[co-author: Jenna Jacobik]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 foun

The plaintiff then filed an affidavit in which he contradicted the statements contained in his previously filed verified response to the status report. The court accorded the plaintiff’s response to the defendant’s status report the same weight as his later-filed affidavit because the response was made under penalty of perjury and otherwise complied with the requirements of 28 U.S.C. section 1746. That statute provides that unsworn declarations under penalty of perjury are afforded the same weight as a sworn declaration, verification, certificate, statement, oath, or affidavit.

subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit.Before this amendment, only certain non-party New York licensed professionals—namely, attorneys, and certain health-care professionals—and individuals physically located outside the United States could submit affirmations in lieu of affidavits. The new CPLR 2106 has removed these requirements. Any person—whether a party to the litigation or not—can now provide an affirmation in lieu of an affidavit so long as their affirmation contains the following language:I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.This amendment allowing for affirmations in place of affidavits is like the federal statute, 28 U.S.C. 1746, which allows the use of unsworn declarations under the penalty of perjury. This is a welcome change to many, as it will spare your client the time, cost, and inconvenience of obtaining a notary.But this rule change raises many other questions. For one, how does it impact the other sections of the CPLR that refer to affidavits? For example, certain CPLR sections authorize the use of affidavits to be submitted in support of pleadings (i.e. CPLR 403[b]) and motions (i.e. CPLR 2214[b], CPLR 3212[b], CPLR 3215). Can a party affirmation now be submitted in place of a fully-executed affidavit? A recent article by Professor Patrick M. Connors entitled CPLR 2106 Amended To Permit Any Person To Submit Affirmation in Lieu of Affidavit appears to answer that question in the affirmative.Second, how does this rule change impact verifications of pleadings by affidavit? Under CPLR 3020(d) and 3021, a verification must be accompanied by affidavit of a party or nonparty. Professor Connors reasons that

e persons who may be faced with difficulties in locating a notary or obtaining New York equivalent notarizations in foreign jurisdictions, an issue often arising in major commercial litigation.When the amendment comes into effect, CPLR 2106, entitled “Affirmation of truth of Statement” will provide as follows:The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.(Signature)The use of an affirmation in place of an affidavits for all purposes in a civil action is modelled upon the federal statute (see 28 U.S.C. 1746), which allows the use of unsworn declarations under penalty of perjury—a practice that has been in place since 1976.This change in civil litigation will alleviate the burden of preparing documents such as witness statements that must be submitted in court. Naturally, something may be lost in not requiring a witness to go through the formality of involving a notary public. Despite removing the need for a notary public, CPLR 2106 will require for the signer to affirm the statement under the penalties of perjury.[View source.]

henko 764 F.3d 266, 272 (2d Cir. 2014) (applying Morrison holding to the Commodity Exchange Act); SEC v. Ripple Labs, Inc., et al., 1:20-cv-10832-AT-SN (March 11, 2022) (applying Morrison to determine if a “sale” of unregistered securities occurred in the United States under Securities Act Section 5); SEC v. Tourre, 2013 WL 2407172, at *4 (S.D.N.Y. June 4, 2013) (applying Morrison to Securities Act Section 17(a)).Choi v. Tower Research Capital LLC, 890 F.3d 60 (2018) (finding that irrevocable liability was plausibly incurred in the United States for orders for futures contracts submitted in a foreign country and subject to the laws of a foreign exchange, but that were nonetheless executed using a matching engine operated in the United States).E.g., CFTC v. Laino Group Ltd., No. 20-3317 (S.D. Tex. Sept. 24, 2020); see also CFTC v. Monex Credit Corp., 931 F. 3d 966 (9th Cir. 2019).Declaration in Support of Plaintiff’s Motion for Alternative Service Against Defendant Ooki DAO Pursuant to 28 U.S.C. § 1746, CFTC v. Ooki DAO, No. 3:22-cv-5416 (Sept. 27, 2022).See Paul Kiernan and Vicky Ge Huang, Ether’s New ‘Staking’ Model Could Draw SEC Attention, WALL ST. J., Sept. 15, 2022, https://www.wsj.com/articles/ethers-new-staking-model-could-draw-sec-attention-11663266224?mg=prod/com-wsj.Further Definition of “As a part of a Regular Business” in the Definition of Dealer and Government Securities Dealer, 87 Fed. Reg. 23,054 (April 8, 2022).Dissenting Statement of Commissioner Summer K. Mersinger Regarding Enforcement Actions Against: 1) bZeroX, LLC, Tom Bean, and Kyle Kistner; and 2) Ooki DAO (Sept. 22, 2022).

