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"But Your Honor, the Spam Filter Ate Your Message":

That excuse doesn't fly, says Pace v. United Servs. Automobile Ass'n, 2007 WL 2022059 (D. Colo. July 9).

The plaintiff's lawyers didn't show up to a settlement conference, because the spam filter caught the court's e-mail setting the conference date. The magistrate judge ordered the lawyers "to pay to defendant's reasonable and necessary attorney fees and expenses it incurred as a result of attending the scheduled settlement conference ... and for attending and participating in the hearings before this court [about the demand for fees]." The judge's reasoning:

[I]t would have been a very simple task to whitelist the United States District Court for the District of Colorado's domain name of "cod.uscourts.gov" to insure that such e-mails with this domain name would always be received.

Failure to perform this task makes the lawyers' failure to appear negligent and thus unjustified and sanctionable.

Tomm:
Shouldn't official court business be done through certified mail? The Spam filter excuse is pretty lame, but there are any number of circumstances under which an e-mail may be "lost" and no one would no.
8.3.2007 11:17am
Justin (mail):
Honestly, I don't think the court got this one right (without more: a second time or a history of this happening in other cases, for instance). Sanctions require some level of substantial culpability, at least negligence, and are not just an economic cost-shifting mechanism for when things go wrong. While I think a mistake like this could have been rectified (and indeed, would be profusely embarrasing if my firm were counsel in this case), I don't think it rises to negligence, and it sure doesn't rise any further than that.

That being said, I also don't think this could be reversed on appeal, due to the large discretion district courts get on their use of inherent authority.
8.3.2007 11:17am
Guest101:
Tomm,

It's not at all unusual for federal courts to conduct business exclusively through an Electronic Case Filing (ECF) system. It isn't clear that an ECF system is in place in the District of Colorado, as it appears that in this case the magistrate actually sent the hearing notice from his personal email account, but the idea that all court business is, or should be, conducted through snail mail alone is long obsolete.
8.3.2007 11:29am
Bruce Hayden (mail) (www):
I think that the court was considering this to be negligence, and in their opinion, rather gross negligence. Not surprisingly, they take themselves more seriously than probably do some here.

My worry, more than courts, is email from opposing counsel. It would be fairly simple to make sure that the court systems in your state are white listed. Indeed, you would probably be safe white listing anything that ended in *.uscourts.gov, or probably even *.gov. State courts should work similarly, with, for example, *.co.us at the end.

I have had a spam filter eat client communications before. Haven't lost any from attorneys, yet, and that worries me more. Clients are understanding, and some lose my incoming stuff to them. But attorneys are often happy to have their opposite numbers lose their communications.

I have had to deal with allegedly missed FAXes. But there, you can protect yourself by having a good paper trail on incoming and outgoing FAXes. I typically get well over a 100 spam messages a day, and the volume would seem to make the equivalent of a paper trail hard to manage.
8.3.2007 11:37am
texas lawyer (mail):
I don't think I've ever gotten a certified letter from a court. Most federal courts now use ECF, and all those communications are by e-mail. Other courts use fax or regular mail. Regular mail can be fairly automated, but I think someone has to fill out the green card by hand. That would be a huge expense. And, since the courts are on pretty tight budgets, I don't think that's money well spent.

But, even with that said, I think sanctions are a bit much for a first time violation. Many judges sanction freely without realizing the collateral effects. If you apply for pro haec vice admission, you often have to say whether you have been sanctioned. It can be a stigma, and I think judges should consider that when exercising their power.
8.3.2007 11:40am
Colo. Atty.:
Well, let's clear up the confusion.

I'm a litigator in Colorado. The D.Colo. has gone to an ECF system. We don't use paper any more. Everything is done through the ECF. Because of that, wouldn't it be negligent for an attorney to fail to take steps to ensure the court's emails came through? Also, presumably, the attorney had gotten other electronic filings. So why didn't he get this one? It smacks of a post hoc excuse. Moreso when you're familiar with the attorney in this case.

The attorney at issue, Fraklin D. Azar (or, as his ads call him--"the Strongarm") is . . . well, I'd call him slimy, but that'd be giving frogs a bad name. He's the kind of lawyer who, when other lawyers meet him, think about taking up more noble professions, like trash collectors. In fact, the local Trial Lawyers Association wrote an amicus brief against his firm when he was sued for violating our Consumer Protection Act.

It could be that my dislike for how he represents the legal profession has colored my take on this, but I think the court got the right result.

