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01 Oct 2005
Courts and lawyers have always sent huge amounts of routine but important correspondence by paper mail and later by fax. In recent years, the courts have been switching to e-mail, which saves both a lot of time and a lot of paper. But what happens when a lawyer never gets the e-mail that the court sent?
A recent case (read the decision here) in the Eighth Circuit addresses this question. The underlying case is a run of the mill one in which the plaintiff, American Boat, operates boats that push barges on the Mississippi, one of their boats hit a sunken wreck in 2000, and they're suing the government for failing to maintain the navigable channel.
In September 2003, the district court granted summary judgement to the government, basically saying that the plaintiffs had no case. American Boat then filed some motions to amend or reconsider to get their suit reinstated, and on November 3, the court again said no and denied their motions. Except that it apparently didn't tell them.
Many but not all of the lawyers, both for American Boat and for the government, had arranged to accept notices by e-mail. American Boat's lawyers said that the first they knew of the denial was on March 4, when they checked the case's status on PACER, the court's online case management system. By then, the deadline to appeal the denial had long since passed, so American Boat was out of luck.
On March 9th, American Boat's lawyers filed a motion to reopen the case, arguing that they hadn't received notice until the 4th. The lawyers who were supposed to get paper mail notices, one for the government and two for the plaintiffs, hadn't gotten them either, bolstering the argument, but the other government lawyer did get his e-mail.
On July 1, the district court said no again, deciding that despite what the plaintiff's lawyers said, they'd received timely notice. On July 14, American Boat filed yet another motion to reconsider, along with an affidavit from the lawyers' computer technician saying "with near to absolute certainly the November 5, 2003 notice of filing was never received by the computer at the office of [the plaintiff's lawyers]". On August 12, the district court yet again said no.
In the meantime, one of the plaintiff's lawyers at a different firm who had been getting paper mail, signed up for e-mail notices. He got confirmation mail that he'd signed up successfully on August 6, but did not get his e-mail copy of the August 12 decision.
On August 25, American Boat once again moved to reconsider, citing the August 12 failure and adding an affadavit from the first lawyer's ISP. The district court, showing if nothing else complete consistency, once more said no on September 8. So American Boat appealed to the Eighth Circuit, and a year later the appeals court decided in American Boat's favor.
The appeals court agreed that in general, in the absence of a bounce or other evidence of non-delivery, a court can assume that its e-mail has been delivered. But in this case, the district court's new system had only been running for a few weeks, and the appeals court found it persuasive that lawyers on both sides said they hadn't gotten their notices, so in this case they'd make an exception, and they directed the district court to have an evidentiary hearing to see if American Boat can appeal the original decision from 2003. Whew! Maybe the district court will say no again.
In this case American Boat was fortunate that the court's system was broken enough to lose both e-mail and paper mail to both sides. But if there had been fewer lawyers involved, only one or two on each side, and both of the government's lawyers had gotten their notices, American Boat would have been out of luck.
What's a plaintiff to do? The reality is that e-mail just isn't as reliable as paper mail due to a range of factors from software bugs in mail software to overactive spam filters. One possibility would be to check PACER more often to see when new items are added to a case's records. That would work, but it would be very labor intensive since PACER set up as a web site or a dial-in system to be checked manually by people, not computers, and it could get kind of pricey since PACER charges for every query result. (I have a PACER account I occasionally use to follow cases of interest, but I don't use it much because it gets expensive.)
What the court and lawyers need, rather than e-mail, is a way for the lawyers find out automatically when new items are added to a case's PACER records. And, by good fortune, we have just the technology: RSS and its successor Atom. RSS was originally invented to let people track when new items are added to a blog like this one, but in fact it's useful for any collection of information on the Web that changes over time.
In the next article, I'll look at applications of RSS and Atom (a more sophisticated replacement for RSS that's well on its way down the IETF standards track) and how they do and do not make e-mail obsolete.
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