Oregon State Bar Bulletin — JULY 2002

Being a pilot, I learned the virtue of system redundancy years ago in the air. Two of everything, that's the rule, even two spark plugs per cylinder, rather than the usual one. I thought I had achieved redundancy on the ground in my law practice as well, specifically with respect to ensuring that I receive critical e-mail. This story shows how wrong I was, how high the stakes of that error can be, and how to avoid malpractice disasters related to e-mail. For the past several years, I have been trying to move my practice to 'all electronic.' I spend lots of money on a new computer every two years, expensive software and a multitude of online services for faxing, file storage, remote computer voice mail and conversion of almost every piece of paper and voice message to electronic data. Applying the aviation principal to my electronic law practice, I use two external hard drives for double back-up of everything, and I always have a second laptop with identical files. As with the murderous HAL 9000 space-based computer in 2001: A Space Odyssey - capable of being exposed only by its twin HAL 9000 on earth - I have learned the only true backup is a twin computer.

With all of this, what could go wrong with my electronic office that might cause my clients or me any injury? I learned the answer to that recently, and a hard and horrible lesson it was. For my federal court practice, I vigorously embraced the court's new ECF (Electronic Court Filing) system. For designated cases, filings of all documents are to be formatted in PDF (such as Adobe) and transmitted to the clerk electronically from the court's ECF website. Anytime a document is filed now in federal court, whether electronically or by paper in the old fashion, the filing attorney and each attorney of record then receives an e-mail confirmation. But no paper notice is sent out by the court. Lawyers must serve adverse counsel with paper copies, but when the court enters an order, the only notice the lawyers receive is by e-mail. That e-mail notice starts the clock running on response time. That e-mail, and only that e-mail, notifies lawyers of the date and time for oral argument on a motion. And, as to non-appealable final orders or magistrate findings and recommendations (F&R), that e-mail, and only that e-mail notice starts the time for appeal. (Paper copy is still sent as to judgments and 'appealable orders.') So, when Magistrate Cooney in Medford entered an F&R recently that recommended dismissal of my client's civil rights action based on abstention doctrine, my only notice of that entry, and of the 10 days within which to file objections and preserve appeal rights, was by e-mail. And, when oral argument was set in another case in federal court during the same week, my only notice was by e-mail. I never got those two e-mails.

I still fully support transition to a paperless federal court and approached this problem with no desire to retrench back into paper notices. So I had to ask: How could this happen? I was getting e-mail everyday on the same account and at the same e-mail address the federal ECF system uses to provide e-mail notice to me. Nor were people who sent me e-mail getting any error or non-delivery messages. Messages to me were simply disappearing in to a cyber black hole without a trace. How could I be getting some e-mail, but not all e-mail? Had I received no e-mail, I would have been alerted that my system was down, and I would have acted to correct the problem immediately. But how can a lawyer know that there is a problem with an e-mail server or e-mail program, or a computer, when he or she is still getting some e-mail? In my situation, there was a subtle sign on a Tuesday afternoon when my client called and asked:
'Thad, where do I go tomorrow for the oral argument on the motion to dismiss our case?'

I tried to repress the fear and incompetence in my voice, responding:
'What oral argument?'

He then proceeded to tell me that he had logged on to the federal court PACER site and saw the calendar of our argument. I quickly checked my e-mail to see if I had somehow missed the ECF notification. There was none. I logged on to PACER and my client was right - oral argument tomorrow morning! My client saved me, only because he is a law student with a PACER account.

I concluded that I must have inadvertently deleted the e-mail notification. It was not until that afternoon following the oral argument that the full crush and panic of this situation struck me. I give all adverse counsel my cell phone number in the beginning of each federal case. At 3 p.m., I received this call from Portland:
'Thad, I wanted to confirm that you did not file any objections to the F&R.'
Unlike the call from my client the previous day, I could not suppress the panic. I could hardly breathe. I was sweating:
'What F&R, what are you talking about, Bob?'

Bob Newell is a good guy. I could hear the compassion in his voice:
'Thad, the F&R dismissing your case was entered 20 days ago, your time is up, what happened? That's why I'm calling, I was surprised.'

I had a physical urge to begin running the three miles to the federal court, with nothing in my hands, no motions, just desperation, as though the clerk could do anything for me. It scared me worse than an engine failure I had at 12,000 feet over the Sierras near Tahoe a few years ago. (It was a single engine plane lacking the most critical redundancy- a second engine.) My time was up, the F&R had probably already been sent to the Article III judge and entered, and the failure to file objections is a waiver of any appeal to the 9th Circuit. Bob could hear the vertigo in my stammering. He said he doubted his client would oppose a motion to seek more time if it wasn't already too late. He said it wouldn't be fair if I had never gotten the e-mail notice, since the rights and well being of clients in federal court in ECF cases depends on one thing in such circumstances - a single, little e-mail. Again, there is no paper copy of an order sent in ECF cases.

I prepared a short, shell-shocked sounding motion and affidavit, electronically filed it on the ECF system and waited the one second it usually takes to receive the e-mail notice of any new filing- nothing. Five minutes, 10 minutes, still no e-mail notice that I had just filed even this motion. I called the court clerk, they were about to leave for the day. Debbie, the deputy clerk, said she would wait if I could get there in 15 minutes. 'Oh, thank you for Debbie,' I prayed. It made no legal difference, we both knew, whether I filed that motion at 5 p.m. Wednesday or at 8:30 a.m. Thursday - except emotionally. But she and I decided there in that empty clerk's office that while I might be electronically cursed, I was blessed when it came to paper, for the F&R had not yet been transmitted to the Article III judge. Debbie sent me a test e-mail before she locked up the clerk's office. I went to a nearby law office and sent a test e-mail from their computers. I went home to begin figuring out what had happened, and I didn't know where to start. I called friends to ask them to send me test e-mail. The test e-mail I had sent was there. But Debbie's e-mail from federal court was not. Adding to the confusion, I received only one of the three test e-mails my friends had sent.

