14.09.2012

Use in court as evidence of facsimile copies and documents transmitted through email(in scanned form)

Over the past few decades, the achievements of the scientific and technical sphere have rapidly changed the life of modern man. New means of communication, means of recording, storing, reproducing information have appeared. These achievements could not remain unintegrated into the socio-economic sphere and, accordingly, could not affect the legal superstructure. IN otherwise the stability of civil circulation would be violated by the lack of legal regulation of the newly emerged social relations.

In accordance with paragraph 2 of Article 160 of the Civil Code of the Russian Federation (hereinafter referred to as the "CC RF"), “The use of facsimile reproduction of a signature by means of mechanical or other copying, electronic signature or other analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or by agreement of the parties.”

In accordance with paragraph 2 of Article 434 of the Civil Code of the Russian Federation, “A contract in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents by postal, telegraph, teletype, telephone, electronic or other connections, allowing to reliably establish that the document comes from the party under the contract.

Thus, the current legislation of the Russian Federation allows the execution by the parties of civil legal relations of transactions using facsimile reproduction of a signature by means of mechanical or other copying, electronic signature or other analogue of a handwritten signature, i.e. electronic document exchange.

In addition, the Arbitration Procedure Code Russian Federation(hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) fixed the admissibility of electronic documents as a means of proof. So, in accordance with paragraph 3 of Article 75 of the Arbitration Procedure Code of the Russian Federation, « Documents received by facsimile, electronic or other communication, including using the Internet, as well as documents signed electronic signature or other analogue of a handwritten signature, are allowed as written evidence in the cases and in the manner established by this Code, other federal laws, other regulatory legal acts or an agreement, or determined within its powers by the Supreme Arbitration Court of the Russian Federation "(a similar provision is contained in paragraph 1 of Article 71 of the Civil Procedure Code of the Russian Federation).

Thus, the legislation of the Russian Federation provides the opportunity to use facsimile copies and documents transmitted via e-mail (in scanned form) as material evidence.

Meanwhile, at present, when resolving disputes by courts arising from civil legal relations drawn up by exchanging documents via facsimile or the Internet, the courts do not have a unified position on the issue of classifying "fax" and electronic documents as admissible evidence.

An analysis of the existing judicial practice, in terms of attaching facsimile copies of documents and documents transmitted via e-mail (in scanned form) to the court case and their examination as evidence, allows us to draw the following conclusions:

1. Facsimile copies of documents and documents transmitted via e-mail (in scanned form) are regarded by the court as evidence in the case, provided that there is a clause in the contract / agreement, according to which these copies have the status of originals.

The legitimacy of the stated position is confirmed by existing judicial practice, incl. Decree of the Federal Antimonopoly Service of the North-Western District of June 1, 2010 No. A56-13328 / 2009, Decree of the Federal Antimonopoly Service of the Urals District of December 13, 2010 No. Ф09-10256 / 10-СЗ, Resolution of the Seventeenth Arbitration Court of Appeal of January 27, 2011 No. AP-13499 /2010-GK, Decree of the Federal Antimonopoly Service of the Far Eastern District of August 13, 2009 No. F03-3794/2009, Determination of the Supreme Arbitration Court of the Russian Federation of February 7, 2008 No. 653/08 in case No. A09-8896 / 06-4.

2. Screenshots, printouts of electronic postal items are not appropriate and indisputable evidence in court.

The legitimacy of the stated position is confirmed by existing judicial practice, incl. Decree of the Federal Antimonopoly Service of the Moscow District dated February 3, 2011 No. KG-A40 / 210-11.

3 . Copies of letters received by e-mail are evidence in court, provided that the other party does not provide the court with dissimilar copies and if it is possible to establish the true content of the original source with the help of other evidence.

The legitimacy of the stated position is confirmed by existing judicial practice, incl. Decree of the Federal Antimonopoly Service of the Volga District dated September 15, 2010 in case No. A12-23661 / 2009.

An analysis of the practice of considering disputes by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation on the issue of the admissibility of electronic documents and documents transmitted by facsimile, allows us to conclude that the specified documents are evidence in the trial, provided that the procedure for exchanging documents via a facsimile communication device or via the Internet is provided for by the contract concluded between the parties .