This declaration is sworn testimony, meaning that you can be prosecuted, go to jail, or pay a fine if you lie, mislead, or omit important information.I certify under penalty of perjury, pursuant to 28 U.S.C. 1746, that the foregoing are true and correct:I have used best efforts to obtain all available government assistance for rent or housing;I either expect to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act.I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses.I am using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses.

In many places, that is not currently an option given COVID-19.Lawyers working in federal court have long relied on the ability to substitute declarations for notarized affidavits in federal proceedings. Under 28 U.S. Code § 1746, any affidavit requirement can be met by signing with the following declaration: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.” Per the statute, the words “under the laws of the United States of America” are only necessary if the declaration is signed outside of the United States.

Integration Points also substitute for Relativity Desktop Client in importing load files or Office 365 directories into a workspace.5/12/2020: N.D. Cal. 26(f) ESI Checklist The United States District Court for the Northern District of California has posted a checklist on its site, for parties to consult when addressing ESI issues at Rule 26(f) meet and confer.5/13/2020: Draft Declarations – 28 U.S.C. § 1746 When filing a declaration in federal court, reference 28 U.S.C. § 1746 which provides that a matter may be supported by an unsworn declaration as being true under the penalty of perjury.5/14/2020: Excel formula to parse out Nth words in cell The number of the string to be extracted is referenced in cell $B1=TRIM(MID(SUBSTITUTE($A2,” “,REPT(” “,LEN($A2))), (B$1-1)*LEN($A2)+1, LEN($A2)))Cell $A2 references the cell with multiple strings that is to be reviewed.

ndent made to comply with the Order; and (e) provide a copy of each Acknowledgment of the Order obtained pursuant to this Order, unless previously submitted to the Commission.Respondent must submit a compliance notice, sworn under penalty of perjury, within 14 days of any change in the following: (a) any designated point of contact; or (b) the structure of Respondent or any entity that Respondent has any ownership interest in or controls directly or indirectly that may affect compliance obligations arising under this Order, including: creation, merger, sale, or dissolution of the entity or any subsidiary, parent, or affiliate that engages in any acts or practices subject to this Order.Respondent must submit notice of the filing of any bankruptcy petition, insolvency proceeding, or similar proceeding by or against Respondent within 14 days of its filing.Any submission to the Commission required by this Order to be sworn under penalty of perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by concluding: “I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on: _____” and supplying the date, signatory’s full name, title (if applicable), and signature.

These procedures require that every petition, pleading, motion and other paper served or filed contain signatures in the format of either “/s/ Jane Doe” or “s/ Jane Doe.” The procedures also require the filer to maintain the originally executed document, presumably with a wet signature, for all “petitions, lists, schedules, statements, amendments, pleadings, affidavits, stipulations and other documents which must contain original signatures, documents requiring verification under Federal Rule of Bankruptcy Procedure 1008, and unsworn declarations under 28 U.S.C. § 1746” for the later of two years or the entry of a final order terminating the case or proceeding.The United States Bankruptcy Court for the Northern District of Illinois, on the other hand, has adopted administrative procedures that distinguish between original non-attorney signatures and original attorney signatures. Generally, the original signature of a non-attorney is to be scanned and included in the filing.