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DocuSign Not Permitted Absent Existence of the Document with a ‘Wet’ Signature

As a general rule, counsel must show the existence of a document with a ‘wet’ signature to use an electronically signed version in court.


Given the ease with which an electronic signature can be forged, an affidavit is not admissible if the affiant’s signature was affixed by DocuSign and the affidavit with an original “wet” signature was not in the possession of a registered PACER user, according to Chief Bankruptcy Judge Frederick E. Clement of Sacramento, Calif.

In an adversary proceeding, the plaintiff submitted eight affidavits. All were signed electronically by use of DocuSign. In his unpublished opinion on February 28, Judge Clement sustained the defendant’s objection to the admission of the affidavits as the affiants’ direct testimony.

Was the decision a rejection of technology and the common use of DocuSign, or was it based on statute and rules?

Judge Clement cited 28 U.S.C. § 1746, which governs the use of unsworn declarations. Whenever the law requires a sworn declaration or affidavit, the section allows the submission of an unsworn declaration “which is subscribed by him, as true under penalty of perjury.” [Emphasis added.]

In view of the words “subscribed by him,” Judge Clement said, “Unsigned affidavits have no evidentiary value,” citing two decisions from the Sixth Circuit. Again citing the Sixth Circuit, he said, “As a rule, electronic signatures are not deemed sufficient execution under 28 U.S.C. § 1746.”

Judge Clement said that the “Bankruptcy Court for the Eastern District of California has long followed this rule,” citing a decision that did not recognize DocuSigned signatures.

The result is the same under the district’s local rules. One local rule requires that affidavits “be signed by the person offering the evidentiary material.” The rule, Judge Clement said, has been interpreted to require “a manually-created, wet signature.”

The general rule has two exceptions, both based on local rules. First, the court will accept a computer-generated signature, “/s/” for example, “only if an original wet signature is in the possession of the registered user of” PACER, Judge Clement said. Second, proof of the existence of the execution of a document may be demonstrated by “an image of an extant wet signature” shown by facsimile or by a document created in PDF format.

Judge Clement explained why courts strictly require the existence of wet signatures. He said that “DocuSign type signatures are capable of manipulation or forgery and that manipulation is not readily discernable to opposing counsel or to the court.” Citing Section 1746, he held that the local rules do “not authorize the use of DocuSign as a means of subscribing an affidavit” because the “district has always required the existence of a manual, wet signature.”

There is an escape hatch, however. “For documents electronically filed,” Judge Clement said that “the party may [write] ‘/s/ Name’ or [use] a software-generated electronic signature, provided counsel already has in its possession a manually created wet signature.”

In the case before him, the plaintiff had not shown the existence of a wet signature, so Judge Clement sustained the objection to the submission of the affidavits.

Opinion Link

Case Details

Case Citation

Cabardo v. Patacsil (In re Patacsil), 20-02167 (Bankr. E.D. Cal. Feb. 28, 2023)

Case Name

In re Patacsil

Case Type

Bankruptcy Tags