This article was co-authored by Jenna Jacobik, a summer associate based in the firm’s Greenville, SC office.
Judge Frederick E. Clement of the United States Bankruptcy Court for the Eastern District of California recently held that affidavits with a computer-generated signature are insufficient and hold no evidentiary value pursuant to E.D. Cal. LBR 9004-1(c)-(d) and 28 U.S.C. § 1746. Cabardo v. Patacsil, No. 20-23457-A-7 (Bankr. E.D. Cal. Feb. 28, 2023).
The Plaintiff, Cabardo, submitted eight affidavits to serve as written direct testimony, all signed using DocuSign. Following the plaintiff’s submission, the Defendant, Patacsil, raised evidentiary objections that the affidavits were unsigned given the Plaintiff’s utilization of DocuSign. To determine the sufficiency of the signatures the Court analyzed local bankruptcy rules, both in substance and prior interpretation of the rules in connection with similar arguments.
There was no argument from the Plaintiff that the signatures on the affidavits were written electronically. The Plaintiff contended, however, that electronic signatures did not immediately render the affidavits insufficient. The Plaintiff’s argument for the validity of the signatures hinged on the signees having used their fingers to physically draw their signatures, in turn making them “originally signed documents.” The Plaintiff’s argument was found to be in contrast with the district’s precedent concerning this issue.
The Eastern District of California’s local rule 9004-1(c) has always been interpreted as creating a requirement that affidavits, and other court documents, be executed with a “manually-created wet signature.” The court relied heavily on its prior opinion in In re Mayfield, 2016 WL 3958982 (Bankr. E.D. Cal. 2016) to support this conclusion. The court found the framework of the rule, including the word “manual,” was structured to require a wet signature to preserve the reliability of the signature, and excludes the ability to rely solely on an electronic signature. Therefore, the bankruptcy court granted the Defendant’s objections to the inclusion of the affidavits due to the insufficiency of the signatures.
This court is not the first to take issue with the admissibility of a document because of an electronic signature. Every document used as a declaration in any court is required by 28 U.S.C. § 1746 to be signed by the individual making the declaration. If a court determines that the local rules do not allow electronic signatures as an original signature, then the document is rendered inadmissible since it does not conform with requirement set forth in 28 U.S.C. § 1746.
Not only are these documents inadmissible, but the signatures now represent a misrepresentation to the court. Attorneys in other districts have found themselves facing potential sanctions based on their reliance wholly on electronic signatures. By submitting electronic signatures, an attorney is representing to the court that he or she has received a wet-ink signature. This misrepresentation also potentially leads to sanctions imposed on clients when electronically signing documents under penalty of perjury.
The Local Rules of the United States Bankruptcy Court for the Eastern District of California do consider the evolving influence of technology. If attorneys utilize electronic signatures, they can do so without facing penalty in two scenarios. First, when filing using an electronic signature, the attorney must be in possession of a “wet-ink” signature. Second, an attorney may use a facsimile of a wet signature to prove that the document has been executed. In Cabardo, the signatures were insufficient, given their electronic creation, lack of pre-existing wet-ink signatures and not being filed electronically. These exceptions further promote the concept that a software-generated electronic signature cannot serve as a substitute for an attorney’s possession of a wet-ink signature
Meanwhile, in other jurisdictions, local rules have been amended to allow electronic signatures to serve as original signatures. Nebraska appears to be the first state to amend its local rule regarding electronic signatures. The Nebraska district court’s Local Rule 9011-1(A)(2) explicitly allows for electronic signatures, including those created using DocuSign, to constitute an authorized signature. The Eastern District of Virginia has taken a similar stance as Nebraska, and its Local Rule 5005-1(F)(2)(c) now allows signatures that are solely electronic to serve as an original signature on court declarations. It is well established that in the Eastern District of California, electronic signatures cannot completely displace the requirement for wet-ink signatures. This rule does not prevail in every district. However, Cabardo serves as a reminder that attorneys need to be mindful of the variance that can be found between local rules, including issues of when and how to use electronically-generated signatures versus wet-ink signatures.
M. Kevin McCarrell is a partner, based in the firm’s Greenville, SC office.
 See e.g., Blount v. Stanley Engineering Fastening, 55 F.4th 504, 515-516 (6th Cir. 2022).; see also, cases denying affidaivts or declarations not signed at all, Fresno Rock Taco, LLC v. Nat’l Sur. Corp., 2012 WL 3260418, at 11* (E.D. Cal. Aug. 8, 2012); Sfakianos v. Shelby Cnty. Gov’t, 481 F. App’x 244, 245 (6th Cir. 2012);
 In re Grimmett, 2017 WL 2437231, *11 (Bankr. D. Idaho June 5, 2017); In re Ruebling, 2016 WL 6877796 *4 (Bankr. C.D. Ill. Nov. 18, 2016); In re Mayfield, 2016 WL 3958982 (Bankr. E.D. Cal. July 15, 2016).