CLE Webinar | eSignature: An Overview of Legal Validity and Case LawWinter 2017

Damon Mino, Director, Legal IndustryRachel Stoermer, Senior Corporate Counsel

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DocuSign is the fastest most secure way to make every agreement and approval digital, so you can keep life and business moving forward.

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Your Hosts

Rachel StoermerSenior Corporate Counsel, DocuSign • Responsible for technology transactions

and electronic signature legality and adoption

• JD, University of Washington• Masters Degree, Public Affairs• Microsoft, aQuantive, Inc., DocuSign

Damon MiñoDocuSign Director Legal Industry Vertical• Responsible for DocuSign’s Solution for

Law Firms• JD, Northwestern University School of Law• Formerly In-House IP Licensing Attorney• Ariba, 3-PAR, LinkedIn, DocuSign

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Contents

• What is an eSignature

• eSignature Law Overview

• US Statutory Analysis• International Landscape• Practical Considerations

• What do Courts Say?

• DocuSign as an Example• Case Law & Concepts

• Conclusion

• ResourcesDOCUSIGN INTERNAL

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Electronic Signatures are Everywhere and Come in Many Forms

An electronic signature is an “electronic sound, symbol or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.”

-15 USC 7006 (ESIGN Act)

Electronic signatures do not need to look like a handwritten signature!

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Legal Foundation for Electronic Contracts and Signatures

Common Law: contract formation based on offer, acceptance, consideration.

Legislation • United States (state and federal)

‒ UETA ‒ ESIGN

• International‒ eIDAS (EU Regulation No 910/2014)‒ Electronic Transactions Act (UK)‒ Uniform Electronic Commerce Act (Canada)‒ 1996 UNCITRAL Model Law on Electronic

Commerce‒ 60+ countries have laws enabling electronic

signatures

US Framework

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US Framework

• UETA: Uniform Electronic Transactions Act ‒ Drafted by Uniform Law Commission in 1999‒ Response to states passing inconsistent laws ‒ Amends state laws that require “writing” or “signature”‒ Quick, yet inconsistent adoption‒ Now adopted in 47 states + DC, Puerto Rico, Virgin Islands

‒ NY, WA, and IL also have laws permitting electronic signature that aren’t based on UETA

• ESIGN: Electronic Signatures in Global and National Commerce Act ‒ Passed by Congress in 2000‒ Federal version of UETA‒ Introduced consumer protection‒ Preempted nonconforming state laws

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General Rules of Validity in US

Central concepts of UETA, ESIGN, and other state laws:

A signature, contract, or other record related to any transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form.

1. No specific technology must be used2. Permissive rather than proscriptive3. National application and preemption

International Landscape

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Brief History of the Electronic Signature: International Stage

Late 1990sInternational push towards electronic signature legislation

TodayeIDAS

1998 - Late 2000sDevelopment of a number of country laws to recognize and adopt e-signatures including:• UNCITRAL MLEC, 1996 (U.N.)• European Directive 1999/93/EC (EU) • Electronic Transactions Act 1999 (AUS)• Electronic Communications Act 2000 (UK)• UNCITRAL MLES, 2001 (U.N.)• Law of the People’s Republic of China on

Electronic Signatures, 2005 (CHN)

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International Landscape: Common Law Countries

Common law jurisdictions follow a “minimalist” model where electronic signatures hold the same legal weight as handwritten signatures

Examples of common law countries include:

• US• Canada• UK• Australia

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International Landscape: Civil Law Countries

Civil law countries follow a multi-tiered approach modeled on the 1996 UNCITRAL Model Law on Electronic Commerce:

1. “Simple” electronic signature: admissible as evidence, sufficient for commercial transactions

2. “Qualified Electronic Signature” (QES): Evidentiary presumption and required for certain purposes

Examples of civil law countries:• Most of Europe• Most of Latin America• Most of Asia

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More on Electronic Signature vs. Digital Signature

An electronic signature is any electronic means of signing.

Digital signatures are uncommon in the United States, but are the

industry standard in some civil law jurisdictions and regulated

businesses.

A digital signature is a specific type of electronic signature

that requires a certain encryption scheme; a public

and private key pair.

Traditionally this has required smartcards or other personal hardware technology, but recent legislation like

eIDAS now recognizes cloud-based solutions.

Digital Signature

Electronic Signature

eIDAS paves the way for a unified EU eSignature market

Legitimizes Cloud-based signatures by removing smartcard requirements

Enforces Pan-EU Interoperability (July 1st, 2016)

Mandatory Adoption by all Member States

Practical Considerations

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Practical Issues using Electronic Signature

Legal Sufficiency vs. Enforceability• UETA and ESIGN answer the question “is it a signature?”

• They do not answer the question “is it your signature?”‒ Attribution will be a matter of fact, just as it is with a

wet signature

Evidence• Admissible under FRE, but subject to the same rules

‒ Lorraine v. Markel American Insurance Company, 241 FRD 534 (D. Md. 2007)

• Electronic process often provides more evidence than a paper process‒ Time and Date stamp, IP address, email access, etc.

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Considerations in Implementing Electronic Signature

Are my documents excluded from ESIGN and UETA?• Can they be electronically

signed/recorded under some other rule or statute?‒ Probate law (electronic wills permitted

in Ohio, little case law elsewhere)‒ Court rules‒ Portions of the UCC

How will our process address: • ESIGN Requirements

‒ Consumer Consent (when it applies)‒ Notice and Delivery‒ Recipient’s right to retain copies

What are Courts Saying?DocuSign as an Example

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DocuSign As an Example

100M+Users

900K DocumentsSigned Per Day

Valid in Common Law and Civil Law jurisdiction

188 Countries43 Languages

Over 12+ Years11 Court Cases

“Because the documents were signed electronically through a company called

DocuSign, plaintiffs were able to show the precise moments that these documents were created, electronically delivered and signed.”

