Legal defensibility of e-signatures tested in mock trial


The legal defensibility of electronic signatures was tested and analyzed during a two-hour demonstration trial, sponsored by the law firm of Lord, Bissell & Brook LLP, DocuSign, Georgia State Department of Risk Management and Insurance, Georgia State University College of Law and Insurance Journal and held at the Georgia State University Urban Life Auditorium.

Using an electronically signed life insurance application as the test case, the mock trial included testimony detailing the examination of the underlying technology used to ensure the security and auditability of e-signatures. The DocuSign Express web-based e-signature service was used as the technology to sign the document.

Key results and observations from the trial include:
  • Electronically signed documents are subject to substantially the same laws of evidence in a courtroom as a paper documents.
  • Using a third-party vendor for e-signature services helps create an "independent chain of custody" that can strengthen defensibility.
  • Using an electronic signing process may actually create additional legal defenses over traditional paper processes because the original document is always controlled, and information is gathered in an 'audit trail' which provides additional information about the signing process identifying the persons who sign and access the e-record and the time and date thereof, etc.
  • E-signature technology has evolved in the past few years, and now can more easily fit with existing business practices and support established contract law in order to be defensible and understandable in a court setting.

Key testimony in the trial centered on the storage of an electronically signed, encrypted and hashed insurance policy application, within a secure central data repository, in order to assure an unbroken audit trail. According to the testimony, "Once a document is placed into the system, it can be viewed, but the chances of it being modified are not likely because the system checks the 'fingerprint or hash' each time it is opened to be sure the hash values still add up. If the document were somehow changed, the values would not add up, and the signers would be notified."

In closing arguments, the possibility of encrypted hashed documents being tampered with was deemed to be extremely remote - especially compared to the relative ease by which paper documents can be altered.

The trial was followed by an in-depth question and answer session with a panel of leading legal and technology experts, which included Georgia Fulton County Superior Court Judge Wendy L. Shoob along with representatives from Lord Bissell and Brook, LLP, Georgia State University School of Law, Georgia State University Department of Risk Management and Insurance and DocuSign, Inc. In addition to the attendees in the auditorium, a national audience also viewed the trial and participated in the Q&A session via Web cast.

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