CHAPTER 3, F. The Case for Abolishing the "Wet Ink" Signature Requirement

• Jurisdiction: United States

F. The Case for Abolishing the "Wet Ink" Signature Requirement

ABI Journal

October 2019

Patricia Redmond

Stearns Weaver Miller Weissler Alhadeff & Sitterson, PA

Miami

Ashley D. Champion

U.S. Bankruptcy Court (N.D. Ga.)

Atlanta

It is undisputed that conversion to an electronic filing system has been a godsend to bankruptcy practice. Prior to CM/ECF, bankruptcy courts and practitioners expended hundreds of hours and millions of dollars producing, copying, indexing, filing and storing countless reams of physical paper associated with millions of case files, which (1) could only be viewed at the clerk's office during specific hours, (2) were only available if they had not been checked out by the court, and (3) could only be copied after filling out a copy request form and paying a copy charge.¹

The benefits of electronic filing are myriad, as court records are now freely reviewable in the clerk's office or online through PACER; personnel are no longer required to file, index, store, retrieve and copy documents, resulting in enhanced productivity and millions of dollars in savings from personnel reductions; courts have given back thousands of square feet in redundant office storage space, resulting in reduced rents; and even the environmental impact of printing and storing such high volumes of paper — including health risks caused by the growth of toxic mold in such storage spaces — has either been greatly reduced or eliminated.² The result? A much sleeker and more user-friendly practice.

However, CM/ECF is a double-edged sword because the court and parties-in-interest reviewing the documents filed in any given case are forced to trust that the "verified" documents bearing the debtor's electronic signature ("/s/") were in fact signed under penalty of perjury by the debtor on the date indicated. In an effort to ensure compliance with the verification requirements, many courts have enacted local rules requiring attorneys to retain "wet ink" signature pages in paper form for a certain period of time — usually a number of years — and make those pages available upon request.³ Such rules ignore the realities of an era where business is largely conducted digitally and "wet ink" signatures are rapidly becoming obsolete.

More specifically, they ignore the practical difficulties that consumer counsel face — most acutely when amendments need to be filed quickly — in having to obtain original "wet ink" signature copies by either having their clients come in or relying on them to have the original documents delivered to their offices prior to uploading the electronic filing. These rules also force practitioners to print, file, index and store all of these documents. Perhaps most importantly, such rules only provide the illusion of verification because in practice, nobody is actually checking these signature pages. Thus, the efficiency created by e-filing is being eroded by the "wet ink" signature requirement, which ironically contributes to the problem that it was intended to solve. This article provides a brief primer on the verification requirements governing certain filings, examines the cautionary tale of In re Pina,⁴ and proposes a new local rule that enables practitioners to more easily obtain the required verification by retiring the dinosaur that is the "wet ink" signature requirement.

Primer on the Verification Requirement

The debtor's petition, lists, schedules and statements, along with any amendments thereto, must either be verified by oath or affirmation⁵ or contain an unsworn declaration under penalty of perjury pursuant to 28 U.S.C. § 1746.⁶ Section 1746 contemplates only a "signature," and courts may enact local rules permitting or requiring both that documents be filed, signed or verified by electronic means and that "wet ink" signatures be obtained and maintained by counsel. Apart from such local rules, there is no requirement in the statute or Federal Rules of Bankruptcy Procedure that the signature in question be a "wet ink" signature.⁷

At least in the case of documents filed prior to the meeting of creditors, both verification methods are employed. The debtor signs an unsworn declaration that is filed with the documents and swears under oath at the meeting of creditors that he/she has reviewed and signed his/her schedules, lists and statements, and answers questions regarding their accuracy.⁸ Such documents filed electronically in compliance with the local rules constitute written papers for the purpose of applying the Bankruptcy Rules, Federal Rules of Civil Procedure and § 107 of the Bankruptcy Code.⁹

Further, Rule 9011 provides that, "[b]y presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," "[t]he allegations and other factual contentions have evidentiary support."¹⁰ Thus, by signing the petitions, schedules, lists and statements, the debtor and counsel (if any) represent to the court that the contents of those documents are correct and have evidentiary support. Rule 9011 also provides a mechanism whereby appropriate sanctions might be imposed for violations of subsection (b).¹¹ As a result, an attorney might face sanctions for violations of Rule 9011(b) for each electronic filing of documents that require verification and are not actually verified.

In an effort both to protect debtors and ensure that interested parties and the court can rely on the debtor's...