NEWS

New Decision: Law Firm Defective Email (Emerald Coast Utilities Authority v. Bear Marcus Pointe)
September 18, 2017

Is your firm’s email system and the firm’s docket monitoring procedures a trap for your clients and you? This is not a “condo case” but it should grab your attention.

A firm’s email system configuration and the firm’s court docket monitoring process lead the First District Court of Appeal to affirm the denial of a motion for relief of judgment. The opinion in the Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC, ___ So. 3d ___, 42 Fla. L Weekly D 1753, (Fla. 1st DCA, August 10, 2017), may become a case study for attorneys and their firms’ administrators.

In gross summary, Bear Marcus Pointe’s motion for attorney’s fees, was heard in January 2013. Over a year later, no order had been entered. In the interim Bear Marcus Pointe’s counsel assigned a paralegal to check the Court’s website every three weeks to confirm whether any orders were entered. In response to Bear Marcus Pointe’s attorneys request for a joint motion for a case management, conference, the Authority’s attorney “categorically refused to join such a motion.”

Shortly before a status conference was to occur, an order was entered awarding attorney’s fees. The Authority’s asserted that its law firm did not receive the order and was not aware of the order until Bear Marcus Pointe began execution efforts.

The opinion recited a cascade of expert testimony at trial regarding the processes necessary for an effective email system. This includes:

Not being configured to drop and permanently delete emails perceived to be spam without alerting the recipient of the deletion;

Online backup system; and,

Email logs.

Pursuant to Fla. R. Civ. P. Rule 1.540(b), the Court focused on whether there was excusable neglect. No mistake was apparent because there is no proof that the emailed order from the Court was intentionally deleted. Instead, the Court found that the Authority’s law firm’s server was deliberately configured in such a way that it could delete legitimate emails as spam without notifying the recipient, despite Odom & Barlow being warned against this configuration.

Further the law firm was warned against the configuration, and the law firm rejected recommendations for a third-party vendor and online backup system.” Thus,

Based on this testimony, the trial court could conclude that [law firm] made a conscious decision to use a defective email system without any safeguards or oversight in order to save money. Such a decision cannot constitute excusable neglect.

Citation deleted. The court also made specifically commented that the law firm could have undertaken, as its opposing counsel did, a check of the website on a regular basis.

This decision may raise the bar for those who have not been technologically astute. The appellate court took cognizance of the lack of a properly configured email system, including appropriate spam filters and backups. In addition, the court implicitly recognized the ease of taking advantage of the court’s online services.

Moving forward, it may appear now that when counsel is waiting for an order or for an event that presents a type of “drop dead” deadline, that the appropriate court’s docket be regularly checked. As a practical matter, it may also behoove attorneys to cooperate on docket review.

One may also wonder why the trial court just did not accept at face value counsel’s representations as potentially within the trial court’s discretion and instead embarked on what must have been a long hearing.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2017 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

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