In February, I began contributing to Donie Vanitzian’s HOA Q&A Column in the Los Angeles Times.
Q&A: Digital signatures, computer-documents storage pose challenge to HOA board
Question: Our association seems to be stumbling over itself when it comes to electronic documents. First, it’s embroiled in litigation and received a subpoena for documents, which prompted our association attorney to have the board gather all electronic correspondence for a specified period of time. The problem is that some directors deleted documents from our computers, sold their units and moved out of state.
Separately, one of those departed directors made a mandatory rule that all homeowners had to sign their communications with a digital signature or the board would not accept an owner’s email — even if it was an emergency. Is an electronic signature legally binding? Is there a difference between electronic and digital signatures? And how do you know who is actually signing something with these signatures?
Answer: Litigation is like poker; you must play the cards that are dealt. Know too that you simply cannot change the past. Your duty in responding to a subpoena is to produce all relevant, non-privileged documents in the custody or control of you, your attorneys and third-party agents. If the documents no longer exist or are unavailable, there may be little you can do. The party seeking discovery may question your association on this matter and may seek discovery from the departed directors to see if they have retained any records.
The bigger question, however, is when and why were the records deleted. The destruction, alteration or failure to preserve evidence is known as “spoliation,” and it is a big deal.
Depending on the association’s degree of culpability, if any, and the prejudice to the other side, a court may impose monetary sanctions, prevent the association from presenting certain evidence, terminate the association’s case altogether or, even worse, enter judgment against it. In a jury trial, the court may instruct the jury to assume that the missing evidence would be unfavorable to the association. If that were not bad enough, spoliation is also a criminal offense under Penal Code section 135.
Given the potential risks involved in not producing the documents, your association may want to consult with a computer forensics expert to see if the files can be retrieved from the computer.
Unlike the low-tech, but highly efficient, paper shredder, deleted computer files are not always irretrievable and sometimes can be found on the hard drive, backup tapes on Internet-based storage and backup systems such as iCloud, Google Drive or Dropbox. If this proves unsuccessful, then the association may wish to solicit the cooperation of the departing directors to obtain the documents. They would be wise to cooperate because they may have liability to the HOA for failing to preserve the records.
As for electronic signatures, they cannot be unilaterally imposed for all communications by a single director. Associations act through their board of directors. And even if such a requirement was authorized by the full board, directors have a fiduciary duty to act in the best interest of the association and it would be inconsistent with that duty to arbitrarily ignore vital email communications from titleholders. But that is not to say that electronic signatures are not useful tools.
To be clear, an electronic signature is any electronic symbol used with an intent to sign a document. Under the federal E-Sign Act and the Uniform Electronic Transactions Act (adopted by every state except Illinois, New York and Washington), the parties to an agreement must express an intent and agree to execute the agreement electronically, which often takes the form of separate correspondence or language within the agreement indicating such an intent.
Like any signature, though, an e-signature can be challenged by a party who claims that it is not his or her signature or that consent was not given. This is where digital signatures come in. They are generated by software applications and provide greater surety to both the person signing a document and the one receiving it.
Last year, to eliminate any confusion over electronic versus digital signatures, California adopted Assembly Bill 2296 clarifying the standards of what constitutes a digital signature.
Under the bill, digital signatures use software to generate a signature that is unique to the person using it, must be capable of verification (such as by collecting the email and Internet protocol address of the signer) and are linked to the executed document in such a way that if it is changed the digital signature is invalidated.
As one provider explains, digital signatures are akin to “electronic fingerprints” and create a coded digital message that securely links the signer with the document being signed and verifies the chain of custody of the document.
A valid contract can be created using electronic signatures that do not meet the stringent criteria of a digital signature, but the risk of a party challenging the validity of a signature is dramatically reduced by using digital signatures. Digital signatures are, in essence, the Internet equivalent of a notary — but without the cool stamp.
Bennet Kelley, who co-wrote this column, is an attorney and founder of the Internet Law Center, a Santa Monica commercial law firm specializing in various aspects of Internet law. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or email@example.com.