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BAR BYTES
People, Processes, AND Technology:
Use All Three to Avoid Missing a Filing Deadline
By Jack Pringle
As With Information Security, So
Too With Calendaring
“This is a cautionary tale for
every attorney who litigates in an
era of e-filing.” The first sentence of
the 5th Circuit’s August 2021 opin-
ion in Rollins v. Home Depot1
is quite
the attention-grabber. But this tale
is nothing new. Attorneys must
understand the potential pitfalls of
electronic service and take reason-
able steps to avoid them.
As I have been saying for over
10 years now, you cannot blame
computers or computer software
for missed deadlines. Instead, use
knowledgeable people and sound
processes to manage this risk.
Rollins (briefly)
All attorneys using the case
management/electronic case files
(CM/ECF) system in federal courts
agree to accept service of filings
(and other documents and notices)
via email. FCRCP 5(b)(2)(E). Counsel
for Home Depot moved for summa-
ry judgment. Rollins’ counsel didn’t
see the electronic notification of the
motion because that email went
into an email folder he did not
check regularly. The deadline to file
a response passed, and the district
court granted summary judgment.
Rollins filed a motion under
FRCP 59(e) to alter or amend the
judgment. The district court de-
nied the Rule 59(e) motion. The 5th
Circuit affirmed the district court’s
decision and provided several
reasons counsel cannot blame the
electronic-filing system. These in-
cluded counsel’s obligation to make
sure his email system is working
properly, and the ability for counsel
to monitor the docket.
Looking Back: The signs were there
One upside of a blog is the abil-
ity to find previous work product
with little effort. And it turns out
that I first flagged a similar case
in April 2010. In 4th Circuit Affirms
Summary Judgment Against Party
That Failed to Respond to Summary
Judgment Due to “Computer Prob-
lems”2
there’s a discussion of a case
where a party failed to respond to a
motion for summary judgment and
claimed that
its counsel did not receive the
notice of filing due to computer
problems in his office-a virus
infecting that computer system and
the expiration of the firm’s website
domain name registration.
The 4th Circuit affirmed the dis-
trict court’s decision, based on the
language of both FRCP Rules 59(e)
and 60(b). There is a lengthy dis-
cussion of the steps counsel could
have taken to prevent missing a
deadline, including (wait for it . . . )
checking the court’s docket.
From that post:
The lesson from this opinion appears
to be fairly clear: since the CM/
ECF is the official (and sole) method
by which notice is provided in the
federal court system, if a law firm
experiences computer troubles that
might compromise the ability to re-
ceive email, then it pays to log in to
the CM/ECF (or take other action) to
monitor the progress of your cases.
Then, in August 2011, I wrote
about Missed Deadlines and “Tech-
nology Errors,”3
describing another
4th Circuit Case where that court
“reversed a District Court determi-
nation that ‘a quirk in the function-
ality of counsel’s computer calen-
dar caused counsel to miscalculate
the deadline to appeal’ a judgment
constituted ‘excusable neglect’
under Rule 4(a)(5)(A) of the Federal
Rules of Appellate Procedure.”
The takeaway then:
Symbionics emphasizes the obliga-
tion of counsel to build backup and
reasonable “redundancy” into a cal-
endaring process, to protect against
all forms of possible error. In fact,
as discussed over at the Practice
and Productivity Blog4
, “computer”
errors are generally the byprod-
uct of human error. An effective
calendar system involves people
and process, not reliance solely on a
software product.
The Lesson: Stop blaming the
computer and address the risks
Don’t be terrified, take steps
to make sure something like this
doesn’t happen:
• Know this possibility, and alert and
train those with whom you work
about it. Have a backup plan if
emails end up in the wrong place.
• Check the Docket, particularly
when dispositive filings may be
taking place.
• Have others in your organization
monitor the Docket.
• Designate other personnel from
People
Technology Process
14 SC Lawyer
FINKEL
LAW FIRM LLC
ARCHER
♦
SWEARINGEN
Divorce Attorneys
your organization to receive elec-
tronic filings.
• Check your spam and quarantine
folders regularly, and make sure
your colleagues do also.
Once you realize that computers
and computer software are not
the problem (or a potential scape-
goat), you can focus on the people
(knowledgeable and aware of the
risks) who perform the processes
(described above) to ensure dead-
lines are met.
Jack Pringle is a partner at Adams and
Reese in Columbia and some of his
practice areas include privacy, cyberse-
curity, and data management. He serves
on the SC Bar Technology Committee.
Endnotes
1
www.ca5.uscourts.gov/opinions/pub/20/
20-50736-CV0.pdf
2
www.scbusinesslawblog.com/2010/04/4th-
circuit-affirms-summary-judgment.html
3
www.scbusinesslawblog.com/2011/08/
missed-deadlines-and-technology-errors.
html
4
https://pringlepracticeblog.blogspot.com/
2011/08/humanity-of-computer-security.
html
HARRY L. GOLDBERG
MEDIATOR
Attorney At Law
CERTIFIED MEDIATOR
SINCE 1995
IN STATE & FEDERAL
COURTS
Personal Injury
Medical Malpractice
Insurance
Contracts
PO	
  Box	
  1799,	
  Columbia,	
  SC	
  	
