Due Diligence: Malware Virus No Excuse

If you think protecting your computer from malware, viruses, and other misfortune is somewhat important, but not a top priority, think again. 

On March 26, 2010, the 4th US Circuit Court of Appeals upheld the dismissal of a wrongful termination case when the plaintiff’s lawyer failed to respond to a Motion for Summary Judgment served by e-mail.  The lawyer told the court he never received electronic notice of the motion because his “computer system experienced several problems … that caused him not to receive various e-mails.”   He explained that his “computer was afflicted by a malware virus” and “his firm’s domain name had temporarily expired when the Motion for Summary Judgment was filed.”

Was the court overly harsh in it’s response?  Probably not.   The court’s opinion lays out the aggravating circumstances:

  • The lawyer knew that any notice of docket activity would arrive through e-mail pursuant to local rules of practice and procedure.
  • He also knew the deadline for dispositive motions in the case was pending during the time the firm was experiencing computer problems.
  • Nothing in the CM/ECF system indicated that the lawyer failed to receive notice of the filing.
  • The lawyer was well aware of the computer and e-mail problems.  
  • He did not inform the court or opposing counsel of his inability to receive e-notices.
  • He failed to check the CM/ECF system for docket activity, and had no system in place for doing so.
  • When he became aware the deadline passed, the lawyer made a strategic decision not to contact opposing counsel.

The morale of the story:  Protect your computer and don’t bury your head in the sand.  While more was going on here than a mere computer virus, this is still an important wake-up call as we continue to roll out e-court in Oregon.

Copyright 2010 Beverly Michaelis with a nod to Debra Cassens Weiss of the ABA Journal’s Law News Now.

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