Is a printout of an electronically signed document necessary
to prove its execution? Not according to
the majority’s ruling in Berenson v. USA
Hockey, Inc., et al., 2013CA138 (Opinion by Judge Furman; Booras, J.,
concurs; Dailey, J., dissenting).
In Berenson, the
plaintiff sued the amateur hockey league after she was injured during a
game. The league moved for summary
judgment based upon its assertion that the plaintiff had agreed to the terms of
a liability waiver and release when she had registered on the USA Hockey
website. The plaintiff did not dispute that she had completed the online
registration process for the year she was injured, but could not remember if
she had agreed to the terms of a release.
The league did not produce a copy of the electronically executed
agreement, but instead relied upon the affidavit of an employee which stated
that the plaintiff could not have completed the online registration process
without executing the page with the waiver and release, and that the plaintiff
had completed the registration process the year she was injured.
The trial court granted summary judgment and the plaintiff
appealed. The Colorado Court of Appeals
held that Colorado’s evidence rules did not require a printout of the agreement
in this circumstance. Instead, the
release could be proved by other evidence such as the affidavit.
The Court of Appeals analyzed the issue under Colorado’s
“best evidence” rule, C.R.E. 1002. The
best evidence rule is a rule of evidence which requires a person seeking to
prove the contents of a writing, recording or photograph to submit the
“original” writing, recording or photograph into evidence in the court
proceeding. With respect to data saved
on a computer, “original” means a printout or other output readable by sight, shown
to reflect the data accurately. C.R.E.
1001(3).
The Court reasoned that the best evidence rule did not
require submission of the printed agreement because the contents of the
agreement were not at issue, and the best evidence rule only applies when a
party seeks to prove the contents of the writing. The mere fact that a written
record has been made does not prevent a witness with personal knowledge from
testifying as to facts which have been memorialized in a written record. Thus, the employee’s affidavit containing the
fact that the plaintiff could not register through the website without agreeing
to the waiver and release was sufficient to show that the claims had been
released.
The dissent argues that the contents of the writing were at
issue in the case because it mattered where the plaintiff initialed the
document and thus the initials were part of the document’s contents. The dissent noted that the distinction
between attempting to prove the contents of a writing and attempting to prove a
fact about a writing is often difficult to draw.
The opinion does not reference if or how the actual terms of
the release were proven.
You can read the Court’s opinion here:
Although not discussed in the opinion, Colorado’s electronic
signature laws are governed in part by the Uniform Electronic Transactions Act
(UETA), C.R.S. §24-71.3-101, et seq. enacted in Colorado in 2002. The UETA defines and electronic signature as:
“an electronic sound, symbol, or process attached to or logically associated
with a record and executed or adopted by a person with the intent to sign the
record.” C.R.S. §24-71.3-118(8). In this case, the affidavit may have served as
proof of the “process.”
A best practices guideline for electronic signatures, issued
by the Governor’s Office of Information and Technology in 2007, can be found
here: http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheadername1=Content-Disposition&blobheadername2=Content-Type&blobheadervalue1=inline%3B+filename%3D%22Colorado+Electronic+Signature+Guidelines+%28published+2007%29.pdf%22&blobheadervalue2=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251656636739&ssbinary=true
Lee Katherine
Goldstein is an appellate lawyer with the Denver law firm of Fairfield and
Woods, PC.
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