Thus, the analysis of judicial practice allows us to distinguish three types of documents (in addition to the originals) confirming the conclusion and execution of the relevant agreements:

Copies of documents sent by fax;

Copies of documents transmitted in scanned form using the Internet;

Screenshots, printouts of e-mails (e-mail notifications).

Meanwhile, in order to protect their rights when doing business, the process of concluding and executing the relevant agreements must be accompanied by the exchange of only original documents.

However, when concluding and executing contracts by exchanging facsimile copies of documents or electronic documents and in order to minimize risks, we recommend the following:

1. In the text of the main agreement:

Provide for the possibility of transferring documents by fax or e-mail;

Set such documents as originals;

Specify information about the fax number and e-mail addresses by which documents will be exchanged;

2. Organize the maintenance of registers of incoming and outgoing correspondence sent and received by facsimile and electronic communications.

3. Set the exact time and current date in the fax settings.

If the fax function is available to create reports on received and sent messages, print out such reports and file them into the log of incoming and outgoing correspondence.

4. Draft documents submitted to the counterparty for approval should be sent without the signature of an authorized person.

5. In accordance with the tax legislation and the legislation on accounting, the primary documentation drawn up in the course of the execution of the relevant agreement must be presented only in the form of original documents.

6. The text of the main contract, additional agreements to the contract, as well as the agreement on termination of the contract must be presented in originals.

The procedure for the exchange of electronic documents, as well as "fax copies" of documents must be agreed upon by the Parties and fixed in the Agreement. The possibility of using “non-original” documents in resolving disputes between the parties depends on the competent wording of these conditions.

It should be noted that in practice there are cases when unscrupulous counterparties forge signatures and seals affixed by another counterparty in an electronic document, and also change the text of the contract, including conditions unfavorable for the counterparty.

In this connection, when resolving a dispute in court, the parties submit to the court non-identical copies of the same document, i.e. the same document signed by the parties containing different conditions.

In this case, it is practically impossible for the court to determine which party provided the original copy of the document.

According to paragraph 6 of Article 71 of the Arbitration Procedure Code of the Russian Federation, "Court of Arbitration cannot be considered proven fact, confirmed only by a copy of the document or other written evidence, if the original document is lost or not submitted to the court, and the copies of this document submitted by the persons participating in the case are not identical to each other and it is impossible to establish the true content of the original source with the help of other evidence.

Based on this rule, copies of the document will not be considered by the court as evidence in the circumstances specified above.

Meanwhile, the fact of falsification of documents transmitted by e-mail or fax can be established through a forensic examination.

According to the information received from Izhevsk Expert Bureau LLC, there are several methods for detecting forgery of documents in the described case:

1. chemical analysis of the signature on a paper copy of the contract;

2. analysis of the print impression.

It should be noted that the probability of detecting forgery of documents by these methods is not high.

Despite the risks described in this opinion from the execution of contracts by exchanging copies of documents by facsimile or electronic communication, there is a way to protect against illegal actions of counterparties, expressed in the forgery of signed documents.

Article 2 federal law dated 06.04.2011 No. 63-FZ “On Electronic Signature” (hereinafter referred to as the “Signature Law”), an electronic signature is information in electronic form that is attached to other information in electronic form (signed information) or is otherwise connected with such information and which is used to identify the person signing the information.

According to part 1 of article 6 of the Signature Law, “Information in electronic form signed with a qualified electronic signature is recognized as an electronic document equivalent to a paper document signed with a handwritten signature, except if federal laws or regulations adopted in accordance with them establish a requirement that the document be drawn up exclusively on paper ".

In accordance with Article 5 of the Signature Law, a qualified electronic signature is an electronic signature that meets the following criteria:

1. obtained as a result of cryptographic transformation of information using an electronic signature key;

2. allows you to identify the person who signed the electronic document;

3. allows you to detect the fact of making changes to an electronic document after the moment of its signing ;

4. is created using electronic signature means;

5. the electronic signature verification key is specified in the qualified certificate;

6. To create and verify an electronic signature, electronic signature tools are used that have received confirmation of compliance with the requirements established in accordance with the Law.

Thus, the use of an electronic signature when concluding contracts by exchanging “fax” copies of signed documents or electronic documents makes it possible to detect the fact of making changes to an already signed document, which is a guarantee of the security of a party in a lawsuit in the event of a dispute.

