By David Hricik, Mercer Law School
This is not a patent case, but I have seen similar problems in prosecution, patent litigation, and related contexts over the years: an important email goes to a spam filter, or some other place, and gets left unread.
In a recent Fifth Circuit case, Rollins v. Home Depot (Here), plaintiff’s counsel was trying to settle a case when defense counsel filed and so e-served a motion for summary judgment — with a 14 day response deadline. For whatever reason, it did not get seen by the plaintiff’s lawyer. The time for response came and went, and the district court granted the defense motion. When plaintiff’s lawyer a short time later reached out to defense counsel again about settlement, defense counsel informed plaintiff’s counsel final judgment had already been entered.
Plaintiff’s counsel moved for relief from judgment under Rule 59, which was denied. On appeal, the Fifth Circuit found no abuse of discretion. Two points it made are wroth emphasizing: (1) it emphasized that plaintiff’s “counsel was plainly in the best position to ensure that his own email was working” and (2) plaintiff’s “counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.”
Ouch.
With all of us working at home more, clearly we need to be more vigilant about email traffic and deadlