“Despite the fact that civil law, civil procedure and arbitration procedure partly affect the use of electronic documents, most of them, unfortunately, are outside the legal regulation,” says Nikita Filippov. The practice of accepting electronic documents as evidence, eg in terms of retrieval, certification, evaluation. At the same time, not everything is as unequivocally bad as it seems at first glance, and it is necessary and tactically expedient to submit electronic documents to the court to substantiate one’s legal position.”
According to him, first of all, it is important to understand and take into account that the Civil Code provides for the possibility of concluding a written contract in electronic form, for example, through the exchange of letters, telegrams, electronic documents. The main thing is that the technical means make it possible to reproduce the content of the transaction on an unchanged material carrier.
“At the same time, the requirement of having a signature is considered fulfilled if any method is used that makes it possible to reliably identify the person who expressed the will,” says the vice-president of the Russian Lawyers Guild. As an example, he cited the case when the arbitration court of the appellate instance did not agree with the decision of the court of first instance on the non-conclusion of an employment contract, recovering the amount of the client’s debt in favor of the contractor. The second instance recognized the agreement as concluded, accepting as evidence the notarial examination protocol of the electronic correspondence of the parties.
“Another example of recognition of the contract as concluded is the legal position of the Supreme Court of the Russian Federation, which sent the case to a new trial, since the lower courts mistakenly did not accept the protocol of notarial examination of the parties as adequate evidence. ‘ electronic correspondence, according to which the plaintiff sent a letter from his email address to the defendant’s email address with the scanned signed contract, in response to which the defendant sent a confirmation of receipt of this contract and a second scanned page of the contract signed by the defendant”, says Nikita Filippov.
In turn, Rashid Gitinov, head of the dispute resolution practice with state bodies at the De Jure Law Office, argues that Russian procedural law does not provide clear specific criteria for the reliability of an electronic document and, therefore, the development of such criteria. is carried out by judicial practice.
“Electronic documents can be conditionally divided into two types,” he says. “First: documents that are certified by an electronic signature. There are no problems with their use as evidence in judicial practice. Second: simple electronic documents that require confirmation of their objectivity, reliability and admissibility.”
These, according to him, may include, for example, electronic correspondence via email, in relation to which there are contradictory approaches in judicial practice. “Unfortunately, there are many cases in judicial practice when courts refuse to recognize electronic correspondence as evidence only with reference to the fact that such a method of document flow was not fixed by agreement,” says Rashid Gitinov. “In this sense, it is advisable to include in the text of the agreement when concluding the provisions that the flow of documents between the parties is appropriate and recognized by the parties also through email correspondence, with the mandatory indication of the addresses email address of the parties for the agreement.
Another type of electronic documents are instant messaging messages, SMS messages. “The legal characterization and use of these messages as electronic evidence can be based on the definition of the concept of electronic messages, which is given in the Federal Law “On Information, Information Technologies and Information Protection”, as mentioned above. , – continues the head of the practice of resolving disputes with the state – At the same time, the judicial practice of using messenger messages as electronic evidence, as they say, “keeps up”, and there are more than enough examples of this, including regardless of the type of messenger: WhatsApp, Viber, Skype”.
An important condition for the use of electronic documents in litigation for further evaluation and acceptance by the court as written evidence is to ensure that electronic evidence meets the criteria of objectivity and reliability, says Rashid Gitinov.
One of the most popular ways to provide electronic evidence is the notarial one, which, according to the experts, consists of preparing a notarial inspection protocol and a screenshot of pages, for example, electronic correspondence (email, instant messaging messages , SMS messages), contact details of the participants in a dispute, content of the Internet -site.
“Regarding the question of competition between electronic evidence and other written evidence, it should be noted that electronic evidence, despite the specific features of ensuring its reliability and admissibility, has effective and comprehensive probative potential,” says Rashin Gitinov. . controversial emerging jurisprudence regarding the evaluation and recognition of electronic evidence as reliable and admissible, a competent professional approach to the issue of collection, protection and presentation of electronic evidence is the key to successful judicial resolution of the dispute, regardless from what evidence his procedure the opponent operates.
An interesting example from practice. In one of the cases, the lawyers from the law firm managed to confirm with evidence the possession of the defendant’s assets. One such piece of evidence was a photo of the defendant against the background of the controversial furniture – the “Italian Renaissance” living room (wood of valuable species), posted by him on social networks. The photographs turned out, of course, beautiful, but the court no longer believed the defendant’s assertion that he did not have this living room and never did.