In addition, an electronic document signed with a qualified electronic signature is recognized as equivalent to a paper document signed with a handwritten signature.

IN Microsoft Outlook You can specify that for all messages you send, an automatic Bcc (copy) will be sent to other mailing lists or users.

One scenario in which this rule is useful is when responding to all members of a group to respond to incoming email messages, such as Help Center. When one member of the group responds to messages, the other group members automatically receive a copy of the reply, keeping all outgoing messages up to date.

client rules

Create a rule

Now every time you send a message, be it a new message, forward a message or reply to the people or groups that are specified in the rule, they will automatically be added as recipients of the copy. Names of people or groups are not displayed in the "CC" line Compose the message, but these names will be displayed to all recipients of the message.

Disabling a rule

In the Mail view on the tab home press the button regulations > Manage rules and alerts.

On the tab in the section rule

Click the button OK.

Rules and Alerts.

Advice: additional information how to quickly disable this rule for individual messages, see the next section ("").

Using a Category to Disable Automatic Cc Sending for Individual Messages

If you want the flexibility to disable automatic new copy rules based on a single message without having to navigate through the dialog box rules and alerts, you can use the categories feature in Outlook along with the rule.

Advice:

First you need to create an auto-send rule hidden copy(Cc) for all email messages sent.

This particular rule is called client rules. The client rule runs only on the computer on which it is created and runs only when Outlook is running. If you were to send an email using account e-mail on another computer, the rule will not run from that computer, so it will be created on this computer. This same rule must be created on each computer that you plan to use it.

Create a rule

Now, every time you send a message, whether it's a new message, when you forward the message or reply to people, or the distribution lists specified in the rule will be automatically added as recipients of the copy. Names of people or distribution lists are not displayed in the "CC" line Compose the message, but these names will be displayed to all recipients of the message.

Disabling a rule

To prevent the automatic copy from being sent, you must first disable the rule.

In Mail in the menu Service press the button Rules and Alerts.

On the tab Email Rules in section rule uncheck the box corresponding to the rule you created.

Click the button OK.

You can now send a message without automatically sending a copy of it to other people or mailing lists. The rule will be inactive until it is re-enabled in the dialog box Rules and Alerts.

Advice:

Using a Category to Disable Automatic Cc Sending for Individual Messages

If you want to disable the new auto-copy rule for individual messages without opening a dialog box Rules and Alerts, you can set the rule to a category that is available in Office Outlook 2007.

Modify the rule you created earlier so that when you add the specified category to a message, the rule does not automatically send a copy.

When you want to disable the auto-copy rule for a message, apply a category to it.

Advice: You can use a keyboard shortcut if you specified it when creating the category.

When a message is sent, the automatic send copy rule will not be applied.

When it comes to the question of sending a telegram through the Russian Post, many people remember the queues as in Soviet times. But with development computer industry and its introduction into the postal sphere, it became possible to send a telegram by Russian Post to online mode without queues and unnecessary nerves. Now there is no need to adapt to the mode of operation of the post office, and waste time. There is sending and payment in a way convenient for you. A telegram is a message from text, the transmission of which is carried out via telephone.

To send a telegram, you now need any device such as a smartphone or tablet with Internet access. Either Personal Computer connected to the Internet. You can send from anywhere and at any time convenient for you.

To send, you need to go to the mail site, register and find the section with the form for sending a telegram, fill in all the fields. We indicate all the data on the recipient and sender, then enter the text of the letter, then proceed to the choice of payment method. So, sending a telegram by Russian Post via the Internet is as easy as shelling pears.

After finishing writing the text, the program automatically reads the number of words and, based on this, forms the cost of the telegram. You can pay for the service by transfer Money from a phone, WebMoney or Yandex.Money. If necessary, you can get copies of the telegram, as well as notifications.

Many, having learned that there is such a method of sending, remember their failures and the time and nerves spent.

The question arises if everything is so easy and simple, how much does it cost to send a telegram by Russian Post?

