Promoting E-Legal Behavior:
Litigation And Counseling
Lasagne A. Wilhite is a Litigator with
Reed Smith LLP’s offices in the District of
Columbia. Ms. Wilhite’s practice focuses
on commercial and regulatory litigation
and counseling. She litigates and counsels
clients in complex disputes involving
contractual obligations, the role of
computerized data and data management
in meeting contractual duties, defamation
through media, and contract-based torts.
She also has extensive experience in the
application and interpretation of statutory
and regulatory law.
Lasagne A. Wilhite
The best way to approach e-legal issues is to
be mindful of the nuances of contract law that
are unique to electronic behavior.
With widespread use of email, the Worldwide
Web, and Internet databases dating back more than 10
years, most might agree that the electronic age is no lon-
ger in its infancy. Yet, the electronic era is still of a very
young age, and is ushering in new bodies of law. The le-
gal field has seen the evolution of many experts in matters
of “e-discovery” and “e-commerce,” and members of the
legal community have also likely heard terms such as “e-
contract,” “e-signature” or “e-tort.” Still, the number of
litigators asserting expertise in the practical import and
scope of legal issues that spring from these concepts is
decidedly less prolific than those in areas of e-discovery
and e-commerce.
Unique legal issues arise when parties negotiate con-
tracts in whole or in part by electronic means, or when
one or more parties sign a contract using an electronic
signature. Often, however, attorneys tackle issues that
arise from their clients’ use (or possible misuse) of elec-
tronic media on an ad hoc basis, applying knowledge and
experience from cases that are not electronic-media spe-
cific to address issues that could benefit from expertise
with the electronic spectrum. The law usually takes one
of three paths:
The Practical Litigator | 45
46 | The Practical Litigator January 2009
• Applying the standard legal rules and regula-
tions to electronic transactions;
• Adapting existing standard legal rules to idio-
syncrasies in electronic transactions; or
• Adopting new rules of law designed specifically
for electronic transactions.
Relatively few legal professionals who confront le-
gal issues that relate to electronic media—in both
business and litigation arenas—address them as
distinct issues warranting focused expertise. This
article labels this body of issues as “e-legal” mat-
ters. The body of e-legal matters is broad, ex-
tending from e-contracts through international
e-commerce to e-torts. As such, e-legal issues im-
plicate a cross-section of several legal areas. Ac-
cordingly, this article focuses on e-legal matters
that have great potential to stimulate questions for
a broad range of clients and to spawn litigation:
the e-legal matters of e-contract and e-signature.
“E-signature” is defined as an electronic sound,
symbol, or process attached to or logically associ-
ated with a record, that a person executes or adopts
with the intent to sign the record. An e-signature is
distinct from a digital signature. What qualifies as
an e-signature is more expansive. A digital signa-
ture is an algorithmic cryptography, used to simu-
late the security properties of a handwritten signa-
ture. One can use a digital signature to execute an
electronic signature, but not all electronic signa-
tures are accomplished by digital signature. For an
e-signature, the primary inquiry is simply whether
there are indicia that a party intended a particular
electronic symbol to constitute the party’s signature.
By “e-contract,” we refer to a binding agree-
ment that is accomplished by electronic means;
businesses may negotiate the terms electronically,
consummate the agreement electronically, or ef-
fectuate performance electronically. E-contracting
is not the same as the general concept of e-com-
merce. E-contracting is more specific than the sale
and purchase of goods or services by electronic
means.
This article will provide guidance on why an
approach that recognizes the unique aspects of e-
legal matters better equips attorneys in counseling
their clients and, if necessary, litigating on their be-
half. More importantly, the article will provide ad-
vice on how to apply e-legal considerations to one’s
practice.
THE IMPORTANCE OF AN E-LEGAL AP-
PROACH • Communications, business platforms,
meeting formats, media, document exchange, doc-
ument sharing, and advertising are all increasingly
electronic. For instance, in 2001, the Gartner Group
estimated that worldwide revenues from the elec-
tronic exchange of products, services, or informa-
tion between businesses (known as B2B or “e-biz”)
would reach $7.29 trillion by 2004. Between 2001
and 2006, B2B had an expected compound annual
growth of 41 percent. See CIO.com, Definitions,
B2B, Contributor: Paula Jones (July 21, 2001). The
consistent thread in all B2B predictions this decade
is for high continuous B2B growth for the next sev-
eral years in the United States, Japan, and Western
Europe. Id. There has also been significant growth
in electronic transactions between businesses and
government (“B2G”) and between businesses and
individual consumers (“B2C”), although forecasts
for B2B business revenues are greater.
