Cautionary tales have long served humanity — allowing us to view others’ tragedy or misfortune with an eye toward our own self-improvement. We often repeat cautionary tales with some mixture of the following: sympathy, our belief that we wouldn’t have made the same mistake, worry that we might, and personal resolve not to repeat those errors. All those feelings may have crossed the minds of lawyers who heard the story of a missed deadline — related to electronic service — that might cost their client $40 million. If your heart has ever dropped, fearing that you might have blown a deadline, read on.
Court orders, not ECF notices, control
Two firms, including the international firm Sidley Austin, defended AT&T in a patent-infringement suit, and in spring 2013, they lost a $40 million verdict. The parties filed post-trial motions, which, until decided, suspend the time for appeal. In January 2014, AT&T’s lawyers discovered that among what they later characterized as “ministerial” ECF notices was a November 2013 ECF notice that — although the emailed text didn’t specifically call it out — included a court order that had finally resolved all of the post-trial motions. That order triggered the appeal period, which passed before the lawyers’ discovery. They had missed the deadline to appeal.
Electronic Case Filing (ECF) is a process that parties and courts use to file and serve documents — with the court and on other parties — electronically. After a party or the court files a document via ECF on a website, an ECF system generally sends recipients an ECF notice via email.
AT&T’s lawyers moved to extend the time to appeal, contending that the ECF notice’s language related only to “motions for leave to file sealed documents”; it “failed to mention the denial of their substantive post-trial motions.” The court denied AT&T’s request, holding that the orders themselves control, not the ECF notice text. The court observed that 18 lawyers at two law firms received the ECF notices, but not one “bothered to read the orders issued by the court, check the docket for activity, or check on the status of the case.” The court found the team’s failure to notice the order for over 52 days “very troublesome” — and “particularly alarming” because the order involved a $40 million judgment. AT&T’s counsel had even “downloaded actual copies of the orders at two different law firms,” but the lawyers apparently did not read them — instead relying upon the ECF notice’s text.
AT&T appealed to the U.S. Court of Appeals for the Federal Circuit. At oral argument in December 2014, a judge noted that “[w]hen mail is not opened, it doesn’t excuse the failure of not looking at it.” Another judge said that he “can’t imagine that at least a paralegal wouldn’t open and read every attachment from the court.” The Federal Circuit has not yet issued its opinion. Two-Way Media LLC v. AT&T Operations Inc., No. 5:09–cv-00476 (W.D. Tex.), No. 14–1302 (Fed. Cir.).
Do I really need to read linked documents in every email?
Our past articles have sung a consistent refrain: technology can bring significant pitfalls. “Ignore technology at your own peril” (Oct. 17, 2013), “Crossing the T’s and dotting the I’s” (Mar. 15, 2013), “Why more rule amendments?” (Jan. 16, 2014), “Perfecting an appeal” (May 15, 2014). As this cautionary tale demonstrates, lawyers cannot let down their guard: increased technological convenience accompanies the need for constant (or increased) diligence.
In 2013, the ABA amended its comments to the Model Rules of Professional Conduct to specifically address a lawyer’s obligation to understand technology’s impact on the law: “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Comment to Rule 1.1. In other words, ignorance of the law — or of technology — is not an excuse.
In an earlier case similar to AT&T, a lawyer argued that Fed. R. App. P. 4(a)(6) should permit his belated appeal because he didn’t receive notice of the judgment. But that lawyer failed to receive notice only because he neglected to update his email address. The 2nd Circuit held that the District Court abused its discretion by extending the time to appeal. In re: World Com, Inc., 708 F.3d 327, 336 (2d Cir. 2013). Similar cases abound. E.g., Harman v. McAfee, 691 S.E.2d 586 (Ga. Ct. App. 2010) (rejecting counsel’s excuse of email bounce-back, finding that ensuring email account setup was counsel’s responsibility).
Electronic case filing and ECF notices are not the first technologies to bring novel procedural questions. Several Minnesota cases have held that serving a notice of appeal through a now-antiquated technology — the fax — was insufficient without obtaining opposing counsel’s prior consent to be served by fax. In re Custody of the Minor Child of Fenton v. Carlson, A14–0138 (Minn. App. Mar. 4, 2014). In an earlier case, the Minnesota Court of Appeals similarly dismissed an otherwise proper appeal where the notice of appeal was served by fax within the appeal time, but mail service had not been timely. Gliszinski v. Davisco Foods, Int’l, Inc., A11–2230 (Minn. App. Feb. 8, 2012).
Pixels, not paper, complicate lawyers’ task.
Many lawyers remember when work literally piled up on their desks. Pieces of paper are hard to ignore. And if a piece of paper is from a court, lawyers are loathe to ignore it. At least faxes involve paper — that someone must physically handle. Anyone going paperless knows that throwing out paper is hard, and it’s even harder when it’s from a court.
Lawyers’ desks today are unlikely to contain piles of paper. Instead, a fire hose of electrons (email) deluges the inboxes of busy lawyers and their staffs. Along with that case-dispositive ECF notice, inboxes might also contain hundreds or thousands of other messages — everything from lunch invitations to spam. To cope, lawyers might be tempted to save an email for later, believing they will clean up their inboxes someday. That temptation can increase when lawyers check email away from the office. Quickly reading and then passing over a single ECF notice (among hundreds) might be understandable — though as the AT&T case demonstrates, it is probably not excusable.
Of course, court clerk’s offices frequently assist our task — separating the wheat from the chaff — by clearly describing an ECF notice’s contents. But as AT&T shows, that does not always happen. For example, some filings in the Minnesota state courts’ system don’t describe the filing at all — instead merely including the unhelpful Filing Code “Service Only.” Recipients must click through the link before determining what the filing actually is: innocuous or a case-altering filing. Lawyers who are traveling with poor Internet access, or are otherwise away from their offices, might defer reading that underlying document until they return to their offices. But if a lawyer ultimately neglects to act upon important or jurisdictional documents, the cases above demonstrate that courts seldom excuse what they characterize as lawyer neglect.
Assistants can help, but the ultimate responsibility lies with lawyers.
By accepting the ECF systems’ conveniences, (e.g., filing, serving, and retrieving pleadings from anywhere), lawyers also accept responsibility. Careful lawyers diligently read all notices — and their underlying, linked documents — that a court sends. And those lawyers give electronically served court orders the same deference as their paper-based counterparts. Of course, lawyers often ask their support staff to email them PDFs of ECF documents, permitting easy viewing on mobile devices. And cautious lawyers set up systems where documents and deadlines are docketed. As with so many other aspects of legal practice, though, lawyers cannot lay blame on nonlawyer staff: the buck stops with the lawyer. See ABA Model Rule 5.3.
These cautionary tales remind us that lawyers ignore technology at their peril. You can’t judge an ECF notice by its cover. Until courts start ruling otherwise (an unlikely event), this unremarkable statement remains true: lawyers should, in fact, read everything from the court.
Reprinted with permission of Minnesota Lawyer ©2015
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