“I didn’t get the email,” is never an acceptable excuse. It’s doubly unacceptable when it’s in response to a judge’s order assessing attorneys’ fees. But that’s exactly what a Florida law firm was left arguing after their spam filter blocked emails from the court, leaving them unaware of the order assessing fees and thus missing the deadline to appeal. To make matters worse, the attorneys had been told that their system was faulty, yet declined to spend $700 to $1,200 a year it would cost to fix it.
The result? Nearly $394,000 in fees assessed against the firm’s client and an embarrassing opinion from the state appellate court.
What’s Worse Than Spam? This.
The spamtastrophe at issue here began as a part of a five-year eminent domain dispute between a beer distributor and a Pensacola utility. Under Florida’s constitutional law, full compensation for a government taking includes a “reasonable fee for the landowner’s counsel.” Here, those fees added up to over 1,800 attorney and paralegal hours at a rate of $150-$400 an hour. In the end, the court assessed $393,624 in attorneys’ fees against the utility.
That’s where the spam filter comes in. The court clerk served the order on the utility’s attorneys via email in March 2014. The deadline to appeal passed without any action from the utility. Then, that May, the attorneys requested that the court vacate and reenter the order to allow it to appeal, saying it had never received a copy of the order. Under Florida Rule of Civil Procedure 1.540(b), courts may relieve a party from a final judgement for "mistake, inadvertence, surprise or excusable neglect."
Unfortunately for the firm, rather than following the "longtime practice in which judges considered resetting deadlines for firms that had not received mail sent via letter carrier," ALM's Samantha Joseph reports, the court instead "took a different approach, engaging in detailed fact-finding to trace the missing electronic message."
That included testimony from a host of witnesses and experts. The court clerk’s IT director, for example, explained that the emails had been accepted by the firm’s server without any error messages, even if the attorneys had not seen them.
That testimony was followed by the firm’s former IT consultant, the opinion from Florida’s First District Court of Appeal recounts. He explained that the law firm used a defective email filtering system that “was as configured to drop and permanently delete emails perceived to be spam without alerting the recipient that the email was deleted.”
That is, once the email system decided something was spam, it was removed without a trace. There was no record created or spam folder to check. There was also, as a result, no evidence to show that the firm indeed hadn't received the email.
This was a risky setup, the consultant explained, because the server’s filtering technology was “very unreliable and created the risk of identifying and filtering legitimate emails as spam.” A recommended backup system, which could have rectified the problem, would cost $700 to $1200 a year, but the consultant’s suggestions went unheeded.
Another expert claimed that the email server did not have any backup or disaster recovery process at all. A third email specialist explained that the firm’s filtering system was so unorthodox that “he would require the client to sign a waiver exonerating him from responsibility if the client insisted on implementing such an email filtering system.”
“Based on this testimony,” the appellate court concluded, “the trial court could conclude that [the firm] made a conscious decision to use a defective email system without any safeguards or oversight in order to save money.” Thus, the trial court's conclusion that the firm’s behavior was not excusable neglect was justified, the court explained, leaving the utility on the hook for the entirety of the attorneys’ fees assessment.
Know Your Tech and Heed Expert Warnings
The Florida spam case is an important reminder that, when it comes to tech, attorneys should know what they’ve got and how it works—and when a flaw is detected, attorneys need to take it seriously.
The court decision, which was issued in early August, gained widespread attention when it was covered in an email alert by the Florida Bar Real Property Probate and Trust Law Section, according to Joseph. That decision, real estate attorney Michael Gelfand warned in that email, “may raise a duty to determine what type of email system you have, at least if you are receiving court docs, and whether the system has basic safeguards to avoid lost mail.”
“Most lawyers have no idea how their email system works,” he continued, “whether there are rejection detectors, logs, whether it is automatically turned to junk mail. Most lawyers just turn on their computer.”