A detailed body of law is developing to ad-
dress the issues that arise in the electronic world
of business. For instance, in November 2005, the
United Nations adopted the Convention on the
Use of Electronic Communications in Internation-
al Contracts (“E-Contracting Convention”). The
E-Contracting Convention is intended to remove
obstacles to the use of electronic communications
in international contracting. The Convention does
not alter the fundamental rules of contract law. It is
designed to enable parties, not regulate them. The

E-Contracting Convention applies to B2B transac-
tions, and addresses fundamental e-contracting le-
gal issues, such as preserving freedom of contract,
establishing default rules for electronic communi-
cations, recognizing automated contracts, and es-
tablishing default rules for human input errors in
electronic communications. The United Nations
Commission on International Trade Law published
the Convention text in 2007. See United Nations
Convention on the Use of Electronic Communi-
cations in International Contracts, United Nations
Publication, ISBN 978-92-1-133756-3. Eighteen
countries signed onto the Convention during the
signature and ratification period. Several sections
of the American Bar Association (“ABA”) are urg-
ing the ABA to recommend that the United States
government ratify the Convention as well. See ABA,
Sections of Science & Tech. Law, Int’l Law, Bus.
Law and Intellectual Property Law, Report to the
House of Delegates, dated 8/11/2008, www.aba-
net.org/leadership/2008/annual/recommenda-
tions/OneHundred.doc.
U.S. rules and legislation that govern electronic
contracts and electronic signatures include the fol-
lowing:
• Uniform Electronic Transactions Act (1999)
(“UETA”) (unifying differing state laws over
such areas as the validity of electronic signa-
tures, thereby supporting the validity of elec-
tronic contracts as a viable medium of agree-
ment);
• Electronic Signatures in Global and National
Commerce Act (2000) (“E-Sign Act”) (estab-
lishing rules to ensure the validity and legal ef-
fect of contracts entered into electronically);
• Government Paperwork Elimination Act
(“GPEA”) (1998) (requiring, as of 2003, that
federal agencies use electronic forms, electronic
filing, and electronic signatures to conduct of-
ficial business with the public when practicable,
and giving focused guidance on records man-
E-Legal Practice | 47
agement issues for records created using elec-
tronic signature technology);
• Uniform Commercial Code (harmonizing the
law of sales and other commercial transactions
in all 50 states within the United States).
For e-signatures, 49 U.S. states, the U.S. Fed-
eral Government, and the governments of over 15
countries have enacted or are currently considering
some form of electronic signature legislation. The
initiative began with digital signatures—cryptog-
raphy-based and otherwise—and has expanded to
the adoption of technology-neutral statutes that fo-
cus generally on all types of electronic signatures.
In light of the onslaught of legislation within
the past 10 years to address the increasing impor-
tance of B2B, B2G, and B2C electronic transac-
tions, it is important for litigators to be prepared
to address their clients’ needs with an e-legal ap-
proach.
LITIGATING E-LEGALLY FOR E-CON-
TRACTS AND E-SIGNATURES • Litigation
that involves e-contracts and e-signatures has several
unique aspects that you should know about. Dis-
cussed below are some of the major points to ex-
plain how to proceed.
Confirm That An E-Contract Exists
As in all cases, the litigator’s first step in ad-
dressing a dispute involving an e-contract is to de-
termine whether there are viable claims or defens-
es. Because contract disputes typically arise from
allegations that one party has breached the con-
tract, a litigator must first determine if a contract
exists that can form the basis for a civil action, and
then whether there is a breach upon which a party
can seek damages. Litigating contract disputes in
which all or part of the contract formation or per-
formance has been electronic involves the standard
considerations for traditional contract disputes,
plus specific attention to technical considerations.
48 | The Practical Litigator January 2009
Accordingly, the first step is to determine whether
the fundamental elements are present to establish
the existence of a contract: offer, acceptance, and
consideration. Further, a litigator should determine
whether facts exist to support a finding of consent
(described as “mutual assent”), and whether a con-
tract that is supposed to be in writing is in writing.
For e-contracts, determining when a party has
made a complete offer, whether an offer has been
accepted or rejected, or when a contractual duty
has been performed involves an intersection of
contract law, statutory interpretation and techno-
logical knowledge. For instance, is an offer “made”
when a party sends electronic mail detailing terms,
when the recipient receives the email, or upon re-
ceipt of some kind of notification that the email
recipient has viewed the email? Similarly, at which
corresponding response stage is an offer deemed
“accepted”? Also, at what point can an interced-
ing electronic rejection or revocation of the offer
defeat formation of a contract?
1. Has There Been An Offer?
As in traditional contracts, an offer transmitted
through electronic media is a proposal to make a
deal. The offer must be specific enough to identify
the basic obligations under the contract. An offer
must be communicated to another person and re-
main open until it is accepted, rejected, retracted,
or has expired.
