DIGITAL LEGAL DOCUMENTS: Digital Documents as Evidence in a Trial R. David Whitaker Partner david.whitaker@dlapiper.com +1 312 368 2199 This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

eSignature legal framework UETA - state solution ESIGN - federal solution Both laws act as overlay statutes Authorize replacing writings with electronic records Authorize replacing ink signatures with electronic signatures Require affirmative opt-in by parties The outliers New York, Illinois, Washington The really “out there” outlier – California Preemption Global framework Simple, advanced and qualified

The five pillars A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. 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. If a law requires the preservation or production of an “original,” the “original” requirement is satisfied by an electronic record. Electronic records can satisfy writing and original requirements so long as the electronic record: Accurately reflects the information in the record to be produced after it was first generated in its final form, and Remains accessible for later reference.

Enforceability and Admission into Evidence The UETA and ESIGN establish baseline rules for the enforceability of electronic records and their admission into evidence: Any requirement to preserve or produce an “original” record is satisfied by any electronic record of the information in the record to be produced, so long as the electronic record: Accurately reflects the information in the record to be produced after it was first generated in its final form, and Remains accessible for later reference. Evidence of a record may not be excluded solely because it is in electronic form.

Enforceability and Admission into Evidence The Federal Rules of Evidence and the Uniform Rules of Evidence contain identical provisions that, taken together, address the admissibility of electronic business records: The “Business Record” Rule, and The “Best Evidence” Rule.

Enforceability and Admission into Evidence The Business Record Exception to the Hearsay Rule Business records of regularly conducted activity are admissible in evidence if: The record is made in the ordinary course of business, Is made as part of the business’s regular practices, and Is creates at or near the time the events occurred by a person with knowledge of the events. Exception: Not admissible if the source of information or other circumstances indicate the record is not trustworthy. Note that audit logs and audit trails can be business records. The Best Evidence Rule Any printout of a computer record is an “original” for purposes of admission into evidence. Some courts believe the Best Evidence Rule doesn’t apply to electronic records at all, if the electronic record was not converted from a paper original.

Enforceability and Admission into Evidence – How It Works General Guidance Lorraine v. Markel American Ins. Co. In Re Vee Vinhnee Illustrative Cases Adams v Quicksilver, Inc. Gomez v. Metro Nissan Bar-Ayal v. Time Warner

Enforceability and Admission into Evidence -- How it Works The primary authenticity issue as identified by the court in In Re Vee Vinhnee, 336 B.R. 437 (9th Cir. BAP (Cal.) 2005), focuses on: . . . what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the records that originally was created . . . . Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that was originally created. The court focused on the preservation of the record and noted that for electronically stored information: [t]he logical questions extend beyond the identification of the particular computer equipment and programs used. The entity’s policies and procedures for the use of the equipment, database, and programs are important. How access to the pertinent database is controlled and, separately, how access to the specific program is controlled are important questions. How changes in the database are logged or recorded, as well as the structure and implementation of backup systems and audit procedures for assuring the continuing integrity of the database, are pertinent to the question of whether the records have been changed since their creation.

Enforceability and Admission into Evidence– Preserving Records and Positioning for Dispute Resolution Record Life Cycle Generate Deliver Store Manage Destroy Primary Record Categories Boilerplate Docs Transaction-specific Docs Audit Trails for Enrollment, Delivery/Signing Screen Shots & Process Flows Secure and Consistent Record Management Access Controls Quality & Integrity Controls Search and Report Capabilities Record Destruction Business Continuity Key Systems Issues Record Management Responsibility Secure Communication Record Management Audit Trails & Reports Company Policies and Guidelines

Enforceability and Admission into Evidence– Preserving Records and Positioning for Dispute Resolution Preserving evidence of data integrity, screen shots and process flows is essential. Design document management systems with system and record protections in mind (such as developing backup procedures, audit logs and encryption methods to enable the demonstration that the records have not been tampered with, data deterioration procedures, system security safeguards etc). Document and preserve program processes, screen shots, and versions of documents. Create policies and procedures for the creation and maintenance of electronic records. Document that the policies and procedures were followed (who did what when as a general matter). Audit document management for quality as part of ongoing continuous improvement process.

Enforceability and Admission into Evidence Rule 901 Rule 901 is the basis for the admission of some electronic records into evidence. Requires the testimony of either an employee with actual knowledge or an expert witness. Laying the foundation for admission can be cumbersome and expensive. Some companies are now hiring employees as records managers whose primary job responsibilities include testifying as a witness at trial. Constitutes a potential barrier to adoption. Courts sometimes require expert testimony concerning the integrity of the system housing an electronic record before permitting it to be admitted into evidence.

Enforceability and Admission into Evidence Rule 902 Certification The Rules of Evidence permit the creation of “self-authenticating” business records, so as to avoid the need for presentation of extrinsic evidence as a precondition to admissibility. Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007) -- “[Rule 902(11) certification] is extremely useful because it affords a means of authenticating business records under [the Business Records exception to the Hearsay Rule] without the need for a witness to testify in person at trial.”

Enforceability and Admission into Evidence Section 902 Certification The original or a duplicate of a domestic record of regularly conducted activity is admissible if accompanied by a written declaration of its custodian or other qualified person certifying that the record was: Made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; Kept in the course of the regularly conducted activity; and Made by the regularly conducted activity as a regular practice.

Enforceability and Admission into Evidence Section 902 Certification A party intending to offer a record into evidence under Section 902 must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Sample Section 902 Certificate

Questions? R. David Whitaker Partner +1 312 368 2199 david.whitaker@dlapiper.com