|Oregon State Bar Bulletin FEBRUARY/MARCH 2012|
Avoid Committing Malpractice, with a Few Clicks of Your Mouse
By Beverly Michaelis
Online case management and electronic case filing systems (CM/ECF) offer great convenience for lawyers and legal staff — extended hours, online document filing, easy access to court calendars and more. But with technological advancement comes peril.
In recent years, courts have punished lawyers mercilessly for CM/ECF-related mistakes.
What Can Go Wrong
In 2007, an attorney who failed to appear in Colorado was required to pay the opposing party’s attorney fees when his firm’s spam filter inadvertently blocked the court’s e-notice of a settlement conference. Pace v. United Serv. Auto. Ass’n, 2007 U.S. Dist. Lexis 49425 (D. Colo. July 9, 2007). When the firm’s I.T. administrator adjusted the spam filter to block messages with offensive content, he failed to white-list the court’s email domain. He never checked the spam filter to see whether email messages from the court were being blocked.
Two years later, the U.S. Court of Appeals for the 8th Circuit was equally unsympathetic when the losing party failed to timely file a notice of appeal because an employee at the law firm accidentally deleted an e-notice informing the parties that a final order had been issued. American Boat Co. v. Unknown Sunken Barge, 567 F.3d 348 (8th Cir. 2009).
In Kinsley v. Lakeview Reg’l Med.Ctr. LLC, 570 F.3d 586 (5th Cir. 2009) the plaintiff uploaded the wrong document to the CM/ECF system but argued that a deficiency notice directing him to refile within five working days extended the time for electronically filing a notice of appeal. The 5th Circuit disagreed. See Also In re Sulzer, No. 1:01-CV-9000, MDL Docket No. 1401, 2006 U.S. Dist. Lexis 10712, 2006 WL 4910299 (N.D. Ohio March 14, 2006). (Counsel failed to enter his email address into ECF system and did not receive notice of entry of an order. The court denied his motion for extension of time to appeal.)
In 2010, the U.S. Court of Appeals for the 4th Circuit upheld the dismissal of a wrongful termination case when the plaintiff’s lawyer failed to respond to a motion for summary judgment served by email. The lawyer told the court he never received electronic notice of the motion because of his various computer problems, including a malware virus. Robinson v. Wix Filtration Corp 599 F.3d 403 (4th Cir. 2010). The Robinson case was particularly egregious, as the lawyer knew the deadline for dispositive motions in the case was pending during the time his firm was experiencing a computer meltdown. He never checked the ECF system for docket activity and failed to inform the court of his inability to receive e-notices. To make matters worse, when Robinson became aware that the deadline had passed, he made a strategic decision not to contact opposing counsel or the court.
Last year, a lawyer in Philadelphia lost the right to pursue a $35,000 fee claim because he did not receive electronic notice of the scheduled arbitration. The lawyer relied on his wife, who was also his secretary, to retrieve and read email. When she broke her arm and was out of the office for an extended period, the lawyer simply allowed email to accumulate. He made no alternative arrangements to retrieve email, failed to hire a temporary secretary during his wife’s absence, and did not know how to use Philadelphia’s ECF system to view upcoming docket activity. As with Robinson, the lawyer did not inform the court of his inability to access email. Knox v. Patterson, PICS Case No. 11-0256 (C.P. Philadelphia, Jan. 11, 2011).
How Can Oregon Lawyers and Staff Avoid These Traps?
Understand the CM/ECF System
Attend training, watch tutorials, download manuals, read answers to frequently-asked questions, learn tips and tricks, and bookmark help desk pages by following these links:
U.S. District Court of Oregon (www.uscourts.gov/en/e-filing/cm-ecf-and-pacer);
U.S. Bankruptcy Court, District of Oregon (www.uscourts.gov/Ecf/helpdesk.cfm); and
Learn how to retrieve docket activity and search court calendars online for matters involving a specific attorney. In the U.S. Bankruptcy Court or U.S. District Court of Oregon, access the CM/ECF system, click on “Reports” in the blue navigation tab at the top of the page, click on the link “Docket Activity,” check the box “Only Cases to Which I Am Linked,” enter the desired date range, and choose “Run Report.” From the Oregon Judicial Department home page (http://courts.oregon.gov/OJD/), locate the heading “Court Calendars,” click on “Search Court Calendars,” enter a date range, enter the attorney’s name in this format: Last First Middle. Do not use commas. Include one space between names. Click “Go” or hit <enter>. By default, the OJD site searches all state courts. Narrow the search to a specific court if desired. Docket and calendaring information is also available through the Oregon Judicial Information Network (OJIN) (http://courts.oregon.gov/OJD/OnlineServices/OJIN/index.page).
