Disclaimer: The Electronic Commerce Security Act (ECSA) was repealed and replaced with the Uniform Electronic Transaction Act (UETA), effective June 25, 2021. Please note that this change may affect the continued accuracy of this guidance as it pertains to the ECSA.

Generally you do not need to retain hard copies of documents, but heightened requirements do apply to records that confer title, including negotiable instruments conferring title (such as mortgage notes).

The general rule under Illinois law is that electronic versions of documents have “the same force and effect under the laws of this State” as documents in writing. Federal law also provides that an electronic signature or document may not be denied legal effect, validity, or enforceability solely because it is in electronic form.

However, for records that confer title, including negotiable instruments conferring title (such as mortgage notes), the Illinois Electronic Commerce Security Act (ECSA) requires you to retain those documents in their original form, unless your electronic storage system “allows for the existence of only one unique, identifiable, and unalterable original with the functional attributes of an equivalent physical instrument, that can be possessed by only one person, and which cannot be copied except in a form that is readily identifiable as a copy.”

In addition, the ECSA specifies certain record retention practices that apply when a law “requires that certain documents, records or information be retained”:

(1) the electronic record and the information contained therein are accessible so as to be usable for subsequent reference at all times when such information must be retained;   

(2) the information is retained in the format in which it was originally generated, sent, or received or in a format that can be demonstrated to represent accurately the information originally generated, sent or received; and   

(3) such data as enables the identification of the origin and destination of the information, the authenticity and integrity of the information, and the date and time when it was sent or received, if any, is retained.

As to the admissibility of electronic documents in court, the ECSA provides that the rules of evidence cannot deny the admissibility of an electronic signature or electronic record on the sole ground that they are in electronic form or are not originals. We also recommend consulting with local counsel before implementing an electronic imaging system to ensure that local court rules or practices will not prevent you from using electronic documents in litigation.

For resources related to our guidance, please see:

• Financial Institutions Electronic Documents and Digital Signature Act, 205 ILCS 705/10(a) (“If in the regular course of business, a financial institution possesses, records, or generates any document, representation, image, substitute check, reproduction, or combination thereof . . . that accurately reproduces, comprises, or records the agreement, transaction, act, occurrence, or event . . . [it] shall have the same force and effect under the laws of this State as one comprised, recorded, or created on paper or other tangible form by writing, typing, printing, or similar means.”)

• Electronic Commerce Security Act, 5 ILCS 175/5-110 (“Information, records, and signatures shall not be denied legal effect, validity, or enforceability solely on the grounds that they are in electronic form.”)

• Electronic Signatures in Global and National Commerce (ESIGN) Act, 15 USC 7001(a)(1) (“A signature, contract, or other record . . . may not be denied legal effect, validity, or enforceability solely because it is in electronic form.”)

• Electronic Commerce Security Act, 5 ILCS 175/5-115(b)(3) (“[A]ny record that serves as a  unique and transferable instrument of rights and obligations including, without limitation, negotiable instruments and other instruments of title wherein possession of the instrument is deemed to confer title” must be maintained in paper form unless “an electronic version of such record is created, stored, and transferred in a manner that allows for the existence of only one unique, identifiable, and unalterable original with the functional attributes of an equivalent physical instrument, that can be possessed by only one person, and which cannot be copied except in a form that is readily identifiable as a copy.”)

• Electronic Commerce Security Act, 5 ILCS 175/5-135 (Electronic record retention requirements that apply when “a rule of law requires that certain documents, records or information be retained . . . .”) 

• Electronic Commerce Security Act, 5 ILCS 175/5-130 (“Nothing in the application of the rules of evidence shall apply so as to deny the admissibility of an electronic record or electronic signature into evidence: (1) on the sole ground that it is an electronic record or electronic signature; or (2) on the grounds that it is not in its original form or is not an original.”)