Less extensive than UCITA (Uniform
Computer Information Transactions Act)
E-SIGN
❂ Federal statute, passed in part because
uniform adoption of UETA looked
problematic
❂ Patterned after UETA - adopts many
provisions verbatim
❂ Generally, however, less comprehensive
and more general
Philosophy of the Acts
❂ Most legal requirements for a writing can
be satisfied by an electronic record
❂ Most legal requirements for a signature
can be satisfied by an electronic signature
Which Act Governs?
❂ E-SIGN expressly preempts conflicting
state law
❂ But exception for NCCUSL version of UETA,
which may still control
❂ Hawaii’s version of UETA differs from
NCCUSL
• Result of this unclear
Four Critical Terms
❂ Transaction - an action or set of actions
occurring between two or more persons
relating to the conduct of business,
commercial, or governmental affairs.
❂ Record - information that is inscribed on a
tangible medium or that is stored in an
electronic or other medium and is
retrievable in perceivable form
Terms (cont.)
❂ Electronic Record - a record created,
generated, sent, communicated, received,
or stored by electronic means
❂ Electronic Signature - an electronic sound,
symbol, or process attached to or logically
associated with a record and executed or
adopted by a person with the intent to sign
the record
Four Rules of UETA and E-SIGN
❂ A record or signature shall not be denied
legal effect or enforceability solely
because it is in electronic form
❂ A contract shall not be denied legal effect
or enforceability solely because an
electronic record was used in its formation
Rules (cont.)
❂ If a law requires a record to be in writing,
an electronic record satisfies the law
❂ If a law requires a signature, an electronic
signature satisfies the law
Limitations
❂ UETA and E-SIGN only apply to Transactions
• an action between two or more persons
relating to business or governmental affairs
❂ Do NOT apply to unilateral acts
• wills, trusts, notice of eviction, foreclosure,
cancellation of insurance, etc.
• Product recalls, documents relating to
hazardous materials
Must be an Agreement
❂ To Conduct Transaction by Electronic
Means
❂ UETA provides agreement cannot be in
standard form contract, unless
• a separate and optional agreement, or
• standard form contract is itself an electronic
record
Consumer Contracts - clear
statement of:
❂ affirmative consent to e-commerce
❂ clear and conspicuous statement of the
right to a paper transaction
❂ the right to withdraw consent
❂ the hardware and software required to
access the record
Evidentiary Rules
❂ May not be excluded merely because it is in
an electronic medium
❂ May be excluded for many other reasons!
Evidence Generally
❂ Must be relevant
❂ Have adequate foundation
❂ Not be hearsay
Relevant Evidence
❂ Means evidence having a tendency to make
the existence of a fact that is of
consequence more or less probable
❂ All relevant evidence is admissible, except
as otherwise provided by law
Adequate Foundation
❂ Evidence sufficient to support a finding that
the matter in question is what its
proponent claims, such as --
• Testimony of a witness with knowledge
• Evidence describing a process or system used
to produce an accurate result
Hearsay
❂ Evidence other than testimony offered for
the truth of the matter asserted
❂ A contract generally is not hearsay
❂ Most other records may be
Hearsay Exception for Business
Records
❂ Record made at or near the time by a person with
knowledge
❂ Kept in the course of a regularly conducted
business activity
❂ Made as part of the regular practice of that
business
❂ As shown by testimony of the custodian or other
qualified witness, or by certification
❂ UNLESS circumstances indicate a lack of
trustworthiness
UETA and E-Sign: Proving a
Signature
❂ Do NOT require a Digital Signature
• Digital Signature is a method of signing an
electronic document to insure integrity and
usually uses cryptography
❂ Can be any “electronic sound, symbol, or
process attached to or logically associated
with a record and executed or adopted by a
person with the intent to sign the record”
Proving a Signature (cont.)
❂ UETA and ESIGN do NOT create a legal
presumption that the purported sender
actually sent the electronic record
❂ Proof of “intent” often a challenge in law
UETA Provision re Attribution
❂ An electronic record or signature is
attributable to a person if it was the act of
the person. The act of a person may be
shown in any manner, including a showing
of the efficacy of any security procedure
applied to determine the person to which
the electronic record or electronic
signature was attributable
Attribution (cont.)
❂ The effect of an electronic record or
electronic signature attributed to a person
is determined from the context and
surrounding circumstances at the time of
its creation, execution, or adoption,
including the parties’ agreement, if any,
and otherwise as provided by law
Practical Issues
❂ How do you make sure an electronic
signature is attributable to the right
person?
• Password protected web pages
• Follow-up mailings
• Confirmation of personal facts
• Public key encryption
Other Issues
❂ Clearly alert signer that he or she is signing a
document with legal consequences
• Pop-up screens that disclose this fact
• Second click
• Type out signature
❂ Preserve all related screens
❂ Be “affixed” to the “record” involved in a manner
that will allow both parties to access a copy of the
record and the attached signature, and any
associated click-stream
Record Retention
❂ If a law requires that a record be maintained, an
electronic record will suffice if
• it is accurate
• it remains accessible for later reference to all persons
who are entitled to access
• in a form that is capable of being accurately
reproduced for later reference
❂ An electronic record that meets these
requirements satisfies the requirement that an
“original” be kept
Rule 1 Regarding Error
❂ If the parties have agreed to a security
procedure, and one conformed and the
other did not, and the nonconforming party
would have detected the error had it
conformed, then the conforming party may
elect to avoid the effect of the changed or
erroneous electronic record
Rule 2 Regarding Error
❂ In an automated transaction involving an individual, the
individual may elect to avoid the effect of an error, even if
the individual made the error, if the individual is dealing
with an electronic agent and the agent did not provide an
opportunity for the prevention or correction of the error.
The individual
• must promptly notify the other party of the error and that the
individual does not intent do be bound by it
• take reasonable steps to return or destroy the consideration, as
they are instructed by the other party
• have not used or received any benefit or value from the
consideration
Rule 3 Regarding Error
❂ If neither of the previous situations applies,
the change or error has the effect provided
by other law, including the law of mistake
and the parties’ contract, if any
UETA and E-SIGN also
❂ Apply to “transferable records”
❂ Authorize “electronic agents”
❂ Establish “mailbox” rules
❂ Authorize Electronic Notarization
• How?