How was that possible? Late into the night I tried to figure it out. I knew it meant I probably had not received other important e-mails for an unknown period of time. I cursed my grand electronic, paperless practice. All I could determine was that I had not received an e-mail filing notification from the court since the 20th of the previous month - that was 30 days ago. In that time, I should have received four ECF notices of filed motions, and the two ECF orders. Since we receive paper copy from lawyers filing ECF motions, I had no reason to confirm the e-mail notification of those filings. In the morning, after fitful sleep imagining what other disasters I would soon discover, I called the 800 number of my Internet provider. Here's what the voice option said:
'Effective on the 20th, our e-mail customers have been acquired by [redacted] Internet Services.'

I called the new provider's 800 number. I was lucky. The support tech was concerned. He searched their server:
'Mr. Guyer, I have found 105 e-mails for you that apparently were not forwarded to you due to transfer protocols not having rolled over into your new account.'

He uploaded this lost e-mail into my proper account, all 105 of them. Besides all the junk mail, there were e-mails from angry clients and lawyers because I had repeatedly not responded. There were urgent e-mails from my Internet bank, and a trilogy of e-mails from a prospective client hiring me, demanding a response, and firing me - all before I ever met him. There were e-mails from my son at college, and here I had been fretting that Jared didn't write to me much anymore. And lastly, there was Debbie's test e-mail from court, and two of my friends' test e-mails. And most distressing to see were the six ECF filing notifications, all in that deep blue font indicating they had never been read. When I had asked the support tech how some e-mail could get through, but others not, he said something about 'variable switching error.'

When I recovered from all the fear and frustration, I realized I had to move to the solution stage, to make sure this could never happen to me again. I knew that the answer had to incorporate the redundancy principal of two spark plugs per cylinder, two fuel lines, two steering yokes. I thought I already had that to a reasonable degree as to e-mail. I have, like many of us, two e-mail accounts, the primary through a dial-up (or DSL or cable) ISP (Internet service provider) using the Microsoft Outlook e-mail program. I also have a free Internet e-mail account with Yahoo.com, which is of the same kind as Hotmail.com, etc. I check both accounts several times a day. The Yahoo account provides a large measure of redundancy, since I can access my ISP e-mail remotely, in case of any access problem I have to the ISP server due to hardware, program or virus problems, or because I am out of town without a computer. Unlike most ISP dial-up services, the Internet servers allow access from any computer anywhere. But now I knew that was not enough. The redundancy I needed was to ensure that any e-mail sent to me from anyone would simultaneously and automatically go to my two e-mail accounts, which of course, means on two separate servers. The chances of both servers being down or malfunctioning on the same day that an e-mail notification from a court went out to me, I figured, could be no greater than the court's paper notice being lost with the U.S. Postal Service. And, so there is no misunderstanding, I don't want to return to paper notices being sent by the courts. I am still fully committed to moving the entire system of justice, from the District of Oregon to the World Court in the Hague, to all electronic transactions.

This protective level of redundancy is available. First, Craig Meyer, the division clerk at the federal court in Medford, explained how the ECF system allows lawyers to direct as many e-mail accounts as they like to receive simultaneous notification of filings and court events. If you haven't created your free Yahoo, Hotmail or other Internet e-mail account, you should do it now, and register it with the ECF system. Secondly, the nice support tech that found my 105 missing e-mails took me through the steps of adding redundancy to my primary e-mail. If your firm has a web page and domain name (i.e., a dot.com), that means you probably have access to a second tier of e-mail redundancy. If your e-mail address format is something like lawyer@lawfirm.com like mine is, your e-mail is probably already routed or 'forwarded' by the web hosting company to your ISP e-mail address. For example, e-mail sent to me at tmguyer@tmguyer.com is actually received by me at tmguyer@attglobal.net. The setup for your web page hosting service will allow you, like the court's ECF system, to enter two or more e-mail addresses to which your dot.com e-mail will be forwarded. If your cell phone receives e-mail, you may designate that as an address for receipt of ECF notices. So now all e-mail sent to me at tmguyer.com goes to both my ISP and Yahoo e-mail addresses. The key is to ensure that your e-mail will be sent to two completely separate servers. Redundancy can't be achieved by multiple e-mail addresses on the same server. And I am sure there are even more ways to achieve e-mail redundancy than I have described.

Learning lessons the hard way is all too often the best way, especially when the consequence has been only near-disaster, rather than the malpractice claims I had imagined in the first few hours of this saga. Magistrate Judge Cooney reinstated my 10 days to file objections to the F&R he had entered dismissing my case. No 10 days ever felt better, but I have spent the first one writing this article to give the alarm to anyone wanting to listen.

ABOUT THE AUTHOR
Thad Guyer is a sole practitioner in Medford emphasizing civil rights and employment law, and family law for the Jackson County legal aid program. He designed the Southern Oregon Federal Bar Association website (www.sofedbar.org), which explains the ECF and PACER systems.

© 2002 Thad Guyer

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