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Lawyer’s e-mail virus killed client’s case
A lawyer’s virus-stricken e-mail system is no reason to overturn a ruling against his client, the 4th U.S. Circuit Court of Appeals has held.
In a 2-1 decision, the court said Charles E. Everage was “willfully blind” to the motion for judgment filed by the defendant’s lawyer.
“[C]ounsel cannot make the calculated choice to take no action with respect to his electronic inaccessibility … and then avail himself of discretionary relief from the consequences of that choice,” Judge Allyson K. Duncan wrote in a decision issued last week.
Nor could Everage’s client, Thomas Robinson, “avoid the consequences of the acts or omissions” of his lawyer, who was his “freely selected agent,” the court said.
Judge André M. Davis, who was previously a federal judge in Baltimore, agreed with Duncan but wrote a concurrence in which he pointed out the importance of the local culture on service norms.
“[T]here are districts, divisions, and cities and counties in this circuit in which what happened in this case would be highly unlikely to happen,” Davis wrote, explaining that in some jurisdictions lawyers talk to each other about motions they intend to file, and in others, court staff might call a lawyer who has failed to file a motion.
Nonetheless, he said, none of those actions are required.
“The majority opinion does no more than make explicit that which common sense and mature judgment make plain: lawyers have an obligation to their clients, to the profession, and to the court to pay attention,” Davis wrote.
Strategic decision
Robinson filed suit in federal court in Charlotte, N.C., against his former employer, Wix Filtration Corp., for wrongful termination and retaliation.
The trial judge set a deadline of Aug. 8, 2008 for any dispositive motions. Wix filed a motion for summary judgment through PACER, the court’s electronic filing system, which is supposed to generate automatic e-mail notices.
Three months later, the district court granted Wix’s unopposed motion.
Everage then filed for relief from the judgment, citing his computer problems. The trial judge denied the motion.
On appeal, Everage explained at oral argument that he made a strategic decision not to contact Wix’s lawyer after the filing deadline had passed because he did not want to alert him of the deadline, according to a footnote in the decision.
The court concluded that because Everage knew of the deadline, knew of his computer problems, and knew that any notice would arrive via e-mail, he had a responsibility to take some affirmative action — either to notify the court or opposing counsel, or to monitor the docket.
“Only [Everage] was in a position to protect Appellant from precisely what occurred here; neither the district court nor Appellees had reason to know that Appellant had not received notice of the motion,” Duncan wrote.
Duty to monitor
Jeffrey D. Keister, who represented Wix, said his argument “focused on what we felt was a well-established obligation of parties to monitor the court’s docket and be aware of their own lawsuit, especially when extended to deadlines that were already known by the parties.”
Judge Robert B. King, in his dissent, said the decision created a “duty to monitor” and lamented the implications for lawyers.
“Such a duty is antithetical to our notice-based adversarial system,” King wrote. “Such a duty will be impossible to fairly assess or apply, and simply translates to a rule of constructive service of legal papers that contradicts the applicable provisions of the Federal Rules of Civil Procedure.”
The majority denied in a footnote that it was creating a duty to monitor court dockets.
“Instead, as the concurring opinion recognizes, we merely acknowledge the existence of circumstances in which ‘lawyers have an obligation to their clients, to the profession, and to the court to pay attention,’” Duncan wrote.
Everage declined to comment on the substance of the decision, but said he did not know that any motions had been filed until he received notice that the summary judgment motion was granted.
