CYA Certificates … Huh?

In this digital world, coupled with our litigious society, ensuring you and your business are covered legally is an all-important facet of business. Without a sufficient written acknowledgment (digital or otherwise), a document lacking one becomes nothing more than fodder for with which the lawyers can wipe the floor. Should you ever find yourself or your business under scrutiny, having the proper documentation, along with the proper, legally binding acknowledgements and/or receipt is paramount to ensuring you are Covering Your Assets.

Here are three things to consider:

• In this digital world, what constitutes a written acknowledgement?
• How can I ensure that the files I store digitally are accurate, encompassing and legally complete?
• What are the legal ramifications for failing to CYA?

Let’s Begin at the Digital Beginning

A Written Acknowledgement, that is, verifiable proof, Wikipedia states:

In law, an acknowledgment is a declaration or avowal of one’s own act, to give it legal validity, such as the acknowledgment of a deed before a proper officer. The term also refers to the certificate of the officer attesting such declaration.
Before me, the undersigned authority, personally appeared _________, who produced _________ as identification, and who acknowledged before me that they executed the foregoing instrument as their voluntary act and deed. In Witness Whereof, I have hereunto set my hand and seal this ___ day of ____.

According to Wikipedia, a digital signature, or electronic signature:

Electronic signature – means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

Another important aspect of this definition lies in the necessity that the electronic signature be linked or logically associated with the record. In the paper world, it is assumed that the symbol adopted by a party is attached to or located somewhere in the same paper that is intended to be authenticated, e.g., an allonge firmly attached to a promissory note, or the classic signature at the end of a long contract. These tangible manifestations do not exist in the electronic environment, and accordingly, this definition expressly provides that the symbol must in some way be linked to, or connected with, the electronic record being signed.

Section 8 provides that the information be available to all parties.

(a) …An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.

(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.

 

If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record which:

(1) accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and
(2) remains accessible for later reference.

By comparing both definitions, it is easy to attest and ascertain that without a legally binding effort on all parties, the lack of a legal acknowledgment or digital signature attesting to the stated act(s) will not go far in a court of law. You may not fare well should something legally challenge you. Without written acknowledgement or digitally signing to verify that employees have read and understand, not just received them, there isn’t any acceptable proof that training or information sharing ever happened.

Whether it is a case of Real Estate transfer, as the Wikipedia explanation uses, or human resources policies and procedures such as Sexual Harassment (see Let’s Talk about Sex… or Think You’re Covered?); digital signatures for receipt of training along with written documentation of the specifics of a particular legal issue MUST accompany your paper and digital files. This digital world has reduced the amount of paper filing, and as businesses become more “paper reduction friendly,” digital signatures and electronic acknowledgments become more and more important. Years from today, a legal issue may arise that will challenge your files, whether they be paper or digitally stored. Possessing the proper, legal documentation will protect you from potential loss.

It simply isn’t enough to provide the necessary training to staff and management regarding acknowledgment. Being able to legally verify years from the date of such information share, training or other communication between the “company” and individuals, these issues, if handled formally and effectively, can be the crucial evidence that will hold up if legal action is ever visited upon you or your firm.

TTP’s, or trusted third parties are an important facet in protecting one’s self from litigation in the verification of digital signatures, digital acknowledgments and the like. Myco Portal is one such TTP, and is ready to assist in protecting you and your business from potential exposure and liability.

The result of failing to possess legally binding acknowledgement, whether it be paper or digital can be catastrophic. Businesses have been closed, owners have been arrested and even jailed for the lack of proper documentation. This can and might happen if you are not prepared and protected. Better to Cover Your Assets today than risk having them exposed to litigation down the road.

Here’s to Your Digital World,

Marc Martin

Do you have a signed acknowledgement by each employee for all important company documents?