The tariffs for sending a telegram are very different, it all depends on the type of telegram being sent:

• The price of sending a regular, non-urgent telegram through the Russian Post for one word is 2.8 rubles, as for an urgent one - 4.10 rubles. for one word;
• The tariffs for the provision of telegrams are: in the case of regular and non-urgent 13 rubles. per word, urgent - 22 rubles;
• For telegrams of other varieties, such as out of category, extraordinary, are paid for the usual non-urgent in the amount of 85 rubles. for the word;
• Tariffs for telegrams delivered to places of residence where there is no telegraph and telephone connection, as well as with the mark "custom", is 40 rubles. for one word;
• The cost of notification of the delivery of telegrams by telegraph, for the usual non-urgent 189 rubles. per word, urgent 231 rub. for the word;
• When registering, as well as re-registering the telegram delivery address, the subscriber pays 1500 rubles. per year.;
• The price of certified telegrams is 281 rubles;
• As for copies of telegrams, which are issued upon application, their price is 84 rubles. for 100 words;
• Telegrams, which are written in Russian and Latin script, are paid in the amount of 20 rubles. for the word.

Today, courts often accept electronic correspondence as written evidence. However, for this it must have legal force. Meanwhile, clear and unified rules and methods for determining the legitimacy of virtual correspondence have not yet been developed, which leads to a large number of problems.

Let's look at a few ways to give legal force to emails.

Gone are the days when letters on paper were the only means of communication. The development of economic relations between subjects of economic activity is already unthinkable without the use of information technologies. This is especially true when counterparties are in different cities or even countries.

Communication via electronic communication helps to reduce material costs, and also allows you to quickly develop a common position on specific issues.

However, such progress should not be viewed only on the positive side. Between subjects economic relations Often there are various disputes, for their resolution they turn to the courts. The court makes a decision based on an assessment of the evidence provided by the parties.

At the same time, the relevance, admissibility, reliability of each evidence separately, as well as the sufficiency and interconnection of evidence in their totality are analyzed. This rule enshrined both in the APC of the Russian Federation (clause 2, article 71), and in the Code of Civil Procedure of the Russian Federation (clause 3, article 67). In the process of determining the admissibility and reliability of the evidence provided, the court often asks questions, the solution of which significantly affects the outcome of the case.

The use of electronic document management in relations between economic entities is regulated by the norms of the Civil Code of the Russian Federation. In particular, in paragraph 2 of Art. 434 states: a contract in writing can be concluded by exchanging documents via electronic communication, which makes it possible to reliably establish that the document comes from a party to the contract.

In accordance with paragraph 1 of Art. 71 Code of Civil Procedure of the Russian Federation and paragraph 1 of Art. 75 of the Arbitration Procedure Code of the Russian Federation, written evidence is business correspondence containing information about the circumstances relevant to the consideration and resolution of the case, made in the form digital recording and received via electronic communication.

For the use of electronic documents in legal proceedings, two conditions must be met. First, as already indicated, they must have legal force. Secondly, the document must be readable, that is, contain information that is generally understandable and accessible to perception.

This requirement stems from general rules legal proceedings, suggesting the immediacy of perception by judges of information from sources of evidence.

Often, the court refuses to attach as evidence to the case materials electronic correspondence that does not meet the above conditions, and subsequently makes a decision that does not satisfy the legitimate requirements of the interested party.

Consider the main ways of legitimizing electronic correspondence before and after the start of proceedings.

Work with a notary

If the case has not started yet, then in order to give legal force to electronic correspondence, you need to involve a notary. In paragraph 1 of Art. 102 of the Fundamentals of Notarial Legislation (Fundamentals) states that, at the request of interested parties, a notary provides evidence required in a court or administrative body if there is reason to believe that the presentation of evidence will subsequently become impossible or difficult. And in paragraph 1 of Art. 103 of the Fundamentals stipulates that in order to secure evidence, the notary examines written and material evidence.

According to paragraph 2 of Art. 102 of the Fundamentals, a notary does not provide evidence in a case that, at the time the interested persons apply to him, is in the proceedings of a court or an administrative body. Otherwise, the courts recognize the notarized electronic correspondence as inadmissible evidence (Resolution of the Ninth AAC dated March 11, 2010 No. 09AP-656 / 2010-GK).

It is worth recalling that based on Part 4 of Art. 103 Fundamentals, providing evidence without notifying one of the parties and interested parties is carried out only in cases of urgency.

