In a recent memorandum decision, Judge Robert S. Bardwil of the United States Bankruptcy Court for the Eastern District of California sanctioned a Sacramento attorney and ordered him to complete a local e-filing course because he did not maintain copies of filed documents that included the original “wet” signature. Instead, the attorney relied solely upon the popular DocuSign e-signing technology when submitting, among other things, a debtor’s petition, schedules and statements, statement of income, and verification of master address list.
Responding to a motion for sanctions from the Office of the United States Trustee arguing that the attorney’s practice violated the local bankruptcy rules, Judge Bardwil explained that, “[a]lthough DocuSign affixations and other software-generated electronic signatures may have a place in certain commercial and other transactions, they do not have a place as substitutes for wet signatures on a bankruptcy petition, schedules, statements, and other documents filed with the Court, and they do not comply with this Court’s local rules.”
The rules in question, Local Bankruptcy Rules 9004-1(c)(1)(C) and (D), generally provide that (i) use of an electronic signature constitutes the filer’s representation that an originally signed copy of the document exists and is in their possession, and (ii) the filer shall maintain that originally signed copy for a period of three years and produce it upon request of the Court, the United States Trustee, the United States Attorney, or any other party. As a result, the crux of the issue considered by Judge Bardwil was whether or not the DocuSign generated affixation was an electronic or original signature for purposes of the local bankruptcy rules.
Judge Bardwil rejected the attorney’s “strenuous mental gymnastics” arguing, largely based on intent, that a DocuSign signature is an original signature and dismissed the efficacy of a subsequent declaration submitted by the debtor stating that he had intended the electronic signature to be treated as his original signature. Judge Bardwil’s primary concern was the ease with which a purely electronic signature could be manipulated or forged and pointed to the situation where a debtor later argues that it never signed a particular document. Judge Bardwil reasoned that “[t]reating software-generated electronic signatures as original signatures would, as the [United States Trustee] contends, ‘increase the possibility of confusion and mischief in the signature process (especially where less scrupulous e-filers are involved)’ whereas distinguishing them helps to protect the integrity of the system.”
While some may dismiss this opinion as purely based on a particular jurisdiction’s local bankruptcy rules, it is an important reminder that different jurisdictions, and different judges within those jurisdictions, can have varying customs, rules and views despite widespread e-filing requirements and an increasingly electronic society.
For example, the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware provide that the electronic signature of a person on an electronically filed document constitutes the original signature of that person for purposes of the Federal Rules of Bankruptcy Procedure and the local rules. However, with respect to facsimile documents, the original signature must be maintained by the filing party for at least two days.
By contrast, the United States Bankruptcy Court for the Southern District of New York has adopted its Procedures for the Filing, Signing and Verification of Documents by Electronic Means. These procedures require that every petition, pleading, motion and other paper served or filed contain signatures in the format of either “/s/ Jane Doe” or “s/ Jane Doe.” The procedures also require the filer to maintain the originally executed document, presumably with a wet signature, for all “petitions, lists, schedules, statements, amendments, pleadings, affidavits, stipulations and other documents which must contain original signatures, documents requiring verification under Federal Rule of Bankruptcy Procedure 1008, and unsworn declarations under 28 U.S.C. § 1746” for the later of two years or the entry of a final order terminating the case or proceeding.
The United States Bankruptcy Court for the Northern District of Illinois, on the other hand, has adopted administrative procedures that distinguish between original non-attorney signatures and original attorney signatures. Generally, the original signature of a non-attorney is to be scanned and included in the filing. Doing so amounts to a representation by the filer that the signature was part of the original document. Under these procedures, once properly scanned and filed, the original signature need not be retained. Attorney signatures, by contrast, are required to be indicated using the “/s/” designation followed by the filer’s typed name. By using a password to make an electronic filing, the filer is deemed to affix their signature for all purposes.
The value of knowing and understanding these rules, and how they vary, cannot be understated. And remember, sometimes an original signature still means an original signature.