RUFADAA: What is It... Why We Should Be Concerned About Its Affect on Estate and Financial Planning

Author: Neil Goltermann

Our burgeoning online lives augers of a new world in matters of estate and financial planning, as well as the management of these assets by fiduciaries. Examples of digital assets include software; stored information on hard drives, backup drives, CDs, DVDs, thumb drives, or on the “cloud”; online presences on websites, blogs, social media, e mail, bank, brokerage and financial accounts, iTunes, music files, video games, shopping and travel accounts, and even bitcoins.

One cannot function in today’s world without a password or two, or perhaps 25. What happens to the Facebook and Google accounts of a deceased person? How are Facebook and Google, and other Internet providers notified when an account holder has died? How does the family of a loved one collect the deceased’s photos and digital music, or gain access to on-line bank accounts and records?

RUFADAA is the Revised Uniform Fiduciary Access to Digital Assets Act. RUFADAA defines a “Digital Asset” as “an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” See, RUFADAA, Section 2(10).

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DuPage Business Litigation Attorney Jim Harkness Utilizes Effective Trial Skills in Control Solutions v. ELECSYS

Jim Harkness of Momkus McCluskey Roberts LLC dissects complicated sequence of communications for substantial impeachment value while representing the defendant in the case Control Solutions v. ELECSYS.

Few cases presented to a jury involve a battle of the forms under the Uniform Commercial Code – and pre-trial emails – as complicated as Control Solutions v. ELECSYS, 2014 IL App (2d) 120251 (2nd Dist. 2014). The appellate decision recites six pages of communications and counter-communications. Seasoned DuPage business litigation trial attorney Jim Harkness of Momkus McCluskey Roberts LLC, representing the defense, knew he had his work cut out for him when the plaintiff asked the jury to award $3.3 million in damages against his client arising out of a dispute over a cancelled military supply contract.

In business litigation cases like these, clear presentation of the relevant contractual communications to the jury is absolutely essential.  Absent a clear presentation of the evidence, the jury would be presented with a complicated contract interpretation under the Uniform Commercial Code.  The jury needed to know which emails and documents formed the basis for the disputed contract interpretation and which ones did not. The jury also needed to know which discussions were contractual, and which discussions showed evidence of authentic settlement negotiations, if any.  How the jury saw this would make a multi-million dollar difference in the result of the case.

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