Lessons from A Cautionary Tale in the Era of Efiling
Recently the 5th Circuit Court of Appeals refused to reinstate a lawsuit tossed after the plaintiff’s attorney didn’t respond to a motion for summary judgment because the attorney missed an email. The lawyer didn’t see the emailed notice because the email landed in a different folder, despite all the others finding their way into the main email box. What can you do to avoid this scenario?
What Happened?
Texas attorney Aaron F. Allison representing plaintiff Kevin Rollins missed an email from a district court (United States District Court for the Western District of Texas, Austin Division) notifying him that the defendant, Home Depot USA, Inc., had filed a motion for summary judgement. Mr. Allison didn’t respond, and the district court entered judgement against Rollins and later denied Rollins’ motion to alter the judgment. The 5th Circuit Court of Appeals affirmed the decision in what it called “a cautionary tale for every attorney who litigates in the era of e-filing.”
The appeals court noted the following:
- “Rollins’s counsel never saw the electronic notification of that motion. That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. The notification for that filing “was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as ‘other,’ instead of the main email box where all prior filings in the case were received.”
- “Nor did he check the docket after the deadline for dispositive motions had elapsed.”
- “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’”
How to Avoid This Scenario
The Appeals Court opinion outlines steps the attorney should have or could have made to avoid this judgement against his client. A system of checks and balances needs to be in place and relying on the efficacy of a single auto-generated email notification is not sufficient. Here are some suggestions for setting up a system to help ensure that you and your firm do not rely on a single email notification:
Set Up a Unique Email Account for Efiling
In a discussion about this case with Zach Glaser, Lab Coach and Advisor at Lawyerist, he suggests setting up a unique email account for the purposes of efiling. He suggests that you do not use this email account for any circumstances other than logging in to efiling systems and receiving notifications. You can set it up so that other people in the firm can access the inbox.
Check the Docket
Depending on the court, there are many ways to check for activity and filings on a docket. Services like LexisNexis CourtLink and Fastcase’s DocketAlarm let you set up email alerts. Other services like CourtAlert for Pacer let you sign up for alerts. A few courts in the PACER system have an RSS signup. If your court has the docket online but does not offer alerts you may be able to watch for changes on the web site using tools like Visualping or PageCrawl (and others).
Add Important Dates to Your Calendar
Add ticklers to your calendar to check the docket to see if something was filed that slipped past your radar. Here are some ways to calculate dates.
Check All of Your Spam Filters
If you use Outlook or Gmail (or really any email service), you probably have a filter that catches spam. However, sometimes perfectly legitimate email lands in the spam filter, often randomly, even after you have received email from that party many times. Make it a habit to check your email spam filter. If you are in a firm that has an additional layer of malware and spam protection for email, like AppRiver SpamLab or Barracuda Email Security Gateway, make sure to check the email notification you get daily (weekends included) for any emails, including attachments, that might have gotten identified as spam or malicious email. Get help from the administrator to add the court’s domain to the allowed list if you don’t know how.
Scrutinize Rules, Automations, and Filters
Microsoft Outlook and Gmail, both popular email programs, have ways to create automations that take actions such as moving an email to a certain folder and bypassing the inbox, sending an auto response, and many other productivity enhancements. However, if you are using a lot of these automations, they can start interfering with each other and malfunctioning. Use the built-in rules and filters sparingly and check them occasionally for errors or unexpected behaviors.
Additional automations you may have created through IFTTT, Zapier, or Microsoft Power Automate may have unintended consequences. Make sure to test the automations and do not ignore any notifications that they aren’t working. Also check for any automatic email activity from your document or practice management application if it integrates with your email.
Be Wary of Smart Inboxes
Microsoft Outlook has Focus Inbox, Gmail has automated categories and Priority Inbox, and there are add-ins to help you filter your inbox to see what is truly relevant, like SaneBox artificial intelligence. However, there is always a risk that these tools meant to help you may filter out important messages. Proceed with caution and learn how to turn these tools on and off.
Act Right Away
If you move email to folders or to a different repository like a practice management application or document management system, it is easy to move email to the wrong place. Dragging and dropping or choosing from a drop-down list of folders affords many opportunities for error. If you get notifications from the court, make it an action item by adding it to your task list or your calendar BEFORE you move it out of your inbox. You can also reduce errors when dragging and dropping the email to the wrong folder by creating a QuickStep in Outlook like “Categorize and Move” for court related emails.
Keep Your Inbox Clean
Separate work from personal email. If you use one email address for everything from your News and Observer subscription to Costco ads to client communications, your inbox will be overloaded, and it will be easier to miss important email. Keep your personal and work life separate, preferably in two separate inboxes (rather than switching to another inbox within the same application). You can also create instant email aliases for subscriptions or for online orders in Gmail or in Outlook.
Conditional Formatting in MS Outlook
In Microsoft Outlook you can change the appearance of an email based on multiple criteria (sender, subject, who is in the “to” line, etc.). This is a rule, but you set it up in the View settings. You can format emails from the court to appear in your inbox and in any other folder you save it to (purposely or inadvertently) with something other than the default font – perhaps Bauhaus 93 in hot pink? Anything to make it stand out. Gmail does not have conditional formatting, but they do have color labels and color-coded stars.
Conclusion
There are lots of other ways to create checks and balances for important emails, whether from the court or your clients. The 5th Circuit Court of Appeal’s opinion denying a reversal of the District Court’s judgement cited several similar cases: “Trevino, 944 F.3d at 571 (stressing that “Plaintiffs had a duty of diligence to inquire about the status of their case.”); Two-Way Media LLC v. AT&T, Inc., 782 F.3d 1311, 1317 (Fed. Cir. 2015) (no abuse of discretion where district court found it “inexcusable for . . . counsel to fail to read all of the underlying orders they received, or—at minimum—to monitor the docket for any corrections or additional rulings”); Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004) (describing counsel’s argument that the electronic-filing system was to blame as “an updated version of the classic ‘my dog ate my homework’ line”. The justices made it clear that the responsibility for managing email and notifications rests squarely with the attorney. As the courts in NC move to a unified eCourts initiative NC attorneys need to be prepared!