The Electronic Signatures and Global and National Commerce Act (ESIGN) and the Uniform Electronic Transactions Act (UETA) now make it possible to present and store information and to sign agreements electronically in circumstances where, in the past, paper documents and wet signatures would have been required.

These new ecommerce laws, however, bring new challenges. The design of a system for signing and storing electronic records requires an understanding of the interaction between the electronic processes used to sign and store the records, and various legal requirements - that is, the legal requirements under ESIGN and UETA and underlying substantive law.

This panel session will provide attendees with practical guidance for creating and storing electronic records. Specifically, these issues will address:

• Agreements to Engage in Business Electronically - Electronic transactions require the agreement of all parties to the transaction and a special consent is required to deliver notices and disclosures to consumers electronically.
• Authentication of Parties to the Transaction - The importance of a) authenticating parties to the transaction and b) re-authenticating their credentials for ongoing transactions.
• Form of Electronic Signature - The need to have party relying on an electronic signature, not the signer, determine the form of electronic signature to be used by the signer.
• Creation of an Authoritative Copy - The importance of designating one record as the "authoritative copy" or "original," as well as establishing who has control of that copy and where it is stored.
• Migration of "Originals" - When electronic records are created, an agreement among the parties regarding the right to migrate the "original" to different electronic media or to paper form i.e., "papering out", and vice versa should be addressed. If a record created on paper is to be converted to electronic form, there should be an agreement regarding that process as well.
• Retention of and Access to Information - The party relying on the delivery of legally required notices and disclosures must ensure the electronic process demonstrates that the recipient can actually access and retain the information sent.
• Standardized Custodial and Certification Processes - When establishing a method for storing electronic records, standardized custodial and certification processes should be established to facilitate the records' admissibility into evidence in court.
• Authority to Create Electronic Records - Organizations need to have rules regarding the authority of personnel to create electronic records that will obligate them. Organizations also should have an agreement with all counterparties regarding the authority of the organization’s personnel to commit it in electronic communications, such as e-mails.
• Preservation of Record Integrity - Data management systems within a company should take into account the need to preserve the integrity of electronic records and the ability to introduce them into evidence.