Oregon State Bar Bulletin — JULY 2002
| E-mail and Horror |
By Thad M. Guyer
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