Today, courts often accept electronic correspondence as written evidence. However, to do this, it must have legal force. Meanwhile, clear and uniform 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 several ways to give emails legal force.
Long gone are the days when the only means of communication were letters written on paper. The development of economic relations between economic entities is no longer conceivable without the use of information technology. This is especially true when counterparties are located in different cities or even countries.
Communication via electronic communications helps 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. Various disputes often arise between subjects of economic relations; to resolve them, 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 the evidence in their totality are analyzed. This rule enshrined both in the Arbitration Procedure Code of the Russian Federation (clause 2 of Article 71) and in the Code of Civil Procedure of the Russian Federation (clause 3 of 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.
Usage 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 indicated: agreement in 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 circumstances relevant to the consideration and resolution of the case, made in the form of a digital record and received via electronic communication.
To use electronic documents In legal proceedings, two conditions must be met. Firstly, as already indicated, they must have legal force. Secondly, the document must be readable, that is, it must contain information that is generally understandable and accessible to perception.
This requirement stems from general rules legal proceedings, which presuppose the immediacy of judges’ perception of information from sources of evidence.
Often, the court refuses to admit 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 legal requirements of the interested party.
Let's consider the main ways to legitimize electronic correspondence before and after the start of proceedings.
Working with a notary
If the proceedings have not yet begun, then to give electronic correspondence legal force, you need to involve a notary. In paragraph 1 of Art. 102 of the Fundamentals of Legislation on Notaries (Fundamentals) states that, at the request of interested parties, a notary provides evidence necessary in court or an administrative body if there are reasons to believe that the provision 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 inspects written and material evidence.
According to paragraph 2 of Art. 102 Fundamentally, a notary does not provide evidence in a case that, at the time interested parties contact him, is being processed by a court or administrative body. Otherwise, the courts recognize notarized electronic correspondence as unacceptable evidence (Resolution of the Ninth AAS dated March 11, 2010 No. 09AP-656/2010-GK).
It is worth recalling that, based on Part 4 of Art. 103 Fundamentals, provision of evidence without notifying one of the parties and interested parties is carried out only in urgent cases.
In order to examine the evidence, a protocol is drawn up, in which, in addition to detailed description The notary's actions must also contain information about the date and place of the inspection, the notary performing the inspection, the interested parties participating in it, and also list the circumstances discovered during the inspection. The emails themselves are printed and filed with a protocol, which is signed by the persons participating in the inspection, by a 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. VAS-4481/10, the notarial protocol for the inspection of an electronic mailbox is recognized as appropriate evidence.
Currently, not all notaries provide services for certification of emails, and their cost is quite high. For example: one of the notaries in Moscow charges 2 thousand rubles for one page of the descriptive part of the protocol.
A person interested in providing evidence applies to a notary with a corresponding application. It should indicate:
- evidence to be secured;
- the circumstances that are supported by this evidence;
- the grounds for which evidence is required;
- at the time of contacting a notary, the case is not being processed by a court of general jurisdiction, an arbitration court or an administrative body.
Notaries inspect the contents email box or remotely, that is, they use remote access to a mail server (this may be the 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 interested party on which an e-mail program is installed ( Microsoft Outlook, Netscape Messenger, etc.).
During a 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 supports the operation of mailboxes or an electronic mail server under the contract.
Certification from the provider
Resolutions of the Ninth AAS 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 it is certified by the Internet service provider or domain name registrar who are responsible for managing the mail server.
The provider or domain name registrar certifies electronic correspondence at the request of an interested party only if it manages the mail server and such 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 on electronic media. Thus, the Arbitration Court of the Moscow Region, making a Decision dated August 1, 2008 in case No. A41-2326/08, referred to the admissibility of electronic correspondence provided to the court on four CDs.
But when considering the case in the appellate instance, the Tenth AAC, by its Resolution dated 10/09/2008 in case No. A41-2326/08, recognized the reference 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 agreement.
Thus, emails relating to the subject of the dispute must be submitted to the court in writing, and all other documents can be submitted on electronic media.
Confirming the contents of letters by referring to them in subsequent paper correspondence will help prove the facts stated in virtual correspondence. The use of other written evidence is reflected in the Resolution of the Ninth AAS dated December 20, 2010 No. 09AP-27221/2010-GK. Meanwhile, the court, when considering the case and assessing the evidence provided by the parties, has the right not to consider paper correspondence with links to electronic correspondence admissible.
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 the proceedings have already begun, then to give electronic correspondence legal force it is necessary to exercise the right to attract an expert. In paragraph 1 of Art. 82 of the Arbitration Procedure Code of the Russian Federation stipulates that in order to clarify issues that arise during the consideration of a case that require special knowledge, the arbitration court appoints an 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 examination is prescribed by law or a contract, or is required to verify an application for falsification of the evidence presented, or if an additional or repeated examination is necessary, the arbitration court may appoint an examination on its own initiative. The appointment of an examination for the purpose of verifying the evidence presented is also provided for in Art. 79 Code of Civil Procedure of the Russian Federation.
