Case No. А40-19739/08-10-141, Arbitrazh Court of Moscow. Date of decision: 25 June 2008. Note by Alex Dolzhich

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281© Pario Communications Limited, 2009 Digital Evidence and Electronic Signature Law Review, Vol 6Digital evidence; status of scanned copies aswritten evidence; contractual agreement for e-mail correspondenceSummaryThe Arbitrazh Court of Moscow accepted print-outs of e-mail correspondence as written evidence. In accordancewith the provisions of article 161 of the Russian CivilCode, all contracts between the legal entities must be inwriting. Article 452 further stipulates that allamendments to the contract shall be in the same formas the contract, unless otherwise provided by the law,contract or usage of trade. The general consequence fornon-compliance with this requirement of form is that thecontract cannot be enforced on the basis of oralevidence. However, under the provisions of article 162 ofthe Russian Civil Code, the parties may produce ‘writtenand other evidence’ to prove the existence and terms ofa contract.In July 2008 Media Planning Group (MPG) filed a claimwith the Arbitrazh Court of Moscow against MeridianPlus (Meridian+) for agency fee and expenses to placeadvertisements on television. The parties entered intoan agency agreement in 2007 whereby MPG undertookto place advertisements for and on behalf of Meridian+in the mass media (television, newspapers, internet).The contract provided that the principal will separatelyconfirm to the agent its consent to specific terms ofadvertising by commitment letters sent by e-mail.Meridian+ issued two such letters, confirming itsconsent to place advertisements on certain televisionchannels and guaranteeing payments according to therelevant schedules.During the hearing, MPG produced print-outs of thescanned commitment letters it received by e-mail. Theletters were accompanied by affidavits sworn by MPGemployees, who certified the receipt of the e-mails.MPG further stated it could produce the originalcommitment letters as Microsoft Outlook filesidentifying the sender, addressee and time of receipt.Meridian+ disputed the validity and admissibility ofthe letters, alleging that the evidence was unreliable:the documents were presented as uncertified copies;they did not bear an original manuscript signature orseal impression. However, when asked by the court ifMeridian+ claimed the documents were forgeries, itsrepresentative gave no answer.The court finally resolved that since the contractspecifically provided for the commitment letters to besent by e-mail, their form was in accordance with theagreement of the parties.In September 2008, the Ninth Arbitrazh Court ofAppeal upheld the judgment (Resolution of the 9thArbitrazh Court of Appeal dated 15 September 2008 No.09А-10819/2008-). The court quoted article 75(3)of the Arbitrazh Procedural Code, indicating thatdocuments received by facsimile transmission, e-mail orother means of communication are admitted as writtenevidence if so prescribed by law or contract. Thecommitment letters were signed and sealed by theofficers of Meridian+ and scanned copies of the letterswere sent to MPG by e-mail in accordance with the clearterms of the agency contract.In December 2008, the Federal Arbitrazh Court ofMoscow region affirmed the resolution, stating that allevidence has been duly examined and every objectionof Meridian+ had been addressed (Resolution of theFederal Arbitrazh Court of Moscow Region dated 18December 2008 No. -А40/11758-08).© Alex Dolzhich, 2009CASE CITATION NO: A40-19739/08-10-141NAME AND LEVEL OF COURT: Arbitrazh Court of MoscowDATE OF DECISION: 25 June 2008MEMBER OF THE COURT:  Judge Ludmila V. PulovaCASE NOTE: RUSSIAN FEDERATIONalexander.dolzhich@gmail.com

Case Note: Russian Federation

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