There’s More to (Electronic) Signatures
Published July 13, 2021
As the world continues to rely upon electronic documents and signatures, as especially evidenced this past year during the pandemic, ensuring valid signatures is a topic that should not be forgotten. Disputes of whether a document was actually signed are not unusual. In a recent decision, Fabian v. Renovate America, Inc., 42 Cal.App.5th 1062 (4th Dist. 2019), a motion to compel arbitration was ultimately denied as the electronic initials and signatures on the agreement were not properly authenticated. Here, Ms. Fabian denied having ever received or signed the agreement, electronically or otherwise. Renovate relied solely on the fact that because DocuSign was used, the signatures were legally binding as DocuSign is a company used to electronically sign documents in compliance with the U.S. Electronic Signature in Global and National Commerce Act (ESIGN) and generally has procedures in place to comply with the Uniform Electronic Transactions Act (UETA). However, the appellate court emphasized that Renovate failed to offer any evidence regarding the process used to verify via DocuSign Ms. Fabian’s electronic signature, including the following: who sent the agreement; how the agreement was sent; how the electronic signature was placed on the agreement; who received the signed agreement; how the signed agreement was returned to Renovate; and how the signatory’s identification was verified as the person who actually signed the contract. Without these specific details, the court found the electronic signatures were not properly authenticated and denied the motion to compel arbitration.
As seen in this case, mere reliance on the fact that DocuSign, a trusted company in many real estate and corporate transactions, was utilized is not, by itself, sufficient to authenticate electronic signatures. Although the use of electronic signatures remains common in many transactions, it is imperative to consider the evidentiary standards necessary to authenticate the signature. Failure to do so could lead to transactional documents being found ultimately unenforceable.