2. Has There Been An Acceptance?
Acceptance is an acknowledgment by the per-
son to whom the offer was made that the offer is
accepted. The acceptance must comply with the
terms of the offer and must be communicated to
the person who proposed the deal. The acceptance
stage of contract formation gives rise to the great-
er part of contract formation disputes. Questions
arise as to which terms have been “accepted,” and,
because business negotiations often involve pro-
tracted back and forth, pinpointing the time of ac-
ceptance is often critical. Under the common law
“mailbox rule,” the general rule is that a contract
is made when the acceptance is dispatched. Thus,
consent is deemed to be fully communicated when
the offeree has placed his acceptance in the course
of transmission to the offeror. An adverse party’s
assertion that the party never received or opened
the acceptance if of no consequence.
For e-contracts, the dispatch rule applies for ac-
ceptance sent by email, but does not apply for con-
tracts formed via a Web site page. Regarding email
acceptance, courts have held that an acceptance of
a contract may be transmitted by any means which
the offeror has authorized the offeree to use. If so
transmitted, the acceptance is operative and com-
pletes the contract as soon as it is put out of the
offeree’s possession, without regard to whether it
ever reaches the offeror, unless the offer otherwise
provides. In short, the method of acceptance must
be a reasonable response to the offer. If the parties
have been corresponding by email, then email is a
reasonable means to accept the offer.
Whether the offeror left the mode of acceptance
up to the offeree is also relevant to determining
what is a reasonable response to an offer. If the of-
fer clearly defines that an acceptance is not deemed
accepted until it is received, then the mailbox rule
will not apply. If, however, the option was left open,
then the mailbox rule does apply for electronic con-
tracts involving the exchange of emails. IBLS Edi-
torial Board, The Mailbox Rule and Electronic Contracts,
International Business Law Services (2001-2008).
The mailbox rule applies to emailed acceptance
because, while email communications can be sub-
stantially instantaneous, there can also be a delay
time of minutes to days before the email reaches
the recipient’s server. The mailbox rule can avert
contract formation disputes that may arise due to
the delay inherent in email. Therefore, under the
mailbox rule, a contract for the sale of the goods
enumerated under the contract would form as soon
as the acceptance is dispatched via email.

Nonetheless, the law gives the offeror a modest
amount of protection. If the acceptance message
somehow gets lost in the vast realm of cyberspace,
the offeror may assume that the acceptance has not
been accepted.
The receipt rule, rather than the mailbox rule,
should govern contracts formed via Web sites,
which means that acceptance is deemed valid when
it is received, not dispatched. The receipt rule is
more appropriate for Web site contracts because,
unlike electronic mail, Web site communications
are two-way communications; the parties are in
constant contact because these communications are
instantaneous and generally as fast as a telephone
conversation. Web site communications are gener-
ally not going to be lost in the realm of cyberspace.
Therefore, in the sale of goods, for example, when
an offeree clicks on a Web site to place an order,
a contract is formed. If the offeror cannot fill the
order, then there would be a breach of contract.
IBLS, The Mailbox Rule (2001-2008), supra.
3. Was There A Counteroffer, Rather Than
Acceptance?
A counter-offer acts as a rejection and closes
the original offer. The original offer cannot be ac-
cepted at a future time. Counteroffers sent by elec-
tronic means are subject to the same rule as those
sent by hard copy: they are effective upon receipt,
not dispatch. The mailbox rule applies only to the
dispatch of an acceptance.
4. Did The Offeror Effectively Revoke The
Offer Before Acceptance?
If the offeror revokes the offer before accep-
tance, the offer has been destroyed and cannot be
accepted at a future time. As a rule, an offeror can-
not revoke an offer after acceptance, but exceptions
apply (e.g., for the purchase of goods found not to
conform to the agreement). Generally, revocation
of an offer is effective when received. This rule also
governs revocations sent electronically. Thus, if a
E-Legal Practice | 49
party sends an acceptance by email after the off-
eror sends an email revocation, but the offeree re-
ceives the revocation after sending the acceptance
(e.g., due to server delays), the offeror’s revocation
would be inoperative.
5. Was There A Rejection Before
Acceptance?
If the offeree rejects the offer, the offer has been
destroyed and cannot be accepted at a future time.
For electronic communications, a rejection is op-
erative when the offeror receives it.
6. Was There Consideration?
Consideration is the bargained-for exchange. It
is the legal benefit received by one person and the
legal detriment imposed on the other person under
the contract. Consideration typically takes the form
of money, property, or services. Typically, the issue
of whether consideration is adequate is unaffected
by the use of electronic media.
