People, Processes, AND Technology: Use All Three to Avoid Missing a Filing Deadline

As With Information Security, So Too With Calendaring . . . 

"This is a cautionary tale for every attorney who litigates in an era of e-filing." The first sentence of the 5th Circuit's opinion in Rollins v. Home Depot is quite the attention-grabber. But this tale is nothing new. Attorneys must understand the potential pitfalls of electronic service and take reasonable steps to avoid them. 

As I have been saying (writing) for over ten years now, you cannot blame computers or computer software for missed deadlines. Instead, use knowledgeable people and sound processes to manage this risk.

Blaming the Machines is not a Good Play

Rollins (Briefly).

All attorneys using the case management/electronic case files (CM/ECF) system in federal courts agree to accept service of filings (and other documents and notices) via email. FCRCP 5(b)(2)(E). Counsel for Home Depot moved for summary judgment. Rollins' counsel didn't see the electronic notification of the motion because that email went into a folder he did not check regularly. The deadline to file a response passed, and the district court granted summary judgment.

Rollins filed a motion under FRCP 59(e) to alter or amend the judgment. The district court denied the Rule 59(e) motion. The 5th Circuit affirmed the district court's decision, and provided several reasons why counsel cannot blame the electronic-filing system. These included counsel's obligation to make sure his email system is working properly, and the ability for counsel to monitor the docket. 

Looking Back: The Signs Were There

One upside of a blog is the ability to find previous work product with little effort. I first flagged a similar case in April of 2010. In 4th Circuit Affirms Summary Judgment Against Party That Failed to Respond to Summary Judgment Due to "Computer Problems" there's a discussion of a case where a party failed to respond to a motion for summary judgment and claimed that 

its counsel did not receive the notice of filing due to computer problems in his office-- a virus infecting that computer system and the expiration of the firm's website domain name registration.

The 4th Circuit affirmed the district court's decision, based on the language of both FRCP Rules 59(e) and 60(b). There is a lengthy discussion of the steps counsel could have taken to prevent missing a deadline, including (wait for it .  . . ) checking the court's docket. 

From that post:

The lesson from this opinion appears to be fairly clear: since the CM/ECF is the official (and sole) method by which notice is provided in the federal court system, if a law firm experiences computer troubles that might compromise the ability to receive email, then it pays to log in to the CM/ECF (or take other appropriate action) in order to monitor the progress of your cases.

Then, in August of 2011, I wrote about Missed Deadlines and "Technology Errors," describing another 4th Circuit Case where that court "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." 

The takeaway then:

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. An effective calendar system involves people and process, not reliance solely on a software product.

The Lesson: Stop Blaming the Computer and Address The Risks 

Don't be terrified, take steps to make sure something like this doesn't happen: 

  • Be aware of this possibility, and alert and train those with whom you work about it. Have a backup plan in case emails end up in the wrong place.
  • Check the Docket, particularly when dispositive filings may be taking place. 
  • Have others in your organization monitor the Docket. 
  • Designate other personnel from your organization to receive electronic filings.  
  • Check your spam and quarantine folders on the regular, and make sure your colleagues do also.
Have Some Backup in Case Things Don't Go as Planned

Once you realize that computers and computer software are not the problem (or a potential scapegoat), you can focus on the people (knowledgeable and aware of the risks) who perform the processes (described above) to ensure deadlines are met.

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