Attorney never saw dismissal of e-file case coming – a ‘cautionary tale for every attorney’

Electronic filing has fundamentally changed how attorneys practice law.  Court papers can be filed and served with the click of a mouse at any time of the day. It is no longer necessary to rush to the courthouse to file documents before the doors close at 5:00pm. And there is no need to assemble paper copies of voluminous motions and mail or courier it to the opposing side.

However, for all of the benefits, e-filing has also created new challenges, which as the Fifth Circuit recently addressed in Kevin Rollins v. Home Depot, Incorporated, can result in a dismissal of a case.

Rollins v. Home Depot involved claims against Home Depot for injuries sustained by Rollins, an employee of Home Depot. The case was removed to federal court, which uses the Pacer e-filing system.  All the e-file notices generated in the case went to Rollins’s attorney’s main email box; however, an e-notice of Home Depot’s motion for summary judgment ended up in the email system’s “other” folder.  As a result, the attorney did not see the notice, and did not file an opposition to the summary judgment motion, which the district court granted without opposition.  The attorney filed a motion to alter the judgment, which the district court denied.

The Fifth Circuit Court of Appeals upheld the district court’s decision, and in the first sentence of the opinion (which is linked below) warned that, “This is a cautionary tale for every attorney who litigates in the era of e-filing.”  The court concluded that an email glitch which was in the attorney’s control is not a valid reason why it should vacate the lower court’s decision.

This case is a stark reminder that attorneys must be hyper vigilant when it comes to electronic notices and their internal office email systems. To avoid a worst-case-scenario, such as a dismissal, attorneys should implement internal protocols to ensure that e-filings notices are never overlooked. It may be prudent to open a separate email account on a different system or server (such as Gmail or Yahoo) to receive duplicate e-notices, so that a notice does not get missed. Or, there is calendaring and docketing software that will receive e-notices and calendar the due date for attorneys.

Failure to protect against a missed e-notice may violate the rules of professional conduct (see Comment 8 to ABA Model Rule 1.1, Competence, which states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”)

A copy of the Fifth Circuit Court of Appeal’s decision in Kevin Rollins v. Home Depot, Incorporated, can be viewed or downloaded here.


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