--Colo. Atty.
8.3.2007 11:45am
DWAnderson:
I am not confident that the court got this right for more substantive reasons. The whitelist solution suggested by the court does not seem like a good one. This will just lead spammers to make their messages appear as if they originated from domains that people are compelled to whitelist.
8.3.2007 11:46am
Dave N (mail):
The EM/ECF system works rather well--and if it is being used in that District, the magistrate judge had a right to be peeved that court business was considered "spam."

As a practice tip, one thing I discovered when my judicial district switched to EM/ECF was that you could set multipe e-mail accounts to receive filings. For example, e-mail addressed to me goes to my secretary, my office account, and a personal e-mail account (I cannot access office e-mail at home). That way, I know what has arrived from the court, even when I am on the road.

Btw, I agree with Justin that unless there was a history of such conduct by the attorney, sanctions were unwarranted in this case.
8.3.2007 11:53am
David Huberman (mail):
DWAnderson, I strongly disagree. The necessity of ensuring one receives the court's communications far exceeds any desires to see less spam.
8.3.2007 11:53am
Guest101:
DWAnderson,

That may well be the case, but if so I think it's just an inevitable cost of practicing law in the electronic age. Better to click through 50 spam messages a day than miss an ECF notification from the court-- and in any event, I've never had serious problems with spam on my work account (I believe this can generally be avoided by not using one's work account for personal or commercial purposes-- e.g., don't give it out when buying stuff online). Unlike the apparent majority, I think the sanction here was a valid exercise of the magistrate's discretion; lawyers practicing in ECF districts do and should have a professional duty to ensure that they will receive notifications of case activity, even at the cost of some personal inconvenience. Given the costs incurred by the court and the opposing party in preparing and showing up for the hearing at which the attorney here failed to appear, sanctions seem perfectly appropriate in the absence of an acceptable excuse.
8.3.2007 11:58am
Zathras (mail):
This example just shows why you should have your secretary check PACER for each case at least once a week. That avoids any such problems.
8.3.2007 11:59am
Orielbean (mail):
You'd think the firm would have an admin to double check this type of stuff. "Hey, whatever happened to that case? Did you get a date set yet?" "Nah, but I'm not worried about it."

I mean, really. Zathras has it right. And they should talk to their budget IT support staff to have this not be such a problem.
8.3.2007 12:02pm
Waldensian (mail):
Unless the guy had a history of "the dog ate my homework" excuses, this sanction seems pretty harsh to me, particularly if warnings about this problem aren't included in ECF training or setup materials.

I never heard the term "whitelisted" before today, and by the standards of the older crowd at my firm, I'm a geek. I conducted a (thoroughly scientific) poll of the associates, and despite their youth and computer savvy, none of them has whitelisted a court.gov domain.

Note also that my firm's spam filter is run by a third party; it would be very possible for them to screw something like this up. Yikes.
8.3.2007 12:03pm
Hoosier:
Were esq.'s notified ahead of that the court calendar would be provided by email?
8.3.2007 12:08pm
gr101 (mail):
Why not just have the court's emails go to an email address that only the court has? No need to spam filter that too harshly.
8.3.2007 12:14pm
Colo. Atty.:
Hoosier--

When you start practicing before the Colorado District Court, you are told that the court's communications will be accomplished by e-mail. When you file your motions, you do it electronically. We've got a basically paperless court system in the state.

--Colo. Atty.
8.3.2007 12:32pm
Rick Wilcox (www):
Just a quick note: The attorney in question may not have had a history of "the Barracuda ate my homework" behavior; however, the firm itself did in fact have a history of whitelisting other court addresses. Specifically, if you read the document, the IT administrator had already whitelisted other courts, but instead of whitelisting cod.uscourts.gov, he merely lowered the spam threshold (which makes the filter more restrictive, not less) and hoped for the best - all while not informing the attorneys of the change. This error is compounded by the fact that the firm did not have a formal policy on the management of the spam filter; I'm not seeing it explicitly stated (though I may just be over-skimming) but I'm thinking that the judge took that as equivalent to giving the IT admin carte blanche, thus not allowing the firm to distance itself from any reasonable (if erroneous) action on the part of its staff.
8.3.2007 12:35pm
Dan Weber:

So why didn't he get this one? It smacks of a post hoc excuse.


That sounds like perjury. Most anti-spam programs don't just throw away messages (unless they are super-blatant, like "V!@gr@ N0W!"), but file them someplace. It would be rather simple to show a print-out from the third-party software showing that it was in the filter.