In order to examine the evidence, a protocol is drawn up, in which, in addition to detailed description actions of a notary should also contain information about the date and place of the inspection, the notary conducting the inspection, about the interested persons participating in it, as well as listing the circumstances discovered during the inspection. themselves emails are printed out and filed with the protocol, which is signed by the persons participating in the inspection, by the notary and sealed with his seal. By virtue of the Determination of the Supreme Arbitration Court of the Russian Federation dated April 23, 2010 No. VAC-4481/10, the notarized protocol of the inspection of the electronic mailbox is recognized as proper evidence.

Currently, not all notaries provide e-mail certification services, and their cost is quite high. For example: one of the notaries of the city of Moscow charges 2 thousand rubles for one page of the descriptive part of the protocol.

A person interested in securing evidence shall apply to a notary with a relevant application. It should indicate:

• evidence to be secured;
• the circumstances that are supported by this evidence;
• the grounds on which the provision of evidence is required;
• the absence at the time of applying to the notary of the case in the proceedings of the court of general jurisdiction, arbitration court or administrative body.

Notaries inspect the contents e-mail box or remotely, that is, they use remote access to mail server(it can be a server of a provider providing an electronic communication service under a contract; a mail server of a domain name registrar or a free Internet mail server), or directly from the computer of the person concerned, on which an e-mail program is installed (Microsoft Outlook, Netscape Messenger, etc. .).

For remote inspection, in addition to the application, the notary may need permission from the domain name registrar or Internet provider. It all depends on who exactly is supporting the work. mailboxes or electronic mail server under the contract.

Provider confirmation

Resolutions of the Ninth AAC dated 04/06/2009 No. 09AP-3703 / 2009-AK, dated 04.27.2009 No. 09AP-5209/2009, FAS MO dated 05.13.2010 No. KG-A41 / 4138-10 stipulate that the courts also recognize the admissibility of electronic correspondence , if certified by the ISP or domain name registrar who are responsible for managing the mail server.

A domain name provider or registrar certifies electronic correspondence at the request of an interested party only if it manages the mail server and such a right is specified in the service agreement.

However, the volume of electronic correspondence can be quite large, which in turn can complicate the process of providing paper documents. In this regard, the court sometimes allows the provision of electronic correspondence to electronic media. Thus, the Arbitration Court of the Moscow Region, in issuing its Decision dated August 1, 2008 in case No. A41-2326/08, referred to the admissibility of electronic correspondence submitted to the court on four CDs.

But when considering the case in the appellate instance, the Tenth AAC, by its Resolution dated 09.10.2008 in case No. A41-2326 / 08, recognized the link to electronic correspondence as unfounded and canceled the decision of the court of first instance, indicating that the interested party did not submit any documents provided for by the concluded parties contract.

Thus, e-mails relating to the subject of the dispute must be submitted to the court in writing, and all other documents can be submitted electronically.

To prove the facts stated in virtual correspondence, confirmation of the content of letters by referring to them in subsequent paper correspondence will help. The use of other written evidence is reflected in the Resolution of the Ninth AAC of December 20, 2010 No. 09AP-27221/2010-GK. Meanwhile, the court, considering the case and evaluating the evidence provided by the parties, has the right not to consider paper correspondence with links to electronic correspondence acceptable.

He only takes it into account and makes a decision based on a comprehensive analysis of all the evidence presented.

Get help from an expert

If case has already started, then in order to give legal effect to electronic correspondence, it is necessary to use the right to involve an expert. In paragraph 1 of Art. 82 of the Arbitration Procedure Code of the Russian Federation, it is regulated that in order to clarify issues arising during the consideration of a case that require special knowledge, the arbitration court appoints an expert examination at the request of a person participating in the case, or with the consent of the persons participating in it.

If the appointment of an expert examination is prescribed by law or an agreement, or is required to verify a statement about the falsification of the submitted evidence, or if an additional or repeated expert examination is necessary, the arbitration court may appoint an expert examination on its own initiative. The appointment of an examination to verify the evidence presented is also provided for in Art. 79 Code of Civil Procedure of the Russian Federation.

In the application for the appointment of a forensic examination, it is necessary to indicate the organization and specific experts who will carry it out, as well as the range of issues for which the interested party decided to apply to the court for the appointment of an examination. In addition, information should be provided on the cost, timing of such an examination and the full amount for its payment should be deposited with the court. The involved expert must meet the requirements established for him in Art. 13 of the Federal Law "On State Forensic Activities in the Russian Federation".

