Failure to Check Spam Folder Leads to Missed Deadline

Court notices delivered via email are a known point of vulnerability for law firms: failure to timely check messages, accidental deletion of court notices, or haphazard review of spam folders.

Now The Researching Paralegal reports on the latest variation of this theme.

A trial court clerk in Florida served an order by email awarding a significant amount of attorney fees to the prevailing party (appellee).  The opponent/appellant claimed it did not receive the order, resulting in its failure to file an appeal.  What happened? The opponent/appellant’s email system automatically deleted the court’s email as spam.

The opponent/appellant asked the court to vacate the original order on the grounds of excusable neglect.  The trial court declined and Florida’s First District Court of Appeal affirmed. The Researching Paralegal cites these factors:

First, the review of the court clerk’s email logs confirmed that the email with the court’s order was served and received by the law firm’s server. Second, the law firm’s email configuration made it impossible to determine whether the firm’s server received the email. Third, the law firm’s former IT specialist’s advice against this configuration flaw was deliberately rejected by the law firm because its alternative cost more money.

The trial court concluded the law firm made a conscious decision to use a defective email configuration merely to save money, which was not “excusable neglect.”

Another nail in the coffin was testimony by the appellee’s attorney. His firm assigned a paralegal to check the court’s website every three weeks to safeguard that his firm would not miss any orders or deadlines.  The court held that the appellant had a duty to check the court’s electronic docket.

Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLCCase No. 1D15-5714, Fla: Dist. Court of Appeals, 1st Dist (2017).

What can we learn from Emerald Coast?

  1. Whitelist important email. Set your spam or junk email filters to allow receipt of messages from approved senders or domains. Include courts, administrative agencies, key clients, opposing counsel, and any other senders whose email you don’t want to miss.
  2. Review spam quarantine summaries daily. Aggressive spam filters will occasionally block senders and domains you have added to your whitelist if the filter finds content in the email to be possible spam.  Addresses and domains may also change, causing new notices to be marked as spam.
  3. Don’t forget to look at your junk mail folder, another place where legitimate messages can land.
  4. Check online court dockets. Weekly will work for most firms; others may need to login daily, depending on case volume.
  5. Listen to your IT staff.  Here, the IT specialist argued against automatic deletion of junk and spam messages and recommended hiring a third-party vendor to handle spam filtering.  He also suggested investing in an online backup system, another idea rejected by the law firm.  Following either of these recommendations may have prevented the firm from missing the deadline.

A few more takeaways

  • It should be clear, but just in case:  everyone needs a backup system. If you can’t afford the cost of an online subscription, buy an external hard drive on sale and use the backup utility built into your operating system.  For backup protocols and additional backup options, see How to Backup Your Computer from the Professional Liability Fund (Practice Management > Forms > Technology).
  • Can’t afford a third-party vendor for spam filtering or another IT task?  Understandable, but the work itself still needs to get done. This may mean you, your partner, or your staff.  Technology is a tool, not a substitute for human judgment.

There are some other interesting twists and turns in Emerald Coast.  For examplethe law firm also refused to join in on a motion for a case management conference – a step that would have likely revealed the existence of the attorney fee award.  Additionally, automatic deletion of spam wasn’t the only email configuration procedure that caused problems for this office.  If you have a few moments, read the full opinion here.

Beverly Michaelis – All Rights Reserved 2017

Regulatory Notices Go Electronic

The following notice appeared in the December issue of the Oregon State Bar Bulletin:

Make Sure You Can Receive E-mails from “notices@osbar.org” Effective immediately, all regulatory notices from the Oregon State Bar will be sent from a single e-mail address: notices@osbar.org.

If you haven’t already done so, set up your e-mail service to always accept e-mails from this address — or ask your IT department to do it. It is imperative this e-mail address not be blocked by a spam filter, as the OSB will use it to send important information.