7. Was There Consent?
Consent means that each party to the contract
must agree to the terms of the contract. The law
presumes that a party has consented to a contract
by signing it or manifesting some other type of as-
sent, such as using a mouse to click on “I accept”
buttons in Web site dialog boxes on a computer
screen. The click of the “I accept” button is one
example of consent given in an “e-legal” manner.
Email presents another electronic avenue for pro-
viding consent. As recently as April 2008, the ju-
diciary held that a party consented to changes in
a contract that the plaintiff and defendant negoti-
ated in a series of emails, because the emails bore
each party’s typed name at the foot of his messages.
See Stevens v. Publicis, S.A., 50 A.D.3d 253 (N.Y. App.
Div. April 1, 2008).
50 | The Practical Litigator January 2009
8. If Required, Is The Agreement In
Writing And Signed By The Parties Who Are
To Be Bound?
All 50 states have enacted laws that generally
require a contractual agreement to be in writing
and signed by the parties who seek to be bound in
order for the agreement to be enforceable. These
laws are known as the “statute of frauds.” The typi-
cal statute of frauds includes contracts that involve
the sale of land, certain guarantee or surety con-
tracts, and contracts which by their own terms can-
not be performed within one year from the date
of their formation. In addition, the Uniform Com-
mercial Code (“UCC”) Article 2, which applies to
contracts for the sale of goods having a price of
$500 or more, requires a writing. Further, thou-
sands of other federal, state, and local statutes and
regulations require transactions to be documented
by a writing and a signature. See, e.g., Rep. of the
Nat’l Conf. of Comm’rs on Uniform State Laws,
Uniform Electronic Transactions Act, Task Force on State
Law Exclusions (Sept. 21, 1998).
Again, the Publicis case is instructive. Early this
year, the Publicis court found that contractual modi-
fications sent by email satisfied the requirements
in that case that contractual changes be “in writ-
ing” and “signed.” In a decision favorable to the
author’s colleagues at Reed Smith LLP (as counsel
for defendant), the court held that recorded emails
qualified as a document “in writing,” and the typed
name that appeared at the bottom of each party’s
email qualified as a signature. The court explained
that “plaintiff ’s name at the end of his email signi-
fied his intent to authenticate the contents.” Other
courts have also acknowledged that email commu-
nications can satisfy statutory requirements that a
contract be in writing and signed, including courts
in the First, Second, and Seventh Circuits.
Further, the courts have recognized that the
E-Sign Act provides that, in all transactions in or
affecting interstate commerce, a contract or other
record relating to the transaction shall not be de-
nied legal effect merely because it is in electronic
format. Case precedent establishes that neither the
common law nor the UCC requires a handwrit-
ten signature, and the sender’s name on an email
satisfies the signature requirement of the statute of
frauds. A review of case law reveals that whether
an email is “signed” likely will not turn on the lack
of a typed-in or inserted signature at the bottom
of the email, but on whether the language of the
email or procedures surrounding it are sufficient to
satisfy intent requirements. Raymond T. Nimmer
and Holly K. Towle, The Law of Elec. Commercial
Transactions, ¶418[4] (Aug. 2007), available at the
Westlaw Identifier Database “ECOMTR”.
Some courts may raise concerns about reliabil-
ity, questioning whether transactions that telegraph
a signature or affect the stages of contract formation
via electronic media are more subject to tampering
than paper transactions. These concerns should not
affect whether an electronic transmission qualifies
as a writing. Any such concerns should be relevant
only to authentication of a particular transmission
for evidence purposes.
Select The Claims Or Defenses To Raise
On Behalf Of The Client
Once a litigator determines that a valid con-
tract exists that can form the basis of civil claims for
damages, the litigator can determine which claims
or defenses to assert on behalf of his client. The
following is a non-exclusive list of potential claims
and defenses that a litigator can assert on behalf of
his client, depending on the circumstances of the
individual case. Generally, the same claims exist for
e-contracts as for traditional contracts.
Potential Claims
Potential claims or actions could include:
• Breach of contract;
• Breach of fiduciary duty;
• Breach of the covenant of good faith and fair
dealing;

• Tortious interference with contract;
• Declaratory judgment on obligations under the
contract;
• Specific performance;
• Fraud (including claims under consumer fraud
statutes);
• Misrepresentation.
