Friday, August 19, 2011

Missed Deadlines and "Technology" Errors

You may recall this post in April of last year about Robinson v. Wix Filtration Corp., in which the 4th Circuit Court of Appeals determined computer problems in the Appellant's office resulting in the failure to receive notice of a motion for summary judgment did not warrant relief under either Rule 59 or Rule 60.

Recently the 4th Circuit again had the opportunity to address a missed filing deadline where computer technology played a role. Symbionics v. Ortlieb reversed a District Court determination that "a quirk in the functionality of counsel's computer calendar caused counsel to miscalculate the deadline to appeal" a judgment constituted "excusable neglect" under Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure.

Symbionics filed a notice of appeal one day after the expiration of the 30-day time limit, and then filed a motion for extension of time to extend that deadline by one day. According to the opinion, counsel calendared the incorrect appeal deadline:

"Counsel used the Microsoft Windows Calendar, a standard application of the Microsoft Windows operating system, to compute the date on which the thirty-day period to appeal would end. The alleged glitch occurred when, after counting twenty-seven days through December 31, 2009, counsel changed the month on the calendar display to January in order to continue the computation. Counsel failed to notice that the calendar did not automatically advance to January 2010 but instead reverted to January 2009. Consequently, counsel mistakenly referenced the January 2009 calendar when he completed the calculation of the thirty-day window to appeal, which resulted in counsel’s erroneous determination that the deadline was January 5."

The District Court applied the four factors for a determination of "excusable neglect" originally announced by the U.S. Supreme Court in Pioneer Inv. Servs. v. Brunswick Assoc.: 1) danger of prejudice to the opposing party; 2) the length of delay and its potential impact on judicial proceedings; 3) the reason for the delay, including whether it was within the reasonable control of the movant; and 4) whether the movant acted in good faith. Both courts weighed the 1st, 2nd and 4th factors in favor of Symbionics.

Addressing the "reason for delay" prong, the District Court concluded "excusable neglect" existed because the late filing was caused by "the less than completely understood electronic workings of a commonly used software product," "extraneous factors independent of Symbionics' negligence" and "unusual circumstances."

The Court of Appeals disagreed, citing language from the Thompson v. DuPont opinion through the 4th Circuit (in an opinion authored by Michael Luttig, who is now Vice President and General Counsel for Boeing-- special credit if you can tell me where he did his undergraduate work) adopted the Pioneer factors: "[A] district court should find excusable neglect only in the extraordinary cases where injustice would otherwise result." Accordingly, counsel's reliance on the Windows calendar and failure to discover the date reversion are the "run-of-the-mill inattentiveness by counsel" that is not excusable.

The Court did include a footnote indicating that had it reached the merits of the appeal it would have affirmed the District Court's decision.

Symbionics emphasizes the obligation of counsel to build backup and reasonable "redundancy" into a calendaring process, to protect against all forms of possible error. In fact, as discussed over at the Practice and Productivity Blog, "computer" errors are generally the byproduct of human error. Attributing an error a secure calendar system involves people and process, not reliance solely on a software product.