As an aside, I help build anti-spam software (making this story particularly interesting to me and my colleagues), and how the filters work depends on how it's built. There's no single right way to do it, and all methods have trade-offs on what they do and don't recognize. The stuff I've worked on would notice that email from the same person seems good in the past, and it would "learn "about that, but the fact that this particular software didn't do that isn't necessarily a design flaw. Or maybe it was irrelevant if the sender address changed -- note how the judge said the lawyer should've whitelisted the whole domain. Maybe the sender changed from "judge_smith@court.gov" to "clerk_jones@court.gov".

Or maybe the court's IP address ended up on a DNSRBL. There's too many ways things could've gone wrong.

I agree with the theory that people need to be aware of how their anti-spam solutions work, and have a process for dealing with the false positives.
8.3.2007 12:38pm
statfan (mail) (www):
The whitelist solution suggested by the court does not seem like a good one. This will just lead spammers to make their messages appear as if they originated from domains that people are compelled to whitelist.

That was my initial thought, but then I noticed that that domain uses SPF, which a smart spam filter will check.
8.3.2007 12:49pm
Brooks Lyman (mail):
Slightly off topic, but I've had so much trouble with spam filters and such that I don't bother anyomre. It takes me about 5 minutes to vet the 50 to 100 e-mails I get each day (I use Thunderbird on a fast Mac) and I rarely miss anything important.

With the spam filter, I had to go over the collected spam anyway, to make sure that it didn't collect stuff that I wanted to read, and the settings seemed to be unable to keep up with the ingenuity of the spammers.

As for whitelisting, for sure, do it if you use the spam filter. And perhaps your business (I am in engineering, not law) is so arranged that you don't have occasional stuff coming in over the transom that that you may want to see, but mine isn't....

All that being said, I suspect that large firms with IT departments have policies something along the lines of "thou shalt not turn off the spam filter," so I can only extend my sympathy and be glad that I got out of the big corporate world when I did.
8.3.2007 12:50pm
scote (mail):

That sounds like perjury. Most anti-spam programs don't just throw away messages (unless they are super-blatant, like "V!@gr@ N0W!"), but file them someplace. It would be rather simple to show a print-out from the third-party software showing that it was in the filter.

The white list may be a great idea at firms who have their own email servers, but solo practitioners are at the mercy of their ISP or other e-mail providers who provide limited control over the spam settings. In addition to user settable SPAM filters, services like AOL bounce mail at a level that users cannot access. Many emails will never even get to the user's spam filter.
8.3.2007 1:32pm
Fub:
DWAnderson wrote at:
... The whitelist solution suggested by the court does not seem like a good one. This will just lead spammers to make their messages appear as if they originated from domains that people are compelled to whitelist.
Guest101 wrote at 8.3.2007 10:58am:
That may well be the case, but if so I think it's just an inevitable cost of practicing law in the electronic age. Better to click through 50 spam messages a day than miss an ECF notification from the court-- and in any event, I've never had serious problems with spam on my work account (I believe this can generally be avoided by not using one's work account for personal or commercial purposes-- e.g., don't give it out when buying stuff online).
Some factual points (to the best of my knowledge) --

First, spammers have long practiced fake *.gov "from" and "reply-to" fields. Anybody who hasn't received a phishing spam "from" somebody@IRS.gov, probably hasn't checked their spam box for years.

Second, not advertising an email address is fairly weak protection against winding up on a spammer's list. Anybody who hasn't had an SMTP server hammered 24/7 by dictionary attacks probably hasn't operated an SMTP server.

Some opinions --

For any court to rely solely upon e-mail for case management communication strikes me as very risky at best. The practice is an open invitation for mischief far worse than "my dog ate my homework" variety here. But because the risks mostly are borne by someone besides the courts, I suppose courts will remain rationally ignorant of those risks until some more rare event puts egg on their face.

Example: A third party with some interest in a suit's outcome relatively trivially obtains email addresses of party attorneys and courts. Third party spoofs addresses in otherwise facially valid emails (except for other headers) to parties and court. Hilarity ensues.

Obviously careful email header inspection would reveal such shenanigans, but how many attorneys or judges actually do that in the ordinary course of business?

Courts could just as readily burden party attorneys to use and accept PGP or other public/private key based method for message authentication by digital signature. That could solve both "spam filter false negative" problems as well as ensure that apparent messages from parties or courts are actual, and not spoofed.

Until courts do that, I think any court's policy requiring email communication is a disaster waiting to happen.