Manage Your Email Carefully
Keep your email address current in the CM/ECF systems used by your office. If your address changes, remember to log in to your account and update your information.
If you download email into Outlook or a similar program, consider changing the default settings to prevent your trash from being automatically emptied each time you exit the program. Keeping your inbox lean and mean is usually a good idea, but what happens if you accidentally delete a court notice? If the trash is emptied automatically when you exit, it may be difficult, if not impossible, to recover the message. (Desktop search engines can find email that is deleted and sitting in trash, but once the trash is emptied, the messages are no longer visible to the system.) Instead, consider taking manual control of emptying your deleted items so you can review them one last time.
If you accidentally delete a court notice and empty your email program’s trash, you can attempt to undelete the file and restore its path using Recuva, a free file recovery program from Piriform (www.piriform.com/recuva). Otherwise, log in to the court’s CM/ECF system and run a docket activity report or check the court calendar online.
Know the capacity of your mailbox on the mail server and the consequences if your mailbox becomes full. In some cases, your Internet Service Provider (ISP) will block receipt of incoming messages and send a “bounce back” message if your mailbox is full. In other cases, the ISP may delete or archive older messages to make room for new messages. In either instance, you could miss an important court date.
Approach e-Filing Thoughtfully
Give documents meaningful file names so they are easily identified and distinguished. Carefully review all information entered into the ECF system, as well as the document selected for uploading. When filing is complete, check the confirmation.
Besides selecting the wrong document for uploading, other common e-filing mistakes include the following: entering incorrect party or event codes; failure to include a certificate of service; failure to associate the attorney with the filing party; failure to identify exhibits; inclusion of sensitive or confidential information; failure to segregate documents; and improper signatures. (Thankfully, at least one court has accepted a late notice of appeal in which the initial e-filing had an incorrect event code: Vince v. Rock County, 604 F.3d 391 (7th Cir. 2010).
Be aware of applicable ECF file size limitations. Jurisdictions vary, sometimes significantly. If you attempt to upload a document that is too large, your filing will be rejected and you may miss a deadline. See Satterlee v. Allen Press Inc., 455 F. Supp. 2d 1236, 1244 (D. Kan. 2006) (“While plaintiff’s counsel now contends that the documents were not filed because their large size exceeded the maximum amount allowed by the electronic filing system and that this was the fault of his legal assistant, plaintiff’s counsel bears responsibility for this oversight.…”) Adobe Acrobat can help you properly split and label large files for uploading to ECF systems.
Keep your credit card information current with the court. Required fees must be paid when documents are electronically filed. If your card has expired and the fees are not paid, your filing will be rejected even if the document was uploaded prior to the deadline. SeeKellum v. Comm’r of Social Security, 2008 FED App. 0591N, 2008 U.S. App. Lexis 21138 (6th Cir. 2008).
It is never a good idea to file at the last minute. E-filing is a somewhat tedious process: you must log in, enter the appropriate field codes, pay applicable fees, select and possibly split your documents for filing, and so on. If you lose your Internet connection, your computer crashes or you encounter other technical difficulties, there is no time for recovery. Upload documents during regular business hours when help desk staff are available and you have sufficient time to remedy any technical glitches.
Remember the adage “two heads are better than one?” Add staff email addresses to court filings whenever possible. This will ensure delivery of court notices to the attorney-of-record and designated staff members who can enter deadlines into the calendaring system. If the ECF system will not permit multiple email addresses, establish a generic email address for court notices, such as email@example.com. Set mailbox permissions to give everyone access to the generic mailbox. As a last resort, create rules in your email program to forward copies of court notices to staff. All three approaches are designed to keep important notices from slipping through the cracks. If you are ill, on vacation or simply get buried by work and don’t have time to go through your inbox, staff can monitor incoming email and docket court dates.
Know the Applicable Court Rules
Learn the rules and standing orders for each court you practice in.
Do “business hour” deadlines apply? In some jurisdictions, if your pleading is e-filed after the courthouse is closed, your document is deemed filed on the next business day.
