In the age of the digital signature, attorneys can find themselves in the following predicament: facing a tight deadline to serve interrogatory responses and having access to the client’s electronic signature. What if, for the sake of expediency, an attorney used the digital signature to sign the client’s interrogatory responses? Should he or she?
A recent case out of the Southern District of New York—alleging copyright infringement of a picture of oysters—provides a few pearls of wisdom. Wisser v. Vox Media, 19 Civ 1445 (S.D.N.Y. Apr. 1, 2020).
Bill Wisser sued Vox Media alleging that the company used his photo of oysters without permission. Wisser’s counsel, LLF, served responses to Vox’s interrogatories. The verification attested that Wisser had read the interrogatory responses and that they were true and accurate. At his deposition, however, Wisser testified that he had never seen the interrogatory responses and that the signature on the verification page was not his.
In actuality, LLF never had Wisser review the interrogatory responses nor asked him to review his records. After completing the discovery responses, LLF took Wisser’s digital signature from a letter and signed the interrogatory responses.
Vox moved for sanctions, and the court determined that the verification was entirely misleading. Despite indicating otherwise, Wisser had not read the interrogatory responses and did not verify he knew the contents to be true and accurate. LLF did not attempt to rectify the error by having Wisser review the response retroactively. The district court imposed sanctions.
We offer the following pearls to keep you from saying “oh shucks”:
- Verify the witness’s signature. At deposition, show the witness the interrogatory responses and ask if the signature is theirs—especially where there appears to be a digital signature. Even if there is a wet signature, verify that it is the witness’ signature. See, e.g. In re Bradley, 495 B.R. 747 (Bankr. S.D. Tex. 2013) (attorney instructed his legal assistant to forge client’s signature). Ask the witness whether he or she reviewed the responses for accuracy and whether he or she searched her records for responsive documents. Had Vox’s attorneys not asked, they never would have discovered the subterfuge.
- Be proactive. When discovery demands come in, reach out to your client early on, outline what documents have been requested, and ask him or her to search their records.
- Seek an extension. When running up against a discovery deadline, seek an extension if your client needs time to search for documents, review the responses for accuracy, or sign the verification. If your adversary will not consent, write to the judge and explain why additional time is needed.
- Have your client verify the interrogatories. Federal Rule of Civil Procedure 33(b)(5) requires the attorney to sign the objections and the client to sign the answers. Do not make a habit or practice of sending interrogatory responses without verifications. Such practice invites potentially sanctionable conduct. Verifying the responses is also a good opportunity to update your client on the case.
- Power of attorney isn’t a forgery license. Possessing power of attorney does not excuse forging the client’s signature. State law generally requires the principal-agent relationship be disclosed. See e.g., N.Y. General Obligations Law § 5-1507(1).
- Potential sanctions. An attorney should never forge a client’s signature or use a client’s digital signature without authorization. Doing so invites sanctions ranging from attorney fees and expense for re-opening the deposition, attorney fees in connection with the sanctions motion, sanctions paid into the court, or any combination of these.
Litigators should verify that an interrogatory verification is genuine. Failing to do so could result in unwitting deceit. Avoid the temptation to take shortcuts by forging your client’s signature or using your client’s electronic signature without permission. When all that is required is asking your clients to review their records, ensure accuracy of the responses, and sign, signing your client’s name is simply not worth the risk. Your reputation and your Firm’s are more valuable.