Yes Virginia, You Can Prove an Electronic Signature!
Surprisingly, the question of how to prove something was signed electronically arises relatively rarely. In Perry v. Ad Astra Recovery Services, Inc.,
the U.S. District Court for the Eastern District of Missouri tackled the issue, finding that the plaintiff signed a loan agreement based on the defendant's affidavit about the execution process.
Back in the late 1990's I had the privilege of hanging around in the ABA's Business Law Section when the Uniform Electronic Transactions Act (UETA) and the Federal variation, E-SIGN, were being developed. At the time, many of the key players in the emerging electronic and digital signatures movement were active in the Business Law Section and they often use the organization's meetings to explore and discuss ideas - away from the sometimes politically charged atmosphere of NCCUSL meetings. It was a great time to be a fly on the wall.
As a bankruptcy professional, the one thing that struck me about electronic signatures was the proof problem. In other words, it was all well and good to have someone "sign" something "electronically," but when court proceedings came into the picture proving that someone had signed something was clearly going to be be more complicated than just handing the judge a piece of paper and saying "see, the signature is right there." The issue was illustrated by a 2005 decision, In re Vinhee
, which laid out in great detail the complex steps needed to prove an electronic business record. Way beyond just handing the Judge a piece of paper.
In Perry, the defendant sought to enforce arbitration provisions in a loan agreement that the plaintiff had signed online using a click-through mechanism. Although the plaintiff denied having signed the agreement, the defendant provided, through affidavits, evidence that to obtain a loan a customer had to go through a series of steps as part of the online application process, including checking boxes to indicate assent to the various contracts and policies involved. Citing to the UETA, the court held that these processes were sufficient to create an electronic signature and the evidence showing that the processes must have been followed in order for the plaintiff to obtain her loan, sufficient to prove her "signature."