Potential Defenses
Potential defenses include:
• No valid offer;
• No valid acceptance;
• No valid consideration;
• There was no consent;
• The contracting party was not competent to en-
ter into the contract (e.g., was below the thresh-
old age of 18, was mentally disabled, etc.);
• The contract is not in writing, as required by
the statute of frauds or other laws or regula-
tions;
• The agreement is not signed, as required by the
statute of frauds or other laws or regulations;
• The contract is voidable due to fraud;
• The contract is voidable due to duress or the
exertion of undue influence;
• The contract is void because it is against public
policy;
• Mutual mistake as to a material part of the
contract provides grounds for either party to
rescind or for a reformation;
• Unilateral mistake permits rescission under the
circumstances;
• Lack of standing or contractual privity to en-
force the contract.
Determine Whether Personal Jurisdiction
Is Appropriate offer, acceptance, counter-offer, rejection, revocation, or
In addition to contemplating the substantive
claims or defenses for his client, a litigator should
determine at an early stage where litigation may
properly proceed against the party adverse to his
client. The questions raised above regarding when
E-Legal Practice | 51
an electronic transaction effects an offer, accep-
tance, rejection, or rescission are also important for
assessing the propriety of a judicial forum. These
questions are important because courts resolve
questions of personal jurisdiction (see Erie Railroad
Co. v. Tompkins, 304 U.S. 64 (1938)), venue (see 28
U.S.C. §§1391, 1404), and conflict of laws (see Phil-
lips Petroleum Co. v. Shutts, 472 U.S. 797 (1985)) by
the place of a contract’s formation, performance,
or injury.
Under common jurisdictional principles, a
court may exercise personal jurisdiction over a par-
ty that does not reside in a forum when the non-
resident defendant creates minimum contacts with
the forum by purposefully directing his activities
at residents of the forum, and the litigation results
from alleged injuries that arise out of or relate to
those activities. Burger King Corp. v. Rudzewicz, 471
U.S. 462 (1985). Consequently, jurisdiction is prop-
er where the nonresident defendant has deliberate-
ly engaged in “significant activities” in the forum,
thus creating a “substantial connection” with the
forum such that the nonresident defendant should
reasonably anticipate being haled into court in the
forum. From an e-legal standpoint, litigators must
appreciate that when a client performs electronic
transactions, such conduct can constitute activities
in a forum, or establish a substantial connection
with a forum. Thus, litigators should rely on the
following guidelines to resolve the initial question
of whether personal jurisdiction over a party will
be proper in a given state:
• A party has sufficient minimum contacts with the state
from where the party sends electronic communications,
regardless of whether the transmission constitutes an
effort to rescind a contract. The sender typically is
deemed to be conducting business at the busi-
ness site that the sender uses to transmit such
emails. Similarly, a party has sufficient contacts
with the forum where emails originate when
52 | The Practical Litigator January 2009
those emails are used to commit a contract-re-
lated tort, such as intentional interference with
contract;
• A party has sufficient minimum contacts with the forum
where the party will perform its obligations under the con-
tractual agreement. For instance, if a party enters
into contracts with residents of a foreign juris-
diction that involve the knowing and repeated
transmission of computer files to or from that
forum, personal jurisdiction is proper;
• The party does not have sufficient minimum contacts
with the forum to which the party sends electronic com-
munications to negotiate or complete a contract based
on those transmissions alone. Email and telephone
communications, standing alone, do not provide
the “minimum contacts” required by due pro-
cess. The use of interstate lines of communica-
tion such as email, facsimiles, and telephones
is not automatically a purposeful availment of
the privileges of conducting commerce in a fo-
rum state such that a nonresident should antici-
pate being haled into court there. To establish
personal jurisdiction, the court must have juris-
diction based on other contacts related to the
agreement at issue, or have general jurisdiction
over the party based on the party’s unrelated
contacts with the state. In short, email and tele-
phone communications can be one factor that
supports the exercise of jurisdiction, but must
be accompanied by other contacts to justify
personal jurisdiction. Litigators should note
that contracting by email is distinct from send-
ing spam emails. A company that sends spam
emails is subject to personal jurisdiction in the
jurisdiction where the email is received;
• The courts’ approaches to email solicitations are not
unanimous. Litigators should be mindful that
some courts find that sending mail is sufficient
to establish jurisdiction over the sender in the
destination forum, where the email is related
substantively to the litigation. Some courts have
held that by sending an email solicitation to the
far reaches of the earth for pecuniary gain, one
does so at her own peril, and cannot then claim
that it is not reasonably foreseeable that she will
be haled into court in a distant jurisdiction to
answer for the ramifications of that solicitation.
In holding that a business purposefully directs
its conduct toward a state through an email so-
licitation, courts have emphasized that, in con-
trast to having an Internet Web site, the active
as opposed to passive nature of email weighs
in favor of finding personal jurisdiction in the
forum to which the email is directed;
• A party who simply places information on the Internet
does not subject himself to jurisdiction in each state into
which the electronic signal is transmitted and received.
