Electronic Filing and the Demise of the Original Signature
These innovations create the possibility for significant change in legal practice and procedure, and these changes may induce a form of legal culture shock if not appropriately managed. One of the areas causing significant controversy is the demise of court files containing documents with original signatures. CM/ECF has the potential for creating a legal environment in which virtual documents will entirely replace paper files. Since it is possible, some courts have embraced the opportunity. The paperless court concept is quickly becoming an operative reality in those courts. In others, an effort is being made to retain documents with original signatures without sacrificing most advantages of paperless file management.
In traditional legal practice, signatures perform two basic functions. The most obvious is that the signature authenticates the document, i.e., it creates a verifiable link between a document and the filing party. The other function is content verification. In this regard, the signature acts as a certification ensuring that the documents have been reviewed and that the content meets certain standards. The most obvious is that the factual allegations made are true and correct. Federal Rule of Bankruptcy 9011(a) provides that "every petition, pleading, written motion or other paper...shall be signed by an attorney or by the filing party if not represented." Petitions, lists, schedules, statements and amendments thereto must be verified.1 In addition, the signing, filing or submitting of pleadings and motions act as a certification (inter alia) that a document has been reviewed by the party, that there is some support for the factual allegations and positions taken and that the document has not been presented for an improper purpose.2 Since contents of pleadings found to violate these standards may subject the filing party to sanctions,3 there is a need to clearly identify the person who signed or presented the documents for filing.
It is becoming more common for courts to accept paper pleadings with no signature or with a facsimile signature without a corresponding requirement that the original document be later filed.
This is more than a theoretical problem. In the real world, fraud does occur, and modern technology makes it relatively easy to replicate a facsimile signature and use it to create fraudulent documents.4 In addition, debtors have been known to allege that their signatures on the petition, schedules or other documents have been forged.5 As a result, many bankruptcy courts will not accept pleadings for filing without original signatures despite the language in FRBP 9011(a), which suggests that unsigned pleadings should be accepted and then stricken if the document is not promptly corrected.6 In a survey recently done of bankruptcy clerks (hereinafter "2003 survey"), 15 of the 37 clerks indicated that their courts do not accept pleadings without original signatures. Those courts that require original signatures almost certainly do so because of the belief that they provide greater evidentiary value should signature forgery be suspected or alleged.
There is clearly concern that in a prosecution involving alleged bankruptcy fraud, the attorney may be required to introduce an original document to meet the requirements of the "best evidence" rule.7 There may also be concern that original signatures will provide a better basis for handwriting analysis should expert opinion be needed to establish the authenticity of a signature. It is not at all clear that imaged documents will not suffice in such prosecutions, but if these concerns are valid, they are not being articulated on a national level by the Department of Justice, the agency most likely to have an interest in such matters. In the 2003 survey, only two of the responding courts indicated that there was any active opposition to proposed CM/ECF rules from either the Office of the U.S. Trustee or the U.S. Attorney for their districts. It is clear from the 2003 survey, however, that some courts have adopted rules requiring the retention of some paper documents because of concerns expressed by these agencies.
It should be noted that the problem of forged signatures is very unlikely to involve documents signed and filed electronically through CM/ECF. A registered user is issued a specific login and password that clearly identifies the user when documents are electronically filed. CM/ECF does not depend on digital signatures.8 It is contemplated that the password of a registered user may be used by support staff or associates of the user. Therefore, most courts are promulgating rules stating that use of the login and password will constitute the signature of the user, even if another authorized person files a document.9 This seems to follow case law that has held attorneys responsible for documents filed by associates or subordinates in the attorney's name.10 There is almost no possibility that a document could be altered or changed once filed. Once a document is submitted, the CM/ECF application provides non-court users no access to alter that document. CM/ECF incorporates the use of a hash number to encrypt each PDF file transmitted to the court. Once filed, programs check the files continually to ensure that no changes are made to the document without authorization.
Therefore, problems involving document authentication are limited to faxed filings or electronically filed documents signed by parties other than the registered user. In these areas, court practice is diverse. It is becoming more common for courts to accept paper pleadings with no signature or with a facsimile signature without a corresponding requirement that the original document be later filed. But it is likely that in such instances the court has a rule requiring that the filing party retain the original document for a period of time.11
This diversity of practice results from the need to balance the very rare instances in which signature forgery is alleged with the great administrative benefits of the paperless court. But many bankruptcy courts are devising strategies to accommodate both interests. The regulations needed to adapt the courts to the new technologies are not occurring at the national level. In 1996, FRBP 5005(a) was amended to permit courts to permit documents to be "filed, signed or verified by electronic means" provided that they are consistent with Administrative Office of the U.S. Courts (AOUSC)-defined technical standards.12 No standards have been issued, and each court has been adopting rules and policies at a local level.
