Folk singer Woody Guthrie had a song in which he described how he would package himself and "mail himself to you." It is a cute set of lyrics from ages ago (1962). He describes his hope that "when you see me in your mailbox," you will "cut the string and let me out" (for the younger generations, parcels were once wrapped in Kraft paper and then tied with twine).
A recurring issue with electronic mail bears mentioning. It is an important topic because the Office of Judges of Compensation Claims sends out thousands of emails each day to our users. Every time a document is electronically filed, the filer is afforded the opportunity to electronically serve that document to others involved in that case. This saves postage, paper, envelopes, and time. We estimate an annual "user" (you sending, not what we send such as notices and orders) savings in excess of $1 million.
When a document is uploaded, the filer receives a confirmation screen that can be printed or saved to the filer's records (many "print" these as a PDF and "attach" to their file copy; we used to staple paper receipts that way. Then the filer has the opportunity to select "Service Portal" to send a link to others. This is an opportunity, not a mandate, see Why Wasn't it in our email (October 2013).
In the Service Portal, the filer will be prompted with the names and email addresses of others involved with the case (red circle below) and may select those the filer wishes to serve. The filer may also add the email addresses and names of others (blue rectangle below).
So, the fact is that documents are likely to be electronically served. And, it is therefore critical for electronic filers to maintain their user profile in the electronic filing system ("e-JCC"). This is accomplished by clicking on "My Profile." This is a topic we have been stressing since at least 2012, see You Must Keep Your Profile Current (August 2012).
A judge related a situation recently with an e-JCC user's email. The judge used an email address to contact this attorney. Weeks passed without a response. When the response arrived, it included a disclaimer that "this mailbox is not continuously monitored. If your message is urgent, please call . . ." An attorney, who has supplied an address for the receipt of notices, orders, and pleadings, says that the mail is "not continuously monitored." Had Woody Guthrie sent himself to that mailbox, he might well have spent weeks "wrapped and tied" before someone finally perceived him.
In another instance, an order was emailed to the attorneys in a case, at the addresses listed in the attorney's profiles. That order required a response by attorney "A." Weeks passed without a response, prompting opposing counsel ("B") to file a motion seeking a sanction for failure to comply with the order. Attorney "A" responded to Attorney "B's" motion, and explained that while the original order had in fact arrived at Attorney "A's" registered address, Attorney "A's" staff failed to direct that order to the right people's attention, for response or action.
Periodically, we send an email to all of our registered users. Those generate a great volume of emails back to my inbox. Many are "out of office" automated replies. Some are notifying me the message was "undeliverable." These do not provide any details but merely inform me that the message did not get through. Some encourage me to "try to resend the message later." Others are merely confirmations, "your email was received." I suspect that is appreciated acknowledgment in litigation practice. Perhaps everyone could be as courteous when they receive an email?
I also get some responses that inform me the person is not at a particular business or firm any longer. These generally read something like "John Smith is no longer with our firm" and encourage me to call a particular person if I "need assistance." Some clearly alert that I have failed to connect, with a message such as "unmonitored email address," in the subject line and an explanation that I should email someone else (different name provided) if I need assistance.
Some of these ask that I "change your records." Those are easy from my perspective, "nope." The OJCC does not change its records regarding who the registered users are and what address will be used to contact them. That responsibility is on the registered users themselves. Any user changes this in their profile. That does not mean that the user needs access to a particular email account. A user that changes firms or email, need only log in and change their profile to reflect the new email.
Some of these ask that I "change your records." Those are easy from my perspective, "nope." The OJCC does not change its records regarding who the registered users are and what address will be used to contact them. That responsibility is on the registered users themselves. Any user changes this in their profile. That does not mean that the user needs access to a particular email account. A user that changes firms or email, need only log in and change their profile to reflect the new email.
The issue of misdirected email was addressed by the Florida First District recently in Emerald Coast Utilities v. Bear Marcus Pointe, 227 So.3d 752 (Fla. 1st DCA 2017). That was discussed also in Appropriate Service - A Reminder (April 2018). In Emerald Coast, an order was entered and the clerk served it by electronic mail to the parties. But, one attorney's email system was "configured to drop and permanently delete emails perceived to be spam." The attorney did not receive the order.
The attorney later argued that the firm should be relieved of responsibility under the order, because "it never received the order in time to file a timely appeal." The First District discussed "excusable neglect" and noted that refers to "clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir." That might include the example above where staff failed to direct that order to the right attorney's attention. But, the Court held "a conscious decision not to comply" is not excusable, and neither is "gross neglect."
If a lawyer does not receive an order or notice, it is possible that opportunities (to object, to move for rehearing, to appeal) might be affected. Certainly, if someone makes a mistake (the staff that failed to direct the order appropriately within the firm), then such excusable neglect might be ameliorated by the judge. This appears to be discretionary, allowing the judge to provide relief but not requiring it. Emerald Coast at 756. But if that delivery failure results because the rules were not followed and the email address was not kept updated?
A colorful workers' compensation phrase was turned decades ago. It was perhaps The Florida Supreme Court in Davis v. Edwin Green, Inc., 240 So.2d 4 (Fla. 1970) that first gave us a "wall of willful ignorance." That phrase has been repeated since by various Florida judges and Courts. The Davis Court concluded that one may not "insulate" oneself from knowledge, and then claim surprise (like Captain Renault in Casablanca, "I am shocked - SHOCKED . . ."). Potentially, a court might conclude that failing or refusing to keep an address current, or intentionally not monitoring an email inbox (or U.S. Mail box) might be seen in the "wall of willful ignorance" vein.
It seems that the better course is to keep that email address updated. Electronic mail is how orders and notices will come to you. That is the paradigm now. The only way the OJCC can get these important documents to you is if you take the time to keep your profile current. Don't be willfully ignorant. Don't face having to explain how shocked you are. And, please don't leave poor Woody wrapped up and stuck in that mailbox.
