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Spam Filter Doesn’t Get Firm a Free Pass for Failure to File Timely Appeal

October 4, 2017

The ABA Journal reported on a cautionary tale for law firms on September 28^th. Florida law firm Odom & Barlow's failure to appeal an order assessing attorney fees by the deadline doesn't constitute excusable neglect when its e-mail system apparently perceived the order to be spam and erased it, according to an August 10^th decision by Florida's First District Court of Appeal.

The firm asked the trial judge to re-enter the order assessing attorney fees so it could file an appeal within the deadline. After a hearing that included testimony by information technology experts, the trial judge refused. The appeals court affirmed.

One of the experts who testified was William Hankins, who testified that he provided IT consulting for Odom & Barlow beginning in 2007. He said the law firm's e-mail system was configured to drop and permanently delete spam emails without alerting the recipient. Hankins said that he recommended against this configuration because the e-mail system could identify legitimate e-mails as spam. He recommended that the firm use a third party to handle spam filtering, but the firm rejected the proposal because of the cost.

Hankins said that, in 2015, he recommended the firm get an online backup system for e-mails that would cost between $700 and $1,200 a year, but the firm rejected his advice. Hankins said he stopped working for the firm because it rejected the recommendations.

Other experts testified that the order assessing attorney fees was apparently received by the law firm's server, and could have been deleted as spam as a result of the e-mail system's configuration.

"Based on this testimony," the appeals court said, "the trial court could conclude that Odom & Barlow made a conscious decision to use a defective email system without any safeguards or oversight in order to save money. Such a decision cannot constitute excusable neglect."

The Pensacola News Journal reported that the attorney fees at stake are as high as $1 million.

I'll bet the firm wishes now that it had taken the advice of Mr. Hankins. Penny-wise and pound-foolish describes many a law firm when it comes to technology.

Thanks to Sean Smith for nudging me to prioritize this story this week!

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