A passive Web site that does little more than
make information available to those who are
interested in it is not grounds for the exercise
of personal jurisdiction. The internet Web site
must target users of the forum state, and the
use of the Internet Web site must engage the
party in such a way that the underlying transac-
tion that gives rise to the claim occurs as a result
of using the Web site. A court may exercise per-
sonal jurisdiction over a party where the party
forms contracts with persons in the forum state
via the party’s Web site. Where a Web site en-
gages a party in a way that a transaction gives
rise to the claim as a result of using the Web
site, courts find personal jurisdiction in the state
where the Web site user is located.
Determine Whether Venue Is Appropriate
In The Selected Or Preferred Forum
Upon determining that personal jurisdiction in
a given state is appropriate, a litigator can turn to
identifying which judicial district or districts are the
proper venue(s) for the suit under the venue provi-
sions of 28 U.S.C. §1391. A litigator must deter-
mine whether venue is proper in a particular forum
according to the following rules of law:

• Venue is proper in any judicial district where
any defendant resides, if all the defendants re-
side in the same State;
• Venue is proper in any judicial district in which
a substantial part of the events or omissions giv-
ing rise to the claim occurred, or a substantial
part of property that is the subject of the action
is situated;
• Venue is proper in any judicial district in which
any defendant may be found, if there is no oth-
er district in which the plaintiff can bring the
action;
• When jurisdiction is founded solely on diver-
sity of citizenship, venue is proper in any judi-
cial district in which any defendant is subject
to personal jurisdiction at the time the action
is commenced, if there is no other district in
which the plaintiff can bring the action;
• When e-contracts or e-signatures are at issue,
the first and third rules for establishing venue
remain straightforward, but the second and last
rules can raise questions about the propriety
of venue. The issues outlined earlier regarding
when an electronic transmission effects an offer,
acceptance, rejection, or revocation bear heav-
ily on where “a substantial part of the events
or omissions giving rise to the claim occurred,”
and on whether there have been sufficient con-
tacts with a jurisdiction for “any defendant [to
be] subject to personal jurisdiction at the time
the action is commenced”;
• Venue may be proper in the jurisdiction from
which a party sends an electronic transmission,
e.g., where an email originates;
• Venue may be satisfied by a communication
sent from the district in which the party filed
its claim, when there is a sufficient relationship
between the communication and the claim;
• Likewise, venue may be satisfied by a commu-
nication to the district in which the party filed
its claim, when there is a sufficient relationship
between the communication and the claim;
E-Legal Practice | 53
• Venue may be proper in the jurisdiction in
which a party negotiates the terms of a con-
tract by directing email communications to that
jurisdiction, or where a party directs an offer.
In assessing whether venue may be appropri-
ate in the district in which a recipient receives
emails that contain contract terms or proposals,
this guideline assumes that the email recipient
receives the communication in a location where
the recipient is expected to receive such com-
munications. Where, for example, a recipient
accesses electronic communications while in
transit (e.g., in an airport, in flight, on a train,
or in a hotel room), venue may not be appropri-
ate based on the place of receipt alone;
• Venue is not proper in districts that email com-
munications “pass through.” Specifically, when
the events giving rise to the litigation took place
in one state, but emails related to the events
passed through a computer server in another
state, venue is not proper in the latter state. The
passage of emails through a state is too tenuous
a connection for the purposes of establishing
venue;
• Venue is not appropriate when an electronic
communication consists of only a solicitation
for business. The mere solicitation of business
in a particular county by email does not amount
to conducting business.
COUNSELING CLIENTS E-LEGALLY FOR
E-CONTRACTS OR E-SIGNATURES • Liti-
gators should not only use the litigation guidelines
and law set forth above as checklists for litigation,
the litigator should also use the guidelines to teach
clients about how to e-contract efficiently and in
a self-protective manner, to avoid pitfalls in e-con-
tracting and e-signing, including the costly burden
and expense of litigating e-contract matters.
For instance, the guidelines discussed above re-
garding jurisdiction and venue can educate clients
regarding their potential vulnerability to suit in
54 | The Practical Litigator January 2009
jurisdictions beyond their principal places of busi-
ness. For example, a litigator may instruct his client
that a Web site that provides information about the
client’s company, and that is accessible from any
computer that has Internet access, is likely insuf-
ficient to establish the minimum contacts necessary
to subject the client to personal jurisdiction in any
jurisdiction where a user can access the Web site. A
client may be subject to personal jurisdiction, how-
ever, if the client’s Web site contains language aimed
at soliciting the business of users that access the
site. The scope of the personal jurisdiction would
depend on the market that the Web site targets, i.e.,
whether the client’s Web site targets local, regional,
or national users that access the site. When a Web
site solicits business, the Web site constitutes an ef-
fort to distribute goods or services into the stream
of commerce of the targeted jurisdictions, thereby
subjecting the client to personal jurisdiction for the
client’s general contacts with the jurisdiction.
