Last week, a federal appellate court ruled that two law firms missed an appeal deadline in a $40 million case notwithstanding the defense that the law firms were misled by a notice of electronic filing email sent by the trial court. The decision has been the subject of quite a few news articles (such as this one in the ABA Journal) and for good reason — there is a lesson to be learned here, and attorneys who use an iPhone or other mobile device ought to know about this opinion. The decision is Two-Way Media LLC v. AT&T, Inc., No. 2014-1302 (Fed. Cir. March 19, 2015). You can get a PDF version of the opinion here, or you can read the opinion for free on Google Scholar here.
In that case, AT&T lost a jury trial and then filed, under seal, motions for a renewed Judgment as a Matter of Law or a new trial. The trial court issued orders denying the motions and entered a final judgment, which caused appeal delays to start running. However, the notice of electronic filing email that linked to the orders stated that the orders granted the motions to file under seal, without indicating that the orders also denied the relief sought in the motions. AT&T's attorneys say that they did not discover this until after the appeal deadlines had already run, but on appeal, in a 2-1 decision, the U.S. Court of Appeals for the Federal Circuit ruled that it was too late and that the trial court correctly denied the defendant's motion to extend or reopen the appeal period.
You can read the decision to learn why the court ruled, and you can read the dissent to get the opposing view. Reasonable minds can differ on whether the majority opinion or dissent reached the correct result. But in light of this decision, the lesson for lawyers is that you should not trust the wording in those notice of electronic filing emails that attorneys who practice in federal courts (and attorneys who practice in state courts that use electronic filing) get all of the time. Instead, you need to actually click the links to see what the documents say.
It seems to me the iPhone has the potential to make this situation worse, or make it better, depending upon how you use your iPhone. The danger is that many people (myself included) use the Mail app on the iPhone to triage important emails, taking a quick look at everything as it comes in so that the urgent stuff can be dealt with right away and the rest can be handled when you return to the computer in your office. I can certainly see someone reading the description in a notice of electronic filing on an iPhone, decide that the order does not require further attention, and then move on. And then later in the office, if the message is already marked read, I can see the attorney assuming that he has already dealt with the email and doesn't need to deal with it again. I don't know whether that was how it happened here — the opinion merely mentions that the notice of electronic filing was emailed to 18 attorneys for the defendant at two different law firms, without mentioning how those attorneys received and read the email. But it certainly wouldn't surprise me if at least one of those 18 attorneys first read the email on an iPhone or other smartphone.
But the iPhone also has the potential to help you avoid what happened to the defense lawyers in that case. First, you could always mark notice of electronic filing emails unread after you first look at then on your iPhone so that they will still be unread when you return to your computer and you will remember to look at the email again and download the document.
Second, you can make it a practice to always look at the actual documents on your iPhone (or iPad) when you receive the notice of electronic filing email and not just trust the label in the email. Federal court ECF links can be opened on an iPhone (and iPad), so when you get that email with the notice of electronic filing, instead of just reading the label given to the document, you can also click on the document link and read the actual document on your iPhone. Then you can see exactly what the document says. There is, however, a downside to doing this. Once you have viewed a file once using your ECF link, the next time that you try to open the document, you'll get an error message that your free view of the document has already been used, and thus you will have to go to PACER and pay to download the document to read it again. Fortunately, there are ways that you can avoid having to pay for the document to view it again. Here are two suggestions.
First, when you are viewing the document on your iPhone, save the document. There are a few ways to do this, but one easy one is to tap the icon in the middle of the bottom of the screen (the box with the arrow), and then tap on the Mail app icon. This will create a new email with the PDF file attached. You can just email it to yourself, your assistant, or whoever so that you can look at the PDF file again in the future, save it in your document management system, etc.
Second, I know that at least some federal courts let you have more than one email address associated with your account when you register for electronic filing. You can add your secretary's email address, or you can add an alternative email address for yourself. My secondary email address is my Gmail account, so if I ever use up my free view when a notice is sent to my primary email, I can always find the notice that was emailed to my Gmail account and use that ECF link to view the file again. For example, here is the form for the Eastern District of Louisiana which gives you the option to designate a second email address:
I'm sure that there are other solutions that work just as well. The key, however, is for you to come up with your own method of dealing with notice of electronic filing emails on your iPhone or other mobile devices. In light of the Two-Way Media decision, it is important that your plan for dealing with these emails includes a way to read the actual document at some point, whether it be instantly on your iPhone or iPad or later on your computer.