  29202	
  
1201	
  Main	
  Street,	
  Suite	
  1800	
  
Columbia,	
  SC	
  29201	
  
Ph	
  (803)765-­‐2935	
  
Fax	
  (803)252-­‐0786	
  
hgoldberg@finkellaw.com
www.finkellaw.com
Named 2012 Columbia
Mediation Lawyer of the Year
by
The Best Lawyers in America
Christopher J. Archer, J.D.
Master in Accountancy
A. Reed Swearingen, J.D.
Master of Prof. Accounting
• Knowledge of business structures, tax basis, and trusts
• Years of business experience outside the practice of law
• Better bedside manner than any doctor we know
We treat our clients like family, our colleagues with respect, and thrive on complex property divisions.
Accepting referrals statewide. Licensed in SC and NY.
1332 Main Street, Ste. 225, Columbia, SC 29201 • 803.708.1258
www.asfamilylaw.com
July 2022 15

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People, Processes, AND Technology: Use All Three to Avoid Missing a Filing Deadline

  • 1. BAR BYTES People, Processes, AND Technology: Use All Three to Avoid Missing a Filing Deadline By Jack Pringle As With Information Security, So Too With Calendaring “This is a cautionary tale for every attorney who litigates in an era of e-filing.” The first sentence of the 5th Circuit’s August 2021 opin- ion in Rollins v. Home Depot1 is quite the attention-grabber. But this tale is nothing new. Attorneys must understand the potential pitfalls of electronic service and take reason- able steps to avoid them. As I have been saying for over 10 years now, you cannot blame computers or computer software for missed deadlines. Instead, use knowledgeable people and sound processes to manage this risk. Rollins (briefly) All attorneys using the case management/electronic case files (CM/ECF) system in federal courts agree to accept service of filings (and other documents and notices) via email. FCRCP 5(b)(2)(E). Counsel for Home Depot moved for summa- ry judgment. Rollins’ counsel didn’t see the electronic notification of the motion because that email went into an email folder he did not check regularly. The deadline to file a response passed, and the district court granted summary judgment. Rollins filed a motion under FRCP 59(e) to alter or amend the judgment. The district court de- nied the Rule 59(e) motion. The 5th Circuit affirmed the district court’s decision and provided several reasons counsel cannot blame the electronic-filing system. These in- cluded counsel’s obligation to make sure his email system is working properly, and the ability for counsel to monitor the docket. Looking Back: The signs were there One upside of a blog is the abil- ity to find previous work product with little effort. And it turns out that I first flagged a similar case in April 2010. In 4th Circuit Affirms Summary Judgment Against Party That Failed to Respond to Summary Judgment Due to “Computer Prob- lems”2 there’s a discussion of a case where a party failed to respond to a motion for summary judgment and claimed that its counsel did not receive the notice of filing due to computer problems in his office-a virus infecting that computer system and the expiration of the firm’s website domain name registration. The 4th Circuit affirmed the dis- trict court’s decision, based on the language of both FRCP Rules 59(e) and 60(b). There is a lengthy dis- cussion of the steps counsel could have taken to prevent missing a deadline, including (wait for it . . . ) checking the court’s docket. From that post: The lesson from this opinion appears to be fairly clear: since the