These are some of the more commonly adopted strategies to deal with the perceived need to retain some documents with original signatures:
1. Permit the filing of a document with either no signature or a facsimile signature but only as a temporary measure. Many bankruptcy courts will accept documents faxed or electronically filed without original signatures, but require that the originally signed document be filed within a specified period of time.13 Some courts intend to retain selected originally signed documents as part of the record indefinitely, and others will image and discard the documents when received.
2. Require that the debtor file a declaration with original signatures which verifies documents as required by FRBP 1008. It is common for bankruptcy courts to require that both the debtor and the attorney for the debtor sign and file a declaration with original signatures that acts to verify the documents pursuant to FRBP 1008.14 This affidavit may be retained by the court as part of a permanent record, but some courts intend to image and then discard the declaration. In addition, many courts are requiring that CM/ECF users certify that a petition or other document transmitted to the court electronically for filing is properly signed and in the possession of the filing party when filed.15
3. Retain documents with original signatures, but shift the burden of storing them. Many courts require CM/ECF users to sign agreements that state that the user will only transmit documents that are appropriately signed. Although there is some feeling that this is an impermissible delegation of the clerk's duty to maintain the official record of the court, many courts are adopting this requirement. There is a wide range in the amount of time that attorneys are required to retain the records. In the 2003 survey, the majority of courts are setting retention periods of four to five years, with a smaller number using one to two years. A few courts do not state a time that would indicate that indefinite retention is required.
4. Rely on the record of §341 meeting record to provide the evidentiary link. It seems likely that most cases of bankruptcy fraud involve false statements made by debtors when filing the schedules and statement of affairs. There are indications that some U.S. Trustees or the assistants in some districts are modifying §341 procedures to ensure that the debtors acknowledge on the record that petitions and schedules filed electronically were reviewed by the debtors and that the information is accurate. It also appears that some offices may be asking the debtors to originally sign copies of the schedules at the first meeting, which are then retained by the Office of the U.S. Trustee.
Whether these strategies will continue to be considered necessary will almost certainly depend on case law evolving in the next few years. Clearly, if bankruptcy fraud cases are lost because of the lack of originally-signed documents, courts will ensure that the documents are available. On the other hand, if the prosecutors and courts find that cases can be effectively presented with imaged and virtual documents, then the movement toward totally paperless courts will continue and strengthen.
5 As a clerk of court, I have spoken on several occasions to debtors who have claimed that they did not file a bankruptcy because signatures on petitions were forged either by a spouse or by their attorney. That these matters were never pursued may have been due to the fact that the documents with an original signature could be presented for examination. Return to article
6 In the survey of clerks, some clerks indicated that they will accept pleadings without original signatures and that the burden is on the parties to object or ask for correction. Other courts strike such pleadings sua sponte. Return to article
7 See Federal Rule of Evidence 1002. Although this rule requires that an original writing is required to prove the contents of the writing, FRE 1003 goes on to state that a "duplicate is admissible to the same extent as an original unless (1) genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." See, also, Equitable Life Assurance Society v. Starr, 241 Neb. 609, 489 N.W. 2nd 857(1992). Return to article
10 See Jones v. Halvorson-Berg, 69 Wash.App. 117, 847 P.2d 945 (1993). Other courts have found that if an attorney has not personally signed a document, he is not subject to Rule 11 sanctions. Giebelhaus v. Spindrift Yachts, 938 F.2d 962 (1991). It seems likely that specific court rules and agreements signed by CM/ECF users that make them responsible for filings by associates will make it easier for courts to apply sanctions in similar cases in the future. Return to article
11 In the 2003 survey, a large majority of courts still require that petitions, schedules and pleadings be filed with original signatures or that originals be later filed. Nine of 37 responding courts accept some faxed documents for immediate filing and do not require the original documents to be filed. In some, if not all, of these courts, the faxing party is required to maintain the original document and produce it on demand. Return to article
13 Since the login and password of an attorney constitute the attorney's signature to a document for an electronic filing in CM/ECF, this is not an issue for most pleadings. The problem arises if a document is filed with signatures other than that of the attorney. Return to article