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) a Electronic Signature in Global and National Commerce Act (E-SIGN)
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UETA
National Conference of Commissioners on Uniform State Laws (NACCUSL) uniform act a Less extensive than UCITA (Uniform Computer Information Transactions Act)
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E-SIGN
Federal statute, passed in part because uniform adoption of UETA looked problematic a Patterned after UETA - adopts many provisions verbatim a Generally, however, less comprehensive and more general
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Philosophy of the Acts
Most legal requirements for a writing can be satisfied by an electronic record a Most legal requirements for a signature can be satisfied by an electronic signature
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Which Act Governs?
E-SIGN expressly preempts conflicting state law a But exception for NCCUSL version of UETA, which may still control a Hawaii’s version of UETA differs from NCCUSL
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• 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. a 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
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Terms (cont.)
Electronic Record - a record created, generated, sent, communicated, received, or stored by electronic means a 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
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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 A contract shall not be denied legal effect or enforceability solely because an electronic record was used in its formation
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Rules (cont.)
If a law requires a record to be in writing, an electronic record satisfies the law a If a law requires a signature, an electronic signature satisfies the law
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Limitations
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UETA and E-SIGN only apply to Transactions
• an action between two or more persons relating to business or governmental affairs

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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 a UETA provides agreement cannot be in standard form contract, unless
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• a separate and optional agreement, or • standard form contract is itself an electronic record

Consumer Contracts - clear statement of:
affirmative consent to e-commerce a clear and conspicuous statement of the right to a paper transaction a the right to withdraw consent a the hardware and software required to access the record
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Evidentiary Rules
May not be excluded merely because it is in an electronic medium a May be excluded for many other reasons!
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Evidence Generally
Must be relevant a Have adequate foundation a Not be hearsay
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Relevant Evidence
Means evidence having a tendency to make the existence of a fact that is of consequence more or less probable a All relevant evidence is admissible, except as otherwise provided by law
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Adequate Foundation
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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 A contract generally is not hearsay a Most other records may be
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Hearsay Exception for Business Records
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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
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Do NOT require a Digital Signature
• Digital Signature is a method of signing an electronic document to insure integrity and usually uses cryptography

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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 a Proof of “intent” often a challenge in law
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UETA Provision re Attribution
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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.)
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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
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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
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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

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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
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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

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An electronic record that meets these requirements satisfies the requirement that an “original” be kept

Rule 1 Regarding Error
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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
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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
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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” a Authorize “electronic agents” a Establish “mailbox” rules a Authorize Electronic Notarization
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• How?