CM/ ECF is the official (and sole) method by which notice is provided in the federal court system, if a law firm experiences computer troubles that might compromise the ability to re- ceive email, then it pays to log in to the CM/ECF (or take other action) to monitor the progress of your cases. Then, in August 2011, I wrote about Missed Deadlines and “Tech- nology Errors,”3 describing another 4th Circuit Case where that court “reversed a District Court determi- nation that ‘a quirk in the function- ality of counsel’s computer calen- dar caused counsel to miscalculate the deadline to appeal’ a judgment constituted ‘excusable neglect’ under Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure.” The takeaway then: Symbionics emphasizes the obliga- tion of counsel to build backup and reasonable “redundancy” into a cal- endaring process, to protect against all forms of possible error. In fact, as discussed over at the Practice and Productivity Blog4 , “computer” errors are generally the byprod- uct of human error. An effective calendar system involves people and process, not reliance solely on a software product. The Lesson: Stop blaming the computer and address the risks Don’t be terrified, take steps to make sure something like this doesn’t happen: • Know this possibility, and alert and train those with whom you work about it. Have a backup plan if emails end up in the wrong place. • Check the Docket, particularly when dispositive filings may be taking place. • Have others in your organization monitor the Docket. • Designate other personnel from People Technology Process 14 SC Lawyer
  • 2. FINKEL LAW FIRM LLC ARCHER ♦ SWEARINGEN Divorce Attorneys your organization to receive elec- tronic filings. • Check your spam and quarantine folders regularly, and make sure your colleagues do also. Once you realize that computers and computer software are not the problem (or a potential scape- goat), you can focus on the people (knowledgeable and aware of the risks) who perform the processes (described above) to ensure dead- lines are met. Jack Pringle is a partner at Adams and Reese in Columbia and some of his practice areas include privacy, cyberse- curity, and data management. He serves on the SC Bar Technology Committee. Endnotes 1 www.ca5.uscourts.gov/opinions/pub/20/ 20-50736-CV0.pdf 2 www.scbusinesslawblog.com/2010/04/4th- circuit-affirms-summary-judgment.html 3 www.scbusinesslawblog.com/2011/08/ missed-deadlines-and-technology-errors. html 4 https://pringlepracticeblog.blogspot.com/ 2011/08/humanity-of-computer-security. html HARRY L. GOLDBERG MEDIATOR Attorney At Law CERTIFIED MEDIATOR SINCE 1995 IN STATE & FEDERAL COURTS Personal Injury Medical Malpractice Insurance Contracts PO  Box  1799,  Columbia,  SC    29202   1201  Main  Street,  Suite  1800   Columbia,  SC  29201   Ph  (803)765-­‐2935   Fax  (803)252-­‐0786   hgoldberg@finkellaw.com www.finkellaw.com Named 2012 Columbia Mediation Lawyer of the Year by The Best Lawyers in America Christopher J. Archer, J.D. Master in Accountancy A. Reed Swearingen, J.D. Master of Prof. Accounting • Knowledge of business structures, tax basis, and trusts • Years of business experience outside the practice of law • Better bedside manner than any doctor we know We treat our clients like family, our colleagues with respect, and thrive on complex property divisions. Accepting referrals statewide. Licensed in SC and NY. 1332 Main Street, Ste. 225, Columbia, SC 29201 • 803.708.1258 www.asfamilylaw.com July 2022 15