In the petition for the appointment of a forensic examination, it is necessary to indicate the organization and specific experts who will carry out the examination, as well as the range of issues for which the interested party decided to apply to the court to order the examination. In addition, information about the cost and timing of such an examination should be provided and the full amount to pay for it should be deposited with the court. The involved expert must meet the requirements established for him in Art. 13 Federal Law“On state forensic activity in the Russian Federation.”
Attachment to the case materials as evidence of an expert's conclusion on the authenticity of electronic correspondence is confirmed by judicial practice (Decision of the Moscow Arbitration Court dated 08/21/2009 in case No. A40-13210/09-110-153; Resolution of the Federal Antimonopoly Service of the Moscow Region dated 01/20/2010 No. KG-A40 /14271-09).
Based on the contract
In paragraph 3 of Art. 75 of the Arbitration Procedure Code of the Russian Federation notes that documents received via electronic communication are recognized as written evidence if this is specified in the agreement between the parties. Accordingly, it is necessary to indicate that the parties recognize the equal legal force of correspondence and documents received via fax, the Internet and other electronic means of communication as the originals. In this case, the agreement must specify the email address from which electronic correspondence will be sent, and information about the authorized person authorized to conduct it.
The contract must stipulate that the designated email address is used by the parties not only for work correspondence, but also for the transfer of work results, which is confirmed by the position of the FAS MO in Resolution No. KG-A40/12090-08 dated January 12, 2009. The Decree of the Ninth AAS dated December 24, 2010 No. 09AP-31261/2010-GK emphasizes that the contract must stipulate the possibility of using e-mail for approval terms of reference and making claims regarding the quality of services provided and work performed.
In addition, the parties may stipulate in the agreement that notifications and messages sent by email are recognized by them, but must be additionally confirmed within a certain period by courier or registered mail (Resolution of the Thirteenth AAC dated April 25, 2008 No. A56-42419/2007).
To summarize, we can say that today there is a practice of courts using electronic correspondence as written evidence. However, taking into account the requirements of procedural legislation regarding the admissibility and reliability of evidence, virtual correspondence is taken into account by the court only if it has legal force.
In this regard, a large number of problems arise, since a unified methodology for determining the legitimacy of electronic correspondence has not yet been formed. The right of an interested party to contact a notary in order to secure evidence is enshrined, but there is no regulatory 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 forming a clear mechanism for implementing this right.
There are several ways to give electronic correspondence legal force in order to present it as evidence in court: securing electronic correspondence from a notary, certification from an Internet provider, by referring to emails in further paper correspondence, as well as confirming their authenticity through forensic examination.
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.
I recently got this working, so although I would share:
Sending all outgoing mail to Sent folders with postfix and cyrus imap.
Do postfix send copies of copies of all outgoing emails to a special "sent" email account. Use a sieve on this special account to redirect all emails associated with the account to the Sent folder.
Create an email user account for sent
The easiest way to do this is to create a new unix account for senders, setting the shell to /bin/false so that no one can log into:
Host$ sudo useradd sent host$ sudo chsh -s /bin/false sent
Configure imap for sent user
Using cyradm we create a new mailbox(i.e. user) and let this user add access to all our Sent Items imap folders:
Host$ $ cyradm -user cyrus localhost Password:
Create a sieve script for the submitted account
This script redirects all incoming email to the sent account, to the Sent folder in the senders inbox.
My script is called sent.sieve and looks something like this:
# Sieve script for sent. If outgoing email is bcc"ed to this account, # this sieve script will redirect it to the sender Sent folder require ["fileinto"]; if address:is:localpart "From" "userx" ( fileinto "user.userx.Sent "; ) elsif address:is:localpart "From" "usery" ( fileinto "user.usery.Sent"; ) elsif address:is:localpart "From" "userz" ( fileinto "user.userz.Sent"; )
You will need to enter an entry for each of your users (userx, usery, userz in the example above). I couldn't find best way do it. Suggestions are welcome [email protected]
Set up the sieve script like this:
Host$ sievshell localhost -user=sent -a=cyrus Password:
Configure bcc mapping for postfix
In the postfix directory (/etc/postfix on debian) create a file called bcc_map that looks like this:
# copy all locally sent mail to the sent account @yourdomain.com [email protected]
Compile this into a postfix hash file using:
Host$ sudo postmap bcc_map
Add the following configuration to the postfix main.cf configuration file:
Sender_bcc_maps = hash:/etc/postfix/bcc_map
And make postfix reload its configuration:
host $sudo/etc/init.d/postfix reload
Testing and Debugging
Send the email and check that it is copied to the Sent folder.
