Court to Lawyer: Whitelist the Court Domain Name!


This isn’t the first time this has happened [link] – that a lawyer receives an electronic notice from the other side or the court and blames it on the spam filter – but the consequences here are more severe than previously imposed by other courts:  Pace v. United Servs. Auto Ass'n, Case No. 05-cv-01562-LTB-MJW, D. Co., 2007 U.S. Dist. LEXIS 49425, July 9, 2007 [.pdf].

The basic facts are that the court issued a Minute Order setting a settlement conference.  Plaintiff’s counsel failed to appear and the court issued a Show Cause.  Defendant filed a Motion for Fees and Costs.  Why did Plaintiff’s counsel fail to appear?

Their IT administrator failed to “whitelist” the court domain name and as a result the lawyers did not receive any of the notices.  As the court points out, lawyers are “responsible persons to adopt internal office procedures that ensure the court's notices and orders are brought to their attention once they have been received.”  The court allows the request for attorney’s fees and kicks the actual amount to a future hearing.

My take:  the sanction seems excessive (even assuming just the costs of attending the single settlement conference are allowed).  The firewall software was installed on May 21, 2007 the same day the court issued the initial Minute Order.  The court seems to go through an awful lot of trouble to prove its point (e.g., calling the IT administrator as a witness, examining the firewall log).  The court even seemed peeved that some other courts were whitelisted but it was not:  

as of the date of this hearing on June 20, 2007, Mr. Rea still had not whitelisted this court's domain name even though he previously whitelisted the court domain names of the Colorado State Courts prior to May 21, 2007. . . . See Barracuda Spam Firewall log sheets attached to Mr. Rea's affidavit which shows e-mails from Colorado State Courts were not blocked because they were whitelisted (docket no. 137-2)

NB:  reading between the lines, not a great endorsement for the “Barracuda Spam Firewall software,” which the hapless IT administrator happened to install at the law firm.  

Also, maybe worth having a feathers-like system for fed ct. dockets, which I’m sure some firms have – something which automatically logs in and updates the docket from PACER. 
  

 
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Comments

  • 7/13/2007 5:56 AM ray wrote:
    be warned, the courts do not follow the law of the internet; you must exclue the 1000 character with carriage return rule on firewall or you can block their incoming notices. Been there done that.
    Reply to this
  • 7/16/2007 6:00 AM Derek wrote:
    Better yet, Spam Vendors should work with IT directors to make sure the products they select won't put them in this situation. A filter with a Quarantine would have given them a second chance at not missing this. They used the B200, which doesn't have one.
    Sometimes, a rush to judgment in a solution isn't the best route... And neither is stepping over dollars to save pennies.
    And, for the record, I work for an anti-spam appliance vendor (espionintl.com) and my wife works for attorneys--this story hits close to home, for both of us!

    Like with any product solution, a bit more research would have probably mitigated this issue. Brings to light a good thing for those in the market for such appliances to think about.
    Reply to this
  • 7/16/2007 3:08 PM ohwilleke wrote:
    The sanctioned firm was Frank Azar's firm, which is a big TV ad based personal injury shop.

    While strictly speaking irrelevant, the fact that this is a huge operation that can afford the sanction and has a special need to be organized since it handles so many cases may provide some context.
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  • 7/19/2007 7:13 AM joe wrote:
    whitelisting a domain is not a real solution as spammers can easily forge the sender's domain name and then get through the filters... we're using a Barracuda Spam Firewall 600 and very happy with it -- even with agressive filtering... it stopped more than 30 million spam messages in 6 months with very few false positives (mostly due to the sender being on a public RBL)
    Reply to this
  • 10/13/2007 1:01 AM John Smith wrote:
    Was there not also a printed copy mailed?

    Did the plaintiff's firm in some way waive a written copy?

    Was the court unwilling to send a hard copy?

    The stories I hear about things going wrong with electronic filing make believe that paper have some definite advantages.
    Reply to this
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