Authentication of ESI on Motion Compelling Arbitration Despite Factual Dispute

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April 25, 2023
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April 26, 2023

Authentication is a central issue when it comes to use of ESI in motions or at trial.[1]

In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *5 (D. Md. Oct. 15, 2021)(Boardman, J.), the Court addressed authentication of ESI on a summary judgment motion.  Here, defense counsel dotted all of the “I’s,” crossed all of the “T’s,” and prevailed despite plaintiff’s contradictory sworn evidence.

Mr. Mason filed suit against his employer.  He alleged employment discrimination that led to termination.  Domino’s, the employer, sought to compel arbitration.  The Court wrote:

“Domino’s argues the parties entered into a valid arbitration agreement that covers the scope of Mr. Mason’s claims. In response, Mr. Mason disputes that he ever entered into the arbitration agreement. Both parties have submitted evidence in support of their respective positions.” [emphasis added].

The Court held that the parties entered into a valid arbitration agreement and granted the motion.

Given the factual dispute, it is instructive to examine how Domino’s prevailed.

Domino’s offered evidence that new hires were required to sign an arbitration agreement.  Using a methodology that is typical of many industries: “New hires followed a multi-step, online process to sign the arbitration agreement and other onboarding documents.”  The Court explained each step of that process.  Id. at *2.  Domino’s asserted that Mr. Mason followed this process and affixed digital signatures to the documents presented during the process.

However, Mr. Mason offered “documentary and testimonial evidence to support his position….  He states he did not agree to arbitration, did not sign a document labeled ‘Arbitration Agreement,’ and while he signed other documents as part of the onboarding process, none of those documents, including the 2015 Policy Manual, mentioned arbitration. … He insists Domino’s never provided him with a cover letter explaining the arbitration program, a flyer about arbitration, or the arbitration agreement.”  Id. at *3.  Additionally, Mr. Mason “swears in his affidavit that none of the documents he reviewed online during the onboarding process referred to arbitration.”  Id. at *4.

On the other hand, the Court wrote that “Domino’s offers considerable evidence that Mr. Mason digitally signed, agreed to, and is bound by the arbitration agreement after having the opportunity to review it.”

Considering the motion as a Rule 56 summary judgment motion, the Court wrote: “The crux of the parties’ dispute is whether Mr. Mason agreed to and is bound by the arbitration agreement.  Certainly there must be an agreement between the parties to arbitrate before arbitration can be compelled.”  Id. at *4.

This would appear to present a genuine dispute of material fact that precludes summary judgment.  However, the Court ruled to the contrary and ordered arbitration.

In order to understand why, it is important to review how Domino’s authenticated its exhibits.  Initially, Domino’s filed an affidavit describing its onboarding process in detail.  Id. at *4.  It also “submitted evidence that Mr. Mason in particular followed the new-hire procedures and digitally signed the arbitration agreement.”  Id. at *5.  The Court wrote:

Mr. Mason argues Domino’s has not properly authenticated his e-signature on the arbitration agreement. The Court is not persuaded.

Under Federal Rules of Evidence 901, a party may authenticate electronically stored information such as e-signatures by “produc[ing] evidence sufficient to support a finding that the item is what the proponent claims it is,” such as “[t]estimony that an item is what it is claimed to be” or “[e]vidence describing a process or system and showing that it produces an accurate result.” Fed. R. Evid. 901(a), (b)(1), (9); see Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007) (noting “[a] party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be,” which “is not a particularly high barrier to overcome”).

Domino’s has met the requirements of Rule 901. It submitted an affidavit of Michael Chodzko, a Specialist in Domino’s Corporate Operations Support in its Human Resources Department who has personal knowledge of “Domino’s routine business practices pertaining to the maintenance and security of Domino’s computer system and employee access to the TMSC website, a self-service Website maintained by Domino’s for internal use.” …. Mr. Chodzko details the online onboarding process required for Mr. Mason and all new Domino’s employees, including the e-signature process. Mr. Chodzko describes how all new employees must review and sign the arbitration agreement. … He explains that Domino’s maintains electronic records of the e-signatures of its employees and did so in Mr. Mason’s case. He attaches to his affidavit several documents reflecting Mr. Mason’s e-signatures, including his digital signature of the Arbitration Agreement, which he swears were maintained by Domino’s in the usual course of business.

With that foundation, the Court had no trouble resolving the key issue.  It wrote:

After considering the affidavits and the documents submitted by Mr. Mason and Domino’s, the Court finds there is no genuine dispute of material fact that Mr. Mason reviewed, signed, and agreed to bound by the arbitration agreement. Although he claims in his affidavit he never signed the agreement and never read a document referring to the agreement during his online onboarding process, Domino’s has submitted overwhelming evidence to the contrary. The record evidence shows that Mr. Mason agreed to review online onboarding documents, such as arbitration agreements, and to e-sign and be bound by them as if he were signing them by hand. His authenticated digital signature is on the arbitration agreement. As part of his review of the arbitration agreement, he reviewed the cover letter and flyer explaining Domino’s mandatory arbitration program. Even if Mr. Mason is correct that the 2015 Policy Manual, which he agrees he reviewed and e-signed, does not refer to arbitration, the 2015 Team Member Handbook that he also e-signed does.

Id. at *5.  The Court added that: “No rational trier of fact could believe Mr. Mason did not sign and agree to the terms of the arbitration agreement.”  Id. at *5 (emphasis added).[2]

The Court cited precedent that where a litigant’s factual account is “blatantly contradicted” by the record, it need not be credited.  Id.  The Court explained that “Domino’s already established how its onboarding process operates and identified the safeguards in place to ensure signatures are authentic.”  Id. at *6.  It compelled arbitration and dismissed the case.

Hats off to my colleague and friend, Lee B. Rauch, Esq., who represented Domino’s.

Fed.R.Evid. 901(10) permits any method of authentication authorized by Rule.  The December 2017 amendments to Fed.R.Evid. 902 (13, 14) permit authentication  of records generated by an accurate electronic system and authentication using hash values,[3] when properly certified by a qualified person.   The Advisory Committee wrote: “A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial.”


[1] I have several posts on authentication.  For example, Authentication of a Disputed Email and Attachment.  To view others, please click on the “tag” for “Evidence Authentication.”

[2] The Court wrote that “if a party fails to establish the existence of an element essential to that party’s case or the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, then summary judgment is proper.”  Id. at *3 (cleaned up)(emphasis added).

[3] The Advisory Committee wrote: “A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates.”