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By: Marissa Dunn
E-filing has radically changed the way we practice law. No longer are the days of finding parking near the courthouse and waiting your turn in line for the clerk. So too has service by physical mail disappeared. E-service dominates in jurisdictions where e-filing is provided. But is this always a positive trend?
Compared to the olden days of receiving physical mail, it is certainly easier to overlook or accidentally delete an email. Couple that with spam filters and automatic email sorting, and this technology can seem more like a curse than a blessing.
So was the recent case of Kevin Rollins’s attorney, who missed a deadline to respond to opposing counsel’s Motion for Summary Judgment after notice of filing of the Motion was sorted into the “other” category of his email. In August, the Fifth Circuit Court of Appeals found this inexcusable, reasoning that the attorney should have ensured his email was working properly and checked the electronic docket for filings. Rollins v. Home Depot USA, Inc., No. 20-50736 (5th Cir. 2021).
Indeed, some jurisdictions place the responsibility on the lawyer to check the docket, emphasizing whether notice was sent and totally disregarding whether notice was received. This responsibility will only get stronger as access to electronic dockets becomes the norm.
For example, Wright v. Young, 297 Ga. 683, 684 (2015) held that “the issue is not whether the losing party had knowledge that judgment was entered, but rather whether the duty imposed on the court in O.C.G.A. § 15–6–21(c) [to notify the attorney of the losing party of the Court’s decision] was carried out.” (internal citations and punctuation removed). See also Veasley v. State, 272 Ga. 837, 838–39 (2000) and Moore v. State, 303 Ga. 743, 747 (2018) (both holding that missing appeal deadline due to lack of receipt of appealable order would not entitle party to extension of the deadline); Two-Way Media LLC v. AT&T, Inc., 782 F.3d 1311, 1315 (Fed. Cir. 2015) (holding that “even a complete lack of notice would not qualify as excusable neglect under Rule 4(a)(5), without some additional showing” where party missed deadline after receiving inaccurate email notification from clerk).
The moral of the story is this: take advantage of e-filing’s easy access to an online docket, and do not rely on “lack of receipt” as a defense to missed deadlines.