July 2012 Vol. 9, No. 2

9.2.1

Electronic Signatures

Case:

Valiavicharska v. Celaya (N.D. Cal. 2012) 2012 WL 1016138

Issue:

In an excessive use of police force action pending in the U.S. District Court for the Northern District of California, did an attorney properly file a declaration with the electronic signature of his client where the client had verbally approved the substance of the declaration but had not actually seen or signed it?

Holding:

No.  General Order § 10(B) of the Northern District requires that an attorney filing a declaration on behalf of someone other than himself attest that “concurrence in the filing of the document has been obtained” from the signatory and requires the attorney to “maintain records to support this concurrence for subsequent production for the court if so ordered.” 

Plaintiff’s counsel filed a declaration electronically signed by his plaintiff-client in opposition to a motion for summary judgment.  Plaintiff testified at trial during cross-examination that she had never actually seen the declaration.  In response to an OSC re:  sanctions the Court later issued, the attorney said that, before filing the document, he had discussed the contents of the declaration with his client and had told her “what it was and what it was for” after which discussion the client, without reviewing the declaration, authorized him to sign her name electronically.  (2012 WL 1016138, *2.) 

The Court ruled that that was not enough to comply with the General Order.  “A declarant cannot affirm under penalty of perjury that the contents of a document are true when she has not reviewed the document.  It therefore follows that an attorney cannot, on the declarant’s behalf, make such a representation about a document when the attorney had not provided it to her for her review.  [Plaintiff’s counsel] admits that plaintiff never saw the declaration or approved its contents verbatim.  A telephone conversation regarding the ‘substance’ or ‘contents’ of a proposed declaration does not provide a declarant with enough information to authorize a binding signature on her behalf and therefore does not meet the requirements” of the General Order.  (Ibid.)

Plaintiff’s counsel argued that he should not be sanctioned because he was unaware of the General Order and because his conduct was not intentionally dishonest.  The Court rejected these arguments, saying that counsel’s defense “merely highlights his misunderstanding of his obligations as an attorney licensed to practice before the Northern District.  As an attorney admitted to practice in the Northern District, he is required to make himself familiar with the rules of the Court.”  (Id. at *3.)  Moreover, sanctions may be imposed even for inadvertent misconduct, such as failure to comply with court rules.  (Id. at *4.)

In any event, “common sense dictates that it is improper to represent to the Court that a declarant swears under penalty of perjury to the contents of a document the declarant never saw.  Prior to the adoption of electronic filing, an attorney could not forge a declarant’s physical signature even after a phone conversation in which the declarant approved the document; attorneys were required to procure the declarant’s actual signature before filing the document.”  Adoption of the General Order allowing the use of electronic signature for the sake of convenience “did not give attorneys license to forge a witness’s signature and no reasonable attorney could have believed otherwise.”  (Id. at *4.)

Notes:

The Court declined to impose monetary sanctions on plaintiff’s counsel, such as the attorneys’ fees the defendant incurred in filing a reply in support of the motion for summary judgment.  The statement in plaintiff’s electronically filed declaration was actually consistent with defendant’s theory of the case and was used to impeach plaintiff’s inconsistent trial testimony.  In addition, the Court found that the declaration had had a negligible impact on the attorney time spent on the motion for summary judgment and had been immaterial to the Court’s resolution of the motion for summary judgment.  (Ibid.)  Instead, the Court referred plaintiff’s counsel to the Northern District’s Standing Committee on Professional Conduct “for any disciplinary action the Committee deems appropriate.”  (Ibid., citation to local rule omitted.)

In District Court in the Southern District of California, a party filing a document signed by a non-registered user of the Court’s electronic filing system, such as a client, must scan and electronically file the original document.  “The filing party must retain the original document for a period of five years from the date the document is signed, or for one year after the expiration of all time periods for appeal, whichever period is greater, and must provide the original paper document to the Court upon request.”  ((May 22, 2006) General Order 550 § 2(f)(2).) 

By contrast, the United States Bankruptcy Court for the Southern District of California allows for either an /s/ typed signature in place of where the signature would otherwise appear or a scanned image.  Court procedures do require that the original, wet signature be maintained for five years.  ((March 1, 2010) Administrative Procedures and Guidelines for Electronic Filing § 2(b),(c).)

Because the mandatory electronic filing of documents is expanding in California state and federal courts, practitioners should take note of the principles announced in the above ruling regardless of where they practice even though the ruling is specific to the Northern District of California.

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