Regulatory notices include communications from the Oregon State Bar Disciplinary Office, so bar members are wise to do as the bar suggests.  Follow these steps to be certain important e-mail notices are received:

  1. Whitelist the domain “osbar.org.”
  2. Review quarantine lists daily.  Spam filters sometimes block pre-approved e-mail senders and domains.  Whitelisting does not guarantee you will receive all messages from a given source.
  3. Check your junk mail folder.  Occasionally legitimate e-mail makes it past your spam filter and lands here.

While you’re at it, please add the Professional Liability Fund (PLF) domain to your whitelist: “osbplf.org.”  The PLF distributes its publication, In Brief, electronically and also uses broadcast e-mail for other important announcements, including upcoming CLE programs.

You can read more about the process of whitelisting here.  Keep in mind this may need to be done both at the Internet Service Provider (ISP) level and in the specific settings of your e-mail program.

Can Your Spam Filter Cause You to Commit Malpractice?

We all abhor junk mail.  It clogs our inbox, wastes our time, and exposes us to scams and malware.  But overly aggressive spam filters can be equally problematic. 

In 2007, an attorney who failed to appear in Colorado was required to pay the opposing party’s attorney fees when his firm’s spam filter inadvertently blocked the court’s e-notice of a settlement conference.  Pace v. United Services Auto. Ass’n, 2007 U.S. Dist. LEXIS 49425 (D. Colo. July 9, 2007).   In 2009, the 8th US Circuit Court of Appeals was equally unsympathetic when the losing party failed to timely file a Notice of Appeal because an employee at the law firm “accidentally deleted” an e-notice informing the parties that a final order had been issued.   In 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.”  Last Friday I blogged about a lawyer in Philadelphia who lost the right to arbitrate because “he did not know how to retrieve his e-mail and his wife (who was his secretary) was out of the office with a broken arm.”  The lawyer did not receive the court’s e-notice of the arbitration.

How Can You Avoid These Malpractice Traps?

Above all else:  Learn the technology!  The Philadelphia case is particularly inexcusable.  Your staff person can’t be the only one who knows how this stuff works, especially when you practice in a mandatory e-Court jurisdiction like Philadelphia. 

To prevent court notices and other e-mails from getting caught by your spam filter:

  • Use white-listing.  Set your spam or junk e-mail filters to allow receipt of e-mails from specified senders or domains.  Include courts, administrative agencies, key clients, opposing counsel, and any other senders whose e-mail you don’t want to miss.  You may need to make this change at the Internet Service Provider (ISP) level and in the settings of your specific e-mail program.
  • Check quarantine summaries  daily.  In my experience, Postini is notorious for continuing to block preapproved senders and domains. 
  • Check junk mail folders – Approved senders and domains can make it past your ISP or server-level spam filter, then land in your e-mail program’s junk mail folder.
  • Don’t be so quick to delete.  Normally I’m all in favor of keeping your inbox lean and mean by emptying deleted items.  But what happens if you accidentally delete a court notice?  If you empty your e-mail trash upon exiting, it may be difficult, if not impossible, to recover the message.  (This assumes you realize you made a mistake.)  You can try Recuva to undelete the file and restore it’s path, but there is no guarantee you’ll get it back. 

Is There a Safety Net?

  • Learn how to retrieve docket activity from the court’s Web site.  In PACER, click on Reports-Docket Activity, check the box “Only Cases to Which I am Linked,” enter the desired date range, and choose “Run Report.”
  • Once you’ve learned how to retrieve docket activity online, consider making it a weekly routine.  Every Friday, run a docket activity report for the remainder of the current month.  Compare the court’s calendar to yours and update your calendar if necessary.
  • Add secondary e-mail addresses to court filings whenever possible.  If your primary system goes down or you experience problems receiving e-mail, you can check the second account for notices.
  • If you’re experiencing problems, tell the court.  The attorney who lost the right to arbitrate in Philadelphia would probably still have a viable $35,000 fee claim if he had just picked up the phone.  According to the judge, “… A telephone call to (my) chambers might have avoided the whole predicament.”
  • Learn more about best practices for e-Court and how to avoid e-Court pitfalls.

Copyright 2011 Beverly Michaelis