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October 15, 2017
Spam blocker proves costly

Firm’s server mishandles judge’s emailed order

By Gary Blankenship
Senior Editor

If your legal assistant or paralegal physically picked up a court order from your mailbox and accidentally dropped it in a wastebasket, you couldn’t reasonably expect any relief for the consequences of any resulting missed deadlines or failure to comply with the order.

Likewise, if your computer server electronically received an emailed notice or order and then erroneously tossed it out without ever notifying you or keeping a record of the transmission, you should not expect any relief because of that technological hiccup — especially if you had been warned your system was unreliable.

quote That was the finding of a panel of judges on the First District Court of Appeal in a recent case in which a law firm sought relief after it missed a deadline for appealing an order for its client to pay attorneys’ fees in an eminent domain case.

The Bar’s Practice Resource Institute has posted an item on its blog about the decision with advice for law firms, and the Real Property, Probate and Trust Law Section also has published an article on its website.

“[M]any of the problems and decisions that were made were ones that small- to mid-size firms and companies face,” Rumberger, Kirk & Caldwell attorneys Steve Berlin, Justin Guido, and Jacey Kaps wrote in the PRI blog. “[T]here are issues with technology that firms and their clients must understand.”

According to the opinion, which was released August 10, the parties had filed motions over attorneys’ fees and then waited more than a year for the judge’s order. The appellee attorney suggested the two sides schedule a case management conference, but the appellant law firm rejected that suggestion. The appellees filed a motion for a status conference, but the order was issued before that occurred.

The order was sent from the local clerk of court’s computer system to both a primary and secondary email address for the appellant attorneys. According to various experts who testified, if the clerk’s computer had failed to deliver the emailed order to the appellant firm’s server, an error message would have been generated and returned to the clerk. There was no record showing the email had not been accepted. In addition, the firm had been warned its spam software could receive and then delete legitimate emails without leaving a record. The firm had been advised to get a backup system to log those emails, but the firm rejected that because it would cost $700 to $1,200 annually.

Thirty days after the order, the appellee’s attorneys began a collection action, and the appellant’s attorneys asked for a copy of the order. The appellant law firm then filed a motion seeking relief from the appeal deadline because it had not received the order in a timely fashion. The trial court, after conducting a hearing and getting the testimony of experts, denied the motion.

The First DCA panel’s per curiam opinion noted that such judgments and deadlines can be set aside under the Florida Rules of Civil Procedure if there has been a “mistake, inadvertence, surprise, or excusable neglect.” It went on to note that, “Excusable neglect is found ‘where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry, or any other of the foibles to which human nature is heir.’ Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304, 307 (Fla. 4th DCA 2010).”

The opinion said the evidence showed the order most likely had been received by the firm’s server, and also noted the appellee’s law firm had assigned a paralegal to check for the order every three weeks, something the appellant’s firm could have done. The appellant firm also would have learned of the order if it had agreed to the case management conference.

The judges concluded that the appellant firm “made a conscious decision to use a defective email system without any safeguards or oversight in order to save money. Such a decision cannot constitute excusable neglect.”

Berlin, Guido, and Kaps, in the PRI posting, expressed sympathy for the appellant law firm. The problems, they said, were the firm relied on the Microsoft Exchange server, which rejected and permanently deleted messages that appeared to be spam and could be legitimate, and there was no backup system to catch and keep a record of those rejected emails.

“Technology has been a great enabler to society, however, people must understand its collateral effects,” they said. “The key lesson learned here is to integrate IT professionals into information management decision- making, assess the legal impacts of each IT management system’s function, and to always keep a backup.”

(The full article can be found at pri.floridabar.org.)

Michael Gelfand, former chair of RPPTL, wrote a post for the section’s online news blog that examined the ruling. He too expressed sympathy for the appellant law firm and said lawyers must ensure they understand their technology obligations. (The blog is at rpptl.org and covers court decisions and other events of interest to lawyers.)

“We would never tolerate a mailroom system where a letter could come in and fall off a desk into a wastebasket because of sloppy handling,” Gelfand said. “This decision is a clarion call for attorneys. . . . It requires them to obtain an understanding or assurance that their email systems allow for proper receipt of court documents.”

He also noted the opinion laid out two low-tech options that could have caught the delivery error: regularly checking the online docket, which the appellee law firm did, and participating in the suggested case management conference.

“The appellate court performed its classic role of providing the courts’ expectation or conduct by laying out what occurred and laying out what expectations should be for the future,” Gelfand said.

Judges Scott Makar, Harvey L. Jay III, and M. Kemmerly Thomas participated in the decision, which came in Emerald Coast Utilities Authority v. Bear Marcus Point, LLC, Case No. 1D15-5714.

[Revised: 12-01-2017]