Attachment to the case file as evidence of an expert's opinion on the authenticity of electronic correspondence is confirmed by judicial practice (Decision of the Arbitration Court of the city of Moscow dated August 21, 2009 in case No. A40-13210 / 09-110-153; Resolution of the FAS MO dated January 20, 2010 No. KG-A40 /14271-09).

On the basis of an agreement

In paragraph 3 of Art. 75 of the Arbitration Procedure Code of the Russian Federation, it is noted that documents received via electronic communication are recognized as written evidence, if this is prescribed in the agreement between the parties. Accordingly, it is necessary to indicate that the parties recognize the legal force of correspondence and documents received by facsimile, the Internet and other electronic means of communication equal to the originals. At the same time, the contract must specify the e-mail address from which the electronic correspondence will go, and information about the authorized person authorized to conduct it.

The contract must state that the designated e-mail address is used by the parties not only for working correspondence, but also for transferring the results of work, which is confirmed by the position of the FAS MO in Resolution No. KG-A40 / 12090-08 dated 12.01.2009. The Decree of the Ninth AAC dated December 24, 2010 No. 09AP-31261/2010-GK emphasizes that the contract should stipulate the possibility of using e-mail for approval terms of reference and claims to the quality of services rendered and work performed.

In addition, the parties may provide in the contract that notifications and messages sent by e-mail are recognized by them, but must be additionally confirmed within a certain period by courier or registered mail(Resolution of the Thirteenth AAS dated April 25, 2008 No. A56-42419 / 2007).

Summing up, we can say that at the moment there is a practice of using electronic correspondence by the courts as written evidence. However, taking into account the requirements of procedural law regarding the admissibility and reliability of evidence, virtual correspondence is taken into account by the court only if it has legal force.

In connection with this, there a large number of problems, since a unified methodology for determining the legitimacy of electronic correspondence has not yet been formed. The right of an interested party to apply to a notary in order to provide evidence is fixed, but there is no normative act of the Ministry of Justice of the Russian Federation regulating the procedure for the provision of such services by notaries. As a result, there is no single approach to determining their value and the formation of a clear mechanism for the implementation of this right.

There are several ways to legally validate emails for evidence in court: securing emails with a notary public, notarizing with an ISP, by linking to emails in further paper communications, and forensic proof of their authenticity.

A competent approach to the timely provision of electronic correspondence as written evidence will allow business entities to fully restore their violated rights when resolving disputes.

However, courts are wary of electronic documents and do not always accept them as proper evidence. In this article, five ways to get a court to accept email as evidence in a case.

QUESTION TO THE TOPIC
In what form is electronic correspondence submitted to the arbitration court?
There are no special requirements established by law. However, due to the fact that all evidence must be attached to the case (Articles 64, 75 of the Arbitration Procedure Code of the Russian Federation), it can be concluded that electronic correspondence must be submitted on paper (determination of the Supreme Arbitration Court of the Russian Federation dated April 23, 2010 No. VAC-4481/10 ).

Preliminary Steps for E-mail to Be Evidence-Based

Electronic correspondence is a kind of written evidence (clause 3, article 75 of the Arbitration Procedure Code of the Russian Federation). At the same time, the Arbitration Procedure Code states that electronic messages can be classified as written evidence in the manner determined by law, an agreement or the Supreme Arbitration Court (clause 3, article 75 of the Arbitration Procedure Code of the Russian Federation as amended by Federal Law No. 228-FZ of July 27, 2010 ). Therefore, the parties can personalize their electronic messages in advance so that they later become admissible evidence in the case. This can be done in two ways.

Method one: giving legal force to the correspondence in the contract. Considering that counterparties have the right to determine the procedure for submitting written evidence on their own (clause 3 of article 75 of the Arbitration Procedure Code of the Russian Federation), they can give probative force to electronic correspondence in advance.

To do this, they need to prescribe the appropriate condition in the contract (conclude an additional agreement) indicating the email addresses that will be used by the parties, and those persons who will carry out such correspondence on behalf of the company.

In addition, as court practice shows, it would not be superfluous to indicate exactly what legal actions the parties agreed to carry out through electronic correspondence. In one of the disputes, the party to the case referred to the fact that in the questionnaire to the contract, the parties agreed on the use of e-mail with the designation of the address of the counterparty where documents should be sent. However, the arbitration court emphasized its position on the fact that "the e-mail address was indicated by the parties for the implementation of working correspondence, and not for the transfer of the results of work" (resolution of the Federal Arbitration Court of the Moscow District dated 12.01.09 No. KG-A40 / 12090-08).