Does the filing deadline vary based on the type of document being filed? In Minnesota, “new cases” must be filed by 5 p.m. Other documents may be e-filed up to midnight on the day of the deadline.
Are you required to serve paper copies on non-e-filing parties or the judge?
Is the court in a different time zone? (One Oregon firm believed it had “beaten the clock” by uploading a document a few minutes before the Pacific Standard Time deadline, only to discover later that Mountain Time controlled.)
Keep Your Own File
Don’t rely on third parties to keep records for you. Be the keeper of your own file. Mistakes by court personnel are rare, but they do happen.
In 2003, nearly 50,000 court files were erased in Idaho’s 3rd District Court during an overhaul of the court’s computer system. The entire case log was affected, including all civil, criminal, traffic and family court matters.
When three servers crashed in the New Orleans Civil District Court in 2010, more than 150,000 digital mortgage and conveyance records were lost. Soon after the crash, it was learned that the remote backups had also been wiped out because of a software problem.
While Oregon hasn’t experienced a technological catastrophe, our system isn’t problem-free. Two years ago, the Professional Liability Fund requested a court file only to find that a key document was missing. It was logged in to OJIN and appeared on the OJIN Case Register but was missing from the scanned court file. The court’s original paper file had been shredded. The lawyer who submitted the document had no copy in his file.
Secure Your Computer System
It is absolutely essential that you back up your computer system. This is even more critical as we become increasingly “paperless.” For more information, see the PLF practice aid, How to Backup Your Computer, available on the PLF Web site (www.osbplf.org). Select Practice Aids and Forms, then Technology.
The American Bar Association Legal Technology Resource Center offers free resources to inform and update lawyers about security issues, including links to security sites, analysis tools, security accessories and security software. These resources can be found at: www.americanbar.org/groups/departments_offices/legal_technology_resources/ resources/charts_fyis/securityresearchfyi.html.
Practice Smart Spam and Junk
While some courts have excused lawyers for missing a deadline due to an errant spam filter,1 most are not given a second chance. Follow these steps to prevent court notices and other important emails from getting blocked:
Practice white-listing. Set your spam or junk email filters to allow receipt of emails from approved senders or domains. Include courts, administrative agencies, key clients, opposing counsel and any other senders whose email you don’t want to miss. You may need to make this change at the ISP level and in the settings of your specific email program. If you aren’t sure how to white-list a sender or domain, search the Help or Support pages for your email program or provider.
Review quarantine summaries daily. Aggressive spam filters like Google’s Postini will occasionally block senders and domains you have added to your white-list if the filter finds content in the email to be possible spam. Court email addresses and domains can also change, causing new notices to be marked as spam.
Check junk mail folders daily. Approved senders and domains can make it past your ISP or server-level spam filter, then land in your email program’s junk mail folder. Outlook permits users to disable automatic filtering of junk mail to avoid this problem, but understand that if Outlook believes a message originated from a blocked sender, it will still land in your junk mail folder. The best practice is to check your junk mail folder regardless.
Is There a Safety Net?
Once you’ve learned how to retrieve docket activity online, consider making it a weekly routine. Every Friday, run a docket activity report for a specified date range or search circuit court calendars online. Compare the court’s calendar with yours and update your calendar if necessary.
Thoroughly train support staff — on CM/ECF systems, proper handling of court notices, and technology in general.
If you have no staff, consider creating a secondary email account for yourself to use exclusively for court notices. Include it in ECF court filings whenever permitted. If your primary email account goes down, you can check the second account.
If you’re experiencing problems, tell the court. The attorney who lost the right to arbitrate in Philadelphia would probably still have a viable $35,000 fee claim if he had just picked up the phone. According to the judge, “A telephone call to (my) chambers might have avoided the whole predicament.”
See Pace v. American Int’l Group, 08 C 945 (N.D. Ill; Nov.r 1, 2010) andShuey v. Schwab, Case No. 08-4727 (3rd Cir. 2009). For a discussion of these cases, see Eric Goldman’s Technology and Marketing Law Blog at http://blog.ericgoldman.org/. See posts dated Nov. 4, 2010 and Dec. 1, 2009.
ABOUT THE AUTHOR
The author is a practice management adviser with the Professional Liability Fund. She blogs at http://oregonlawpracticemanagement.com and can be contacted at (503) 639-6911 or (800) 452-6139 (toll-free in Oregon); www.osbplf.org.
© 2012 Beverly Michaelis