Authenticating Disputed E-Signatures at Trial: ESIGN and UETA, Experts, Burdens of Proof, Audit Trails

Description

The federal Electronic Signatures in Global and National Commerce Act (ESIGN) and the Uniform Electronic Transactions Act (UETA), adopted in substantially the same form by every state except New York, which has the Electronic Signatures and Records Act, provide that "electronic" or remote signatures are as equally as valid and enforceable as traditional "wet" signatures, with certain enumerated exceptions in each statute.

But what happens when the authenticity of the e-signature is disputed, as may happen in breach of contract, employment, class action, and arbitration clauses? E-signatures can be stolen, forged, or modified in system security breaches by hackers, malware, or other similar mechanisms. Moreover, the actual reliability of software is not as high as everyone likes to believe.

None of these statutes, however, speak to whether the electronic signature is authentic, nor do they alter the burden of proof for establishing that a signature is what it purports to be if the signatory denies it. The type of evidence needed to authenticate an electronic signature requires careful thought and unique evidence.

With electronic signatures on electronic documents, nothing is tangible and there are no witnesses. As one commentator has observed, someone simply engages software on a machine and relies on it to know what has been signed and when. Electronic signature systems store personally identifying information, which can be stolen or breached, and must comply with data privacy laws. An electronic signature can be removed without notice.

Listen as our panel of experts discusses how to actually prove an electronic signature is what it purports to be.