Sollner v. Linton (2014 Cal. Super. Ct. July 2014)

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The Keys to Enforceability

Identity

Doc Security

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Identity

2. Audit Trail1. Signer Identity

ID Check

Electronic Notary

Access Code

SMS

Phone

Digital Cert

Primary Multifactor add-ons

Email Address

Federated/SSO

DocuSign Account

KBA or In-Person

What are Courts Saying?Case Law & Concepts

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Sufficiency of Electronic Signatures and Records

Barwick v. GEICO (2011 Ark. 128)Arkansas Supreme Court rejected argument that electronic waiver of medical benefits was not a “signed writing”, citing the plain language of the Arkansas UETA.

Electronic Signatures meet Statute of Frauds writing requirements• Shattuck v. Klotzbach, 14 Mass. L. Rep. 360 (Super. Ct.,

Mass., December 11, 2001); • Rosenfeld v. Zerneck, 4 Misc. 3d 193, 776 N.Y.S.2d 458

(Sup. Ct., Kings Co. 2004) (but see Vista Developers Corp. v. VFP Realty LLC, 17 Misc. 3d 914, 847 N.Y.S.2d 416 (Sup. Ct., Queens Co. 2007) – Signed emails could be used to prove the existence of a real estate contract.

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eCommerce: Clickwrap and Browsewrap Agreements

Fteja v. Facebook Online terms held to be enforceable where:• Terms presented in hyperlink immediately below “Sign Up” button• Sign Up process involved multiple steps

The fact that Facebook did not force Fteja to review the terms was considered irrelevant

Jerez v. JD Closeouts Online terms held to be unenforceable where:• Terms of Sale were not directly referenced in the order process• Terms were presented only on the “about us” page

The court determined that the contract terms weren’t “reasonably communicated”

As a general rule, clickwrap, where the user takes some affirmative action, and has reasonable notice of the contract terms, has been enforced.

Clickwrap

Browsewrap, where the terms are available, but no action is required to accept or acknowledge them, are much less likely to be enforced.

Browsewrap

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Record IntegrityAdams v. Quicksilver. The vendor’s system did not protect the signed record against post-execution alteration, and the post-execution audit trail maintained by the vendor showed that two Quicksilver employees had accessed the record after it was first saved and submitted for storage.

AttributionZulkiewski v. General American Life. Under UETA (Michigan), an electronic signature may be attributed to a person by “any reasonable means”. Here, General American used a combination of email and personal information.

Idle conjecture about impersonation is not enough to overcome reasonable facts supporting attribution.

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Proof of Process vs. Physical Document

Person v. Google, Inc. The court relied on proof of process as opposed to proof by the document itself to support defense.

Bar-Ayal v. Time Warner Cable Inc.Clearly presented agreements will be enforced unless unconscionable. Court accepted a re-enactment of the agreement formation process (where the plaintiff had to click on the Accept button eight times) in order to refute the plaintiff’s claim that he never saw the agreement.

Hook v. InteliusEvidence of process alone is sufficient to support a finding that the process used is standard in the industry and produces an accurate result.

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Recent Cases

Ruiz v. Moss Bros (CA Court of Appeal, December 23, 2014)• The Court refused to enforce an employer’s arbitration agreement, finding that

the employer did not present sufficient evidence that the electronic signature on the arbitration agreement was “the act” of the employee

• The decision reflected that authentication must be proven (just as it must with a paper signature) but states that the burden to do so is “not great”

J.B.B. Investment Partners v. Fair (CA Court of Appeal, December 30, 2014)• The Court held that the defendant’s typed name in an email did not constitute

an electronic signature under UETA, because there was no demonstration that he intended to enter an agreement electronically

• The Court acknowledged that consent to do business electronically needn’t be explicit, but it must be proved nonetheless

The key lesson from these two cases is that the formalities matter. Failure to keep adequate records or obtain proper consent can impact enforceability

Conclusion

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Benefits of Electronic Signature

• Documents can be signed remotely

• Counterparts can be sent simultaneously, but tracked in a single work stream

• Electronic documents can include required fields, ensuring that key information is filled in prior to completion

• Real time information on status of documents

• Reduced cost and hassle by eliminating paper, mail, couriers, etc.‒ Improved client experience‒ Less non-billable administrative time

Resources

eSignature Legality Guidewww.docusign.com/legalityguide

Questions?

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FAQ (these are the ones we hear most often from lawyers)

What about notarization?• E-notary is permitted in the majority of states, but there has been very little adoption• Only a few states allows remote notary – all other states still require physical presence• Notarization is often used when not legally required. Electronic alternatives exist that may serve the same

function if notary is used for policy rather than legal reasons

Can agreements be backdated? Or signed in advance?• Most eSignature solutions record the actual time a signature event occurs. Free form fields may be used

to enter another date, but the audit trail will reflect the real time of signature• Solutions like “signature page escrow” can be used to collect signatures in advance

How can we ensure the signer actually read the document? • How do you do it now? No one can be forced to read a document, but you can increase the odds (or

create better evidence) with practices like requiring initials next to key terms• Make sure it is at least possible to read them – for example, if documents are attached to an email, make

sure the recipient has the right software to open them.