RE: Problems With Moving To Electronic Records?

A question that not only the metaphysicians among lawyers will be facing soon:

What does "an original" mean in fully electronic transactions with electronic
signatures? 

Take it a step further. E-SIGN and UETA clearly contemplate binding transactions
entered into by "electronic agents." What's the "original"?

Some have suggested that we will soon reach a point where digital information
can only be proven up with reference of the integrity of the document creation
and retention process. Since the popular figure is that 93% of business
documents are never printed or put into a paper form, these questions may need
answers sooner than many expect. 

Predictably, Jerry is several years ahead of the curve, attempting to answer
questions where mere mortals cannot even see the questions coming. One thing
that I've learned over the years is that when Jerry asks a question, I really
need to pay attention to it.

My starting point on these issues would be the Uniform Electronic Transactions
Act and E-SIGN, and the commentary about them. Without checking, there might
already be a specific answer in there, although whether the courts will take
that approach remains unclear. The intent of both acts (I don't know whether
UETA has now been enacted in every state) is clearly to avoid making legal
distinctions between electronic documents and paper documents solely on the
basis of form. When I was a bit younger, I co-wrote an article on UETA and
E-SIGN that might be a helpful backgrounder article. See
http://www.thompsoncoburn.com/pubs/CHF001.htm.

Dennis

Dennis M. Kennedy
The Dennis Kennedy Law Firm, LLC 
1276 Bridle Road
St. Louis, MO 63119
(314) 963-9798
dmk-zCcesvzgDd9m78FN9qvvowC/[email protected]
www.denniskennedy.com

A computer law practice emphasizing review and negotiation of technology
agreements, software licenses and e-commerce contracts.

Check out my blog: http://www.denniskennedy.com/blog/

"Helping business decision-makers who sign important technology agreements get a
good night's sleep"
-----Original Message-----
From: Glenn K. Garnes [mailto:[email protected]] 
Sent: Tuesday, July 13, 2004 9:08 AM
To: [email protected]
Subject: RE: [NetLawyers] Problems With Moving To Electronic Records?

Jerry,

Originals would almost always be necessary in fraud prosecutions because the
authenticity of the original would be in question, and that would normally
require production of the original.

Normally, you only get into fraud issues where there is an identity theft
situation, and you'd know you have one of those because the thief normally
defaults after the first payment becomes due, which means the files wouldn't be
sitting around for years before you'd be archiving them.  

Depending on what other fraud issues you may see arising, you might want to
retain files on loan amounts above a certain figure, and simply have them sent
to off-premise storage.  That way you can keep the PDF for litigation purposes,
and only retrieve the originals if absolutely needed.

Warmest regards,
 
 
Glenn K. Garnes
(301) 776-1490 Phone
(202) 318-0341  Fax
http://www.greetingcardwiz.com



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