But maybe another cuppa java will disperse my morning pessimism.
8.3.2007 1:46pm
Guest101:
Fub,

How is the hypothetical you offer any more likely to occur, or any more of a problem when it does occur, than a party or other individual counterfeiting a judge's signature on a fake order and mailing or faxing it to the parties? Such things have happened, but I think the potential for widespread occurrence is small, for a simple reason: it's a felony to counterfeit a court order, whether electronically or in paper form. Moreover, when a court issues an order through an ECF system, that order is automatically posted to the electronic docket-- not the case, obviously, in the case of a counterfeit order, so it's a simple enough matter to verify the authenticity of a suspect order or paper simply by checking online. The fact that many federal districts have gone to an ECF-only system without anarchy breaking out provides pretty conclusive evidence that the problems aren't so substantial as you seem to think.
8.3.2007 2:09pm
E:
Wait, why wasn't there any confirmation of receipt system set up?
8.3.2007 2:43pm
CWuestefeld (mail) (www):
Spam is no longer something that just happens. It's been a couple of years since the Federal Government told us they were solving the problem by way of the CAN-SPAM legislation. There were three important effects of this:
1. State legislation was preempted.
2. Private suits seeking damage for abuse of their email systems are (AIUI) hobbled.
3. Spam now makes up well in excess of 90% of my company's incoming mail, perhaps as a result of the first two issues.

Since the government has wrested control of the problem from private hands and even State governments, it seems to me that ethically they have also assumed responsibility for it.

IANAL, and I have no idea of the legal foundation of my argument, but it seems to me that as a matter of right and wrong, it is quite unfair for a *government* court to punish for a problem rooted in their own dismal botching of the responsibilities they took on themselves. (assuming that the plaintiff's attorney's excuse is true)
8.3.2007 3:25pm
Fub:

Guest101 wrote at 8.3.2007 1:09pm:
How is the hypothetical you offer any more likely to occur, or any more of a problem when it does occur, than a party or other individual counterfeiting a judge's signature on a fake order and mailing or faxing it to the parties?
Good point, but not the type of shenanigan I had in mind. Less formal, but still important, communications between parties (eg: "Can't make the hearing date you proposed ..."), or from parties to court are much more vulnerable to intermeddling.
Such things have happened, but I think the potential for widespread occurrence is small, for a simple reason: it's a felony to counterfeit a court order, whether electronically or in paper form.
Zillions of emails feloniously violating the CAN-SPAM act are sent routinely by thugs in East Whazizstan with armies of botnets. Somehow they're never tracked down or prosecuted. I'd guess that for the right fee they or someone like them would send anything to any email address, and apparently from any other address.
Moreover, when a court issues an order through an ECF system, that order is automatically posted to the electronic docket-- not the case, obviously, in the case of a counterfeit order, so it's a simple enough matter to verify the authenticity of a suspect order or paper simply by checking online. The fact that many federal districts have gone to an ECF-only system without anarchy breaking out provides pretty conclusive evidence that the problems aren't so substantial as you seem to think.
I was addressing a fairly obvious email vulnerability, based on the courts' reliance on, or insistence on, email communications. I wan't addressing ECF generally.

"Anarchy" is not necessary for a substantial problem to occur. One event that screws up one case is a substantial problem. Not all problems need be created by forging court orders. Lesser emails, say informal queries or responses for calendar availability, notice of motions, etc., could create significant problems.

Having read further comments, I see statfan at 8.3.2007 11:49am says the courts use SPF. That's a good start to mitigate risk of spoofing court's addresses, if parties' mail servers do SPF checks. But it isn't strong sender authentication.

The risk is not that email spoofing would not be ultimately discovered. The risk is that either party, or the court, might rely on a spoofed email for even a short time before discovering it.

I've seen a wacko and not even technically proficient pro se litigant turn party email communication into an impossible circus. The opposing attorney saved himself considerable trouble by using certified mail to follow up his own communications.

How could a spoofer disrupt a case? Off the top of the head, the spoofer could email one attorney, appearing to be the opposing attorney, saying "I'll be filing an ex parte motion tomorrow morning for ..." The receiving attorney could spin wheels considerably and expensively until he figured out the email was spoofed.

Another from top of the head, spoofer sends a party attorney email with attached malware disguised as a routine case document file. Maybe attorney's AV scanning software will catch it, or maybe not. If email sender were strongly authenticated, attorney's risk wouldn't depend on good AV software.

My point is not that a huge disaster exists presently, but that without strong sender authentication, a high potential exists for major trouble not necessarily caused by either party to any particular case. That's the disaster waiting to happen.
8.3.2007 5:06pm
Readme:
In my local court, I recently saw 59(e) / 60(b) by a plaintiff who failed to respond to a motion for summary judgment. The reason? They got the email (actually, five email addresses at the firm got notice through ECF) but ignored it because of the number of things filed on deadline day (three).
8.3.2007 5:20pm