Gathering Evidence with E-Signatures

Mary Ellen Power, February 21, 2014

Any good e-signature solution should ensure your organization is able to gather the evidence it needs from its e-signed transactions to avoid disputes or stand up in court, if necessary. Ensuring a strong evidential foundation using e-signatures hinges on choosing an e-signature solution that captures the following types of evidence (but don't just take our word for it, check out some of the recent case law demonstrating how e-signatures have stood up in court).

The take-away from these cases and others is that if the process is clear to the signer, and an organization can prove that the customer knowingly consented to the terms and conditions of the agreement, the courts will enforce the electronic transaction. With that in mind, below are ways an e-signature solution should help an organization collect the necessary evidence to avoid disputes or stand up in court.

Document evidence

Document-level evidence is at the heart of any electronically signed transaction. It addresses the basic requirements outlined in the E-SIGN Act, which defines an electronic signature as "an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign a record". Based on this definition, an e-signature can be broken down into the following components:

  • Method of signing (click-to-sign, hand-scripted signature, voice signature, etc.)
  • User authentication (the e-signature provides evidence of the identity of the signer)
  • Intent (the customer applied their signature with the intent to sign)
  • Document authentication (the signature and document are tamper-evident)

Process evidence

Process evidence takes evidence a step further and provides context for how an electronic record was presented, reviewed and signed. Most contract- and agreement-related disputes don't come down to whether or not a document was signed but rather whether the signer understood what he or she was signing. Process evidence records all the elements of a transaction exactly as they appeared to the signer. This not only means recording which screens the individual looked at during the signature process and how long they spent on each one. This means that an organization can tell if a user took a legitimate amount of time to read and understand a contract.

Process design

The most important aspect of evidence-gathering starts even before an organization takes its customer transactions online. Designing the right e-sign process requires having enforceability and admissibility in mind. Having a well-designed process supported by the right technology reduces litigation and overall risk, while also generating admissible and credible evidence. What's more, the right process will help make the evidence easy to understand.

If you're interested in finding out more, here are resources to help:

Electronic Signatures in Court
How to Reduce Legal Risk with Electronic Evidence
Infographic: Why E-Signature Evidence Matters