Without specifying in the contract the contact persons, email addresses and issues that the parties can agree on in this manner, the court most likely does not recognize electronic correspondence as admissible evidence in the case (Decree of the Federal Arbitration Court of the Moscow District dated February 27, 2010 No. KG-A41 / 531 -10). Judicial practice with the opposite position of the courts is extremely insignificant (decree of the Federal Arbitration Court of the Urals District of June 28, 2010 No. Ф09-4726 / 10-С3).

Method two: using email digital signature. An electronic digital signature (hereinafter referred to as the EDS) is equated to a handwritten signature in a paper document (clause 1, article 1 of the Federal Law No. 1-FZ of January 10, 2002 "On Electronic Digital Signature"). Undoubtedly, its use is one of the most reliable ways to identify electronic messages.

If the company submits to the court an e-mail that is signed by the digital signature of the other party, then it will not be necessary to establish the fact of sending and the authenticity of the e-mail. But here it is important not to miss one detail: in the event of a dispute, the court may require the submission of a document that confirms the agreement with the counterparty on the use of the EDS (Resolution of the Federal Arbitration Court of the North-Western District dated 03.03.09 No. F-04-1207 / 2009 (1502-A46 -eleven)).

QUESTION TO THE TOPIC
What should I do if the plaintiff's correspondence has not been preserved, and the counterparty has deleted it on his computer?
A party may ask the court, in order to secure evidence, to request from a company that carries out technical support mail server, archival copies of electronic messages.

Evidence in court by means of electronic correspondence

Documents received via e-mail are appropriate evidence, subject to a comprehensive full assessment based on the totality of evidence, which is not contradicted by the information contained in the electronic correspondence of the parties (Decree of the Federal Arbitration Court of the Moscow District dated February 17, 2010 No. KG-A40 / 14784-09 ). The company will simply need to prove the authenticity and validity of these letters. Here are some ways.

Method three: determining the details of e-mails. As stated in Article 75 of the Arbitration Procedure Code, written evidence includes documents that allow you to establish the authenticity of the document, that is, that it is signed by the appropriate person, correctly reflects the date and place of compilation, the addressee and other necessary information. In one of the cases, the court determined the data needed to confirm the accuracy of the information. These included: the recipient's and sender's e-mail addresses, information about the time and date of sending the e-mail, the mail server from which the e-mail was sent. Due to the lack of these data, the arbitration court did not accept the printouts of electronic correspondence presented by the company as evidence (decree of the Federal Arbitration Court of the North Caucasus District dated 07.07.08 No. Ф08-3751 / 2008).

Method four: conducting an examination. The authenticity of electronic evidence can be established by the conclusion of a forensic examination. To do this, you need to find an organization that conducts computer-technical expertise. You can turn to experts without waiting for the trial, or petition the court for an examination (clause 1, article 82 of the APC of the Russian Federation). Then the court will appoint an expert who will draw up an opinion and determine whether the correspondence really came from the parties to the case, establish its real content, time of departure and other data. The courts accept the act of an expert opinion as evidence (decree of the Federal Arbitration Court of the Moscow District dated January 20, 2010 No. KG-A40 / 14271-09).

Method five: drawing up a notarial protocol. One of the reliable ways to legalize electronic evidence is to draw up a notarial protocol. Companies have been using this method more and more in recent years. According to the law, notaries have the right to inspect written and physical evidence (Articles 102, 103 of the Fundamentals of Legislation on Notaries dated February 11, 1993 No. 4462-I, hereinafter referred to as the Fundamentals). The company can provide the notary with access to the computer and mail server where the correspondence is located. The notary will verify the authenticity of the correspondence, determine whether it really came from the parties to the case, and draw up a protocol that will give the electronic correspondence the form necessary for forensic evidence. The e-mails themselves must be printed and filed with the protocol. Such a protocol will be proof that, on a certain date, the email data actually contained electronic messages received from certain addresses. It is important to remember here that a notary will be able to draw up such a protocol only before the start of proceedings in court (Article 102 of the Fundamentals).