Question: It seems that our association is in trouble in terms of electronic documentation.
First, it was dismissed in the proceedings and received a document summons, which prompted our association lawyers to have the board collect all electronic correspondence within the specified time.
The problem is that some directors have removed the documents from our computers, sold their equipment and moved out of the state.
In addition, one of the departing directors has established a mandatory rule requiring all homeowners to sign their communications digitally, otherwise the board will not accept the owner's email --
Even in an emergency.
Are electronic signatures legally binding?
Is there a difference between electronic signature and digital signature?
How do you know who is signing with these signatures?
A: litigation is like poker;
You have to play those cards.
You know, you can't change the past at all.
Your duty to respond to the summons is to present all the relevant non-
Privileged documents kept or controlled by you, your lawyer and third party-party agents.
There may be nothing you can do if the document no longer exists or is not available.
The party seeking discovery may challenge your association on this matter and may seek discovery from the late directors to see if they have kept any records.
The bigger question, however, is when and why the record was deleted.
It is a big deal to destroy, change, or fail to save the evidence called "spoliation.
Depending on the degree of guilt (if any) of the association and prejudice against the other party, the court may impose monetary sanctions to prevent the association from submitting certain evidence, to terminate the association's case altogether, or, worse, the verdict was given.
In a jury trial, the court may direct the jury to assume that the missing evidence is against the association.
If this is not bad enough, extortion is also a criminal offence under Article 135 of the criminal code.
Given the risks that may arise from not making a document, your association may want to consult a computer forensics specialist to see if the document can be retrieved from the computer. Unlike the low-
Technology, but high efficiency, Shredder, deleted computer files are not always unsearchable, sometimes can be found on hard disk, backup tapes can be found on the Internet
Based on storage and backup systems such as iCloud, Google Drive, or Dropbox.
If this proves unsuccessful, then the association may wish to seek the cooperation of the departing director to obtain the documents.
It is wise for them to cooperate because they may be liable to HOA for failing to keep records.
As for electronic signatures, it is not possible for a director to unilaterally implement all communications.
The association acts through its board of directors.
Even if this requirement is authorized by the board of directors, the directors have a fiduciary duty to act in the best interests of the association and arbitrarily ignore the significant email communication of the owner as inconsistent with this obligation.
But this is not to say that electronic signatures are not useful tools.
It is clear that the electronic signature is any electronic symbol used to sign the document.
According to Federal Electronics
The signing law and the unified electronic transaction law (
In addition to Illinois, New York and Washington, each state adopts)
, The parties to the agreement must express their intention and agree to implement the agreement electronically, which usually takes the form of a separate letter or language in which such intention is indicated in the agreement.
However, like any signature, email
The signature can be challenged by a party claiming to be not his or her signature or not agreeing.
This is the source of digital signatures.
They are generated by software applications and provide greater assurance to the person signing the document and to the person receiving it.
Last year, in order to eliminate the confusion between electronic signatures and digital signatures, California passed Parliament Bill 2296, clarifying the criteria for digital signatures.
Under the Act, a digital signature uses software to generate a signature that is unique to the person using the signature and must be able to verify (
For example, by collecting the email and internet protocol address of the signer)
And link to the executed document in such a way that the digital signature will be invalid if it is changed.
As one provider explains, digital signatures are similar to "electronic fingerprints" and create an encoded digital message that securely links the signer to the document being signed and verifies the document's
Valid contracts can be created using electronic signatures that do not meet the strict standards of digital signatures, however, by using digital signatures, the risk of challenging the party to the validity of the signature is greatly reduced.
Digital signatures are essentially equivalent to notaries on the Internet.
But no cool stamps.
Who's together, Bennett Kelly?
This column is written by lawyers and founders of the Internet Law Center of Santa Monica business law firm, which specializes in all aspects of Internet law.
Vanitzian is an arbitrator and mediator.
Send issue to JD, P Donie VanitzianO.
10490, Marina del Rey, CA 90295 ornoexit @ mindspring. com.