Contract formation via Web sites is another
subject for client counseling. Typically, Web site
point-and-click agreements require an offeree to
manifest his or her unequivocal acceptance of the
terms of the agreement, as stated, simply by point-
ing and clicking on an icon labeled “YES,” “I AC-
CEPT” or “AGREED.” Potential legal issues can
arise even at this early stage of e-contracting. If, for
example, the user accidentally clicks on the wrong
icon, the offering party would naturally deem this
an acceptance of the agreement and proceed to
perform its terms. Therefore, attorneys should
counsel merchant clients that they should require
their online customers to confirm their acceptance
of the agreement to avoid the defense of “acciden-
tal acceptance.” A client may, for example, require
customers to click on a second icon or to type in
certain information as part of the acceptance pro-
cess. Shelley M. Liberto, Virtual Contracts: Don’t Point
and Click Your Way Into a Lawsuit, WWWiz Maga-
zine (Oct. 1997), available at http://wwwiz.com/
isue14/f02.html.
The Stevens v. Publicis case described above fuels
additional important counsel to impart. The case
presents a cautionary tale for clients. The agree-
ment in Publicis required that any modification be
signed by all parties. The Supreme Court for New
York County held that the recorded emails satisfied
the “writing” requirement, and the typed name
of the parties at the end of their emails satisfied
the signature requirement. Accordingly, litigators
should counsel their clients to add language in na-
ture of the following to the customary clause re-
quiring amendments to be in writing:
Electronic mail, including electronic mail that bears an elec-
tronic “signature block” identifying the sender, does not con-
stitute signed writings for purposes of this agreement.
Otherwise, clients run the risk of an email ex-
change resulting in an unintended amendment to
the agreement.
Additional general advice regarding email ex-
changes is to keep track of the final exchanges in
the negotiation process to ensure that all parties
understand each other’s intent. It is not unusual
for parties to engage in protracted negotiations
and exchanges before finally arriving at a common
ground. Only the final offer that a party accepts
will create the binding agreement. Unless the last
email transmission by the offering party is complete
in all of the terms discussed beforehand, a dispute
may arise as to which terms the offeree accepted. A
court might be required to discern a single agree-
ment by referring to a series of email transmissions.
Thus, the need to maintain complete and accurate
electronic records is very important for contracts
formed by email. The same is true for contracts
formed by point-and-click transactions. Liberto,
supra.
Further, litigators should counsel their clients
that the ability to generate hardcopies of virtual
deals is critical. A litigant will have to prove the ex-
change of communications regardless of whether

one is seeking to enforce, interpret or avoid a con-
tract. Hardcopy documentation is not absolutely
necessary, but a party’s reliance solely on oral tes-
timony as to communications and conduct will
create evidentiary problems. Therefore, a litiga-
tor should inform his client that the client should
maintain electronic records of point-and-click and
email communications that can be converted to
hardcopy. Hardcopies generated from email ex-
changes will carry more weight if the data is stored
by a third party and contains electronic safeguards
against alteration or deletion of messages. The use
of hardcopy evidence of electronic dealing will re-
quire testimony of the authenticity of data in terms
of date of entry, manner of entry, and method of
retrieval. Liberto, supra.
Aside from the focused advice that litigators
can derive from the e-contracting guidelines above,
clients may have general questions about whether
to rely on e-contracting in their businesses, or how
to do so. Three fundamental questions arise when
considering e-legal issues:
• Is it legal?
• Can the client trust the message? and
• What are the rules of conduct?
See Thomas J. Smedinghoff & Ruth Hill Bro,
Electronic Signature Legislation, FindLaw (Jan. 1999),
available at http://library.findlaw.com/1999/Jan/
1/241481.html.
Is It Legal?
Many clients may be concerned that e-contracts
and e-signatures may not meet federal and state
law requirements that transactions be documented
in “writing” and be “signed.” As discussed earlier,
courts are finding that electronic transmissions sat-
isfy the writing and signature requirements. As long
as the transmission can be recorded and reduced
to tangible form, and as long as the transmission
evinces a party’s intent to be bound by the com-
munication, a recorded electronic communication
E-Legal Practice | 55
is legal as a “writing,” and any symbol that a party
uses to represent the party’s intention to authenti-
cate the communication is a legal “signature.”
Can The Client Trust The Message?