In case of problems you should check the cyrus and postfix logs (all logged to /var/log/syslog on my debian host). Typos and incorrect access permissions usually result in some hints being sent to logs.
Tamara Vorotyntseva – development director of the training company “BUSINESS PARTNER” (Moscow). Practicing business coach, author of the book “Building a Personnel Training System” and publications in business publications in Russia, Kazakhstan and Ukraine. Creator of the Internet newsletter: “E-mail correspondence in business” on the subscribe.ru server! The book is a practical guide for business people who actively correspond with clients and partners. It presents tools that will help make electronic communication effective, optimal in time and results, and most compliant with the norms and rules accepted in the modern business community. The author gives practical advice, illustrates his observations with real-life cases, and provides reasoned conclusions. The text of the book is rich in recognizable examples of real business correspondence. The author shares his observations, techniques, and “tricks” that can significantly affect the efficiency and effectiveness of business email. If you are business man and it is important for you to write quickly, concisely, competently, in accordance with the rules of good business manners - this book will become your reliable assistant.
Book:
When working with the fields “To” (“To”), “Cc” (“CC”), “Bcc” (“Bcc”), remember that this is an important part of the email that affects the further actions of the participants in the correspondence.
“To whom” (“That”). This field contains the address of the recipient to whom the letter and the information contained in it are directly addressed. The author of the letter is waiting for a response from the main recipient. If two recipients are placed in this field, then the author of the letter is waiting for a response from each or some of them (keep this in mind if your name is on the list of recipients). At the same time (if you are the sender), keep in mind that it is not very advisable to include more than one addressee in the “To” (“To”) field. A letter sent to several recipients may not receive a single response, since each will think that the other will answer.
If the letter is addressed to you, but contains copies of other recipients, be sure to use the “Reply ALL” button when replying! This will allow you to maintain the circle of recipients that the initiator of the correspondence designated.
“Copy” (“Cs”). IN In this field, place the addresses of recipients who, in your opinion, should be aware of correspondence via this issue. These recipients receive information only “for your information.” The CC recipient usually does not have to respond to the letter, but can do so if necessary.
PLEASE NOTE. THIS IS IMPORTANT!
If your name is in the “Cc” (“CC”) field, then when entering into correspondence, remember that there are situations when it is extremely important to be polite. Use the phrases: “Let me join the discussion,” or “Let me join your dialogue,” or “Let me express my opinion.”
"Blind carbon copy" ("Bcc"). This field is prohibited for use in some companies, as it is a tool that contradicts ethical standards of communication. The purpose of this field is to invite the recipient to become a “secret witness.”
If your business practice is to use this field in your work, consider the following. The BCC recipient remains invisible to the primary recipient and the BCC recipients. Sometimes it is useful for the sender and the “secret recipient” to have a preliminary agreement (or subsequent awareness) about the reason and purpose of this method of information.
PLEASE NOTE. THIS IS IMPORTANT!
The “hidden” recipient should absolutely not enter into correspondence from this field.
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In Microsoft Outlook, you can specify that for all messages you send, an automatic Bcc (Bcc) will be sent to other distribution lists or users.
One scenario in which this rule is useful is when all group members reply to incoming email messages, such as Center technical support. When one group member replies to a message, 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, people or groups that are specified in the rule will be automatically added as copy recipients. The names of people or groups do not appear in the Cc line of the compose message, but those names will appear to all recipients of the message.
Disable a rule
In the Mail view, on the tab Home click the button rules > Manage Rules and Alerts.
On the tab in the section Rule
Click the button OK.
Rules and Alerts.
Advice: More information For information on how to quickly disable this rule for individual messages, see the next section ("").
Use a category to disable automatic CC for individual messages
If you want the flexibility to turn off 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 a rule.
Advice:
First you need to create a rule to automatically send bcc(Cc) for all emails sent.
This specific rule is called client rules. Client rules run only on the computer on which it is created and run only if Outlook is running. If you were to send an email using an email account on another computer, the rule would not run from that computer so that it would be generated on that computer. This same rule must be created on each computer that plans to use it.
Create a rule
Now every time you send a message, be it a new message, forward a message or reply, people or distribution lists specified in the rule will be automatically added as copy recipients. The names of people or distribution lists do not appear in the Cc line of the compose message, but those names will appear to everyone who receives the message.
Disable a rule
To prevent a copy from being sent automatically, you must first disable the rule.
In Mail in the menu Service click 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 to other people or mailing lists. The rule will be inactive until it is restart in the dialog box Rules and Alerts.
Advice:
Use a category to disable automatic CC for individual messages
If you want to disable the new automatic Send CC rule for individual messages without calling the 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.
Whenever you want to disable the auto-cc 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 you send a message, the auto-copy rule will not apply.
