A Spam Story - How One Law Firm's Spam Blocker Proved Costly to Them and to Their Client

By: Jacey Kaps, CIPP/US, PCIP, Justin M. Guido, CIPP/US and Steve D. Berlin

09.19.17

The Mailbox Rule is a contract law principle concerning acceptance of an offer. The rule relies on the concept that once a party places a legal document in the postal system, it will arrive at its destination and be read by the receiving party. This concept relies upon the postal system functioning properly and that the recipients will receive the document just as if they were together in person. One Florida law firm learned the hard way that e-mails challenge the reliance on this concept.

In a recent case arising out of Florida’s First District Court of Appeal, the same framework came into play concerning the transmission of documents, albeit, in a different context.[1] The underlying case involved eminent domain proceedings. At the conclusion of the case, the Court issued an order for the appellant to pay attorneys’ fees. The clerk of court distributed the order via e-mail as is the custom within their e-filing and distribution protocol. The attorneys for the prevailing party received the order in their e-mail box. Unfortunately, the attorneys for the party ordered to pay attorneys’ fees did not receive the order. Thus, they did not take any timely action to appeal and the order to pay became final. Once the losing party’s attorneys actually learned of the order they, requested permission to file an untimely appeal.

The facts that hurt the losing party’s attorneys are the same issues that many small to mid-size firms face. Small offices often do not have the economies of scale to employ full-time IT support. The firm outsourced its support and chose its level of IT service. The firm made two decisions that proved to be fatal in their case.

The first, is that they had to choose how to configure their spam blocker. The easiest and most cost-efficient way was to rely fully upon the Microsoft Exchange server which rejected and permanently deleted messages that appeared to be spam. However, the problem was that the Microsoft Exchange server sometimes could suspect that legitimate e-mail messages were spam. In this case, the spam blocker most-likely erased the clerk’s message.

The second issue was that the firm created neither a backup system that would have caught, nor a log that would have memorialized the Court’s order. This failure eliminated the losing party’s ability to rebut the possibility that the e-mail never arrived. Ultimately, the Court found that the law firm was negligent in managing their IT systems so this cost their clients attorneys’ fees.

This article does not seek to disparage that firm. In fact, many of the problems and decisions that were made were ones that small to mid-size firms and companies face. Instead, this article brings to light that there are issues with technology that firms and their clients must understand. Technology has been a great enabler to society, however, people must understand its collateral effects. The key lesson learned here is to integrate IT professionals into information management decision making, assess the legal impacts of each IT management system’s function, and to always keep a backup.



[1] Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC, Case No. 1D15-5714 (Fla 1st DCA 2017).