Some electronic media are more susceptible
to tampering than others. Clients want to know
whether it is safe to rely on electronic messages and
enter into legal commitments to provide a service,
ship products, transfer funds, extend credit, or enter
into any other commitment. Trusting an electronic
message requires consideration of the authenticity
of a message, its integrity, the ability to prevent a
sender from denying that he sent the message and
the ability to foreclose claims that the message ul-
timately received has been altered. For instance,
a typewritten name inserted at the bottom of an
email qualifies as a signature, but a defendant can
deny that he was the one that inserted his name.
Some statutes that deal with electronic com-
munications address the trust issue, building in an
evidentiary presumption regarding a sender’s iden-
tity and the integrity of the message, setting forth
required attributes for a transmission to be enforce-
able, or identifying a class of trustworthy electronic
communications or signatures. Most electronic sig-
nature statutes, however, do not address the trust
issue at all. In the absence of a statute, it can be
difficult for a plaintiff to prove the authenticity of
the signature.
Thus, a litigator should consider counseling
clients to weigh risks. When the amount at issue
is small or there is low risk, a client can be more
inclined to trust in the electronic message’s authen-
ticity and integrity. Yet, when the risk is higher, au-
thenticity and integrity are more critical issues. In
such cases, the litigator should consider counseling
the client against relying on electronic communi-
cations, and toward relying on more time-honored
communications instead (e.g., hardcopy mail or
facsimile). When a client is inclined to employ and
rely upon electronic communications regardless of
56 | The Practical Litigator January 2009
the size or the extent of the risk, litigators should
counsel clients that the client needs to know at the
time of reliance whether the message is authentic,
the integrity of its contents is intact, and the rely-
ing party can establish both of these facts in court
if a dispute arises. See Smedinghoff & Bro, Electronic
Signature Legislation, FindLaw.
What Are The Rules Of Conduct?
In many ways, the rules for e-contracting are
similar to the rules for paper-based contracting. In
some instances, however, issues arise that a litiga-
tor cannot answer easily by extending traditional
contract law. For example, if one party to an agree-
ment prefers to use electronic means to express
agreement and finalize a contract, but the client
does not want to rely on electronic authentication
(or vice versa), the client may question whether the
client is required to defer to the other party’s au-
thentication choice. The answer is “no”; the client
is not required to consent to electronic authentica-
tion. Section 6 of the Digital Signature And Elec-
tronic Authentication Law of 1998 (“SEAL”) states
that an electronic authentication may be used only
if both parties agree to use them.
An example of another e-legal issue for a client
is how a business (e.g., a financial institution) must
conduct itself it if wishes to provide to consumers
electronic disclosures exclusively, in lieu of written
disclosures. The E-Sign Act permits a financial in-
stitution to issue electronic records to consumers
to satisfy any statute or regulation that requires
that such information be in writing, as long as the
consumer consents. Yet, before a consumer can be
deemed to consent, the financial institution must
provide information to the consumer regarding the
consumer’s rights and options. See E-Sign Act, Title
1, Section 101(c)(1), 15 U.S.C. §7001 (c)(1).
The E-Sign Act and SEAL are just two of the
many state, federal, and international statutes that
legislators have enacted to respond to e-legal issues.
As described above, others include UETA, GPEA
and the United Nations’ E-Contracting Conven-
tion. Thus, when an e-legal issue arises, litigators
seeking to represent their clients proficiently should
refer to the statutes crafted to deal with e-legal is-
sues specifically, rather than attempt to deduce the
appropriate result under traditional contract law.
That is not to say that legislators and the courts
have anticipated all e-legal issues and set forth rules
accordingly. Undoubtedly, there will continue to be
matters of first impression that confront litigators
and the courts. Yet the body of e-legal statutes and
regulations provides a finer reference point to ascer-
tain the best legal approach than the body of tra-
ditional contract law, which has not accounted for
many issues generated by electronic technology.
CONCLUSION • As e-contracting becomes more
and more the norm, litigators must be equipped
to counsel their clients about how they can best
conduct themselves in their business transactions.
Today, litigators should be prepared to advise as
to when it is appropriate to use an e-signature to
effect the equivalent of a digital handshake, ver-
sus the circumstances in which the traditional sig-
nature inked by hand is more judicious. Litigators
should also be prepared to represent their clients
in litigation when e-contracting or the general use
of electronic media results in claims against the cli-
ent, or incites a client to seek civil damages for an
injury. The best way to approach e-legal issues is to
be mindful of the nuances of contract law that are
unique to electronic behavior. Accordingly, litiga-
tors should use this article and the many state, fed-
eral, and international laws concerning electronic
transactions to ensure that their clients are engag-
ing in e-legal behavior.
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