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News & trends
November 2007 | Volume 43, Issue 11

Ruling on e-dockets highlights new duties for attorneys

Rebecca Porter, Associate Editor

Lawyers must keep pace with courts in the electronic age or risk jeopardizing their clients’ cases, the Sixth Circuit has ruled, refusing to reopen a Texas couple’s appeal in a hip implant lawsuit.
The circuit court found that the district court did not abuse its discretion in denying the plaintiffs’ motion to reopen their appeal of a discovery ruling. It placed the blame for a missed deadline on their attorney, who failed to register his e-mail address with the court or monitor the electronic docket. (Kuhn v. Sulzer Orthopedics, Inc., 2007 WL 2287742 (6th Cir. Aug. 10, 2007).)

Suzie Kuhn was a claimant in a class action settlement against Sulzer Orthopedics, Inc., for hip implant defects. Because of the extent of her injuries, she was entitled to additional compensation under the settlement’s “extraordinary injury fund.” However, her attorney did not file her claim for additional relief in time, and she and her husband, Michael, sued him in Texas for legal malpractice, among other claims.

In that suit, the Kuhns sought discovery from Sulzer about the settlement, and Sulzer asked the Ohio district court that had overseen the multidistrict litigation to block the discovery. The court agreed and issued an order giving the Kuhns 30 days to appeal its decision.

But because James Harris, their new attorney, hadn’t registered his e-mail address with the court’s electronic filing system—and didn’t monitor the electronic docket—he didn’t receive notice that the court had issued the order, and he missed the deadline to file the appeal.

The Kuhns sought to reopen the appeal under Federal Rule of Appellate Procedure 4(a)(6), arguing that they had satisfied all the rule’s requirements and that their attorney had not received notice that the court had entered its written order. The district court denied their motion, and the Kuhns appealed to the Sixth Circuit.

The court declined to follow precedent in which other circuits had granted similar motions under the Federal Rules of Appellate Procedure because those decisions came before the electronic filing system existed. The court wrote that interpreting Rule 4(a)(6) to allow parties to ignore easily accessible electronic information “would defy common sense: It might be one thing not to penalize a party who did not learn about the issuance of an appealable order in the bygone days of hiring ‘runners’ to physically go to the courthouse to check the docket,” but all Harris had to do was register his e-mail address or periodically check the electronic docket for recent activity.

“Indeed, the unreasonableness of Harris’s conduct here is evident in that ultimately, he learned about the district court’s injunction order in precisely this way: His paralegal checked the online docket and discovered the order,” the court noted in its opinion.

Twenty-six states have adopted court rules enabling e-filing statewide or in at least one court, according to the National Center for State Courts (NCSC). By the end of 2007, all federal courts are expected to offer e-filing. The Court Management/Electronic Court Filing system (CM/ECF) is currently in 98 percent of federal courts, 92 district courts, 93 bankruptcy courts, the Court of International Trade, the Court of Federal Claims, and several others.

“In general, more states and local courts are moving in the direction of adopting e-filing, so the numbers are increasing,” said John Matthias, a court management consultant at the NCSC, in an e-mail.

“Most of the courts that have implemented or are in the process of implementing CM/ECF have made the electronic record the official record of the court and expect filings to be made electronically unless good cause is shown,” Matthias said.

He doesn’t know of any examples where plaintiffs have shown good cause. “It’s probably like obscenity, as stated by the Supreme Court—you can’t define it, but you’ll know it when you see it,” he said. “In the meantime, the responsibilities associated with undertaking e-filing are just part of the landscape now and shouldn’t be ignored.”

Craig Ball, a trial lawyer and computer forensics expert in Montgomery, Texas, said it has always been a lawyer’s responsibility to keep a current address filed with the court. “E-filing makes that easier than ever before, but it remains the lawyer’s responsibility to furnish the information,” he said.

He thinks electronic filing will make lawyers less likely to miss deadlines because it’s easier to check dockets and to file at the last second.

“I think the equities mitigate in favor of stricter enforcement for electronic notice,” Ball said. “Unlike the lone postcard that may be misdelivered or mislaid, electronic notices tend to go directly to the person who needs to see them. Further, the ability to check the docket from any place, at any time, frees us from having to tromp down to the courthouse during business hours to pull the file.”

He said often the electronic notice arrives but is overlooked. He suggested that lawyers set their e-mail programs to flag and forward sensitive items.

“Also, where paper notices were often spotted by secretaries or assistants and calendared, e-mail notices go directly (and exclusively) to the weakest link in the information chain: the lawyer,” Ball noted. “Perhaps law firms need to set up ‘notice’ e-mail addresses that several people in the firm must monitor.”

“We have been using [electronic filing] for years, and although there may be trouble when first registering, there are not a lot of problems,” said William Friedlander, a plaintiff attorney in Waverly, New York. “You cannot practice if you do not register in most federal courts that use the universal system.”

He said state court systems vary, and some, like California’s, allow both paper and electronic filing. “If both are allowed, attorneys will have issues like this poor fellow” in the hip implant case, Friedlander said. “I think this will happen more, as more and more courts move to e-filing. I feel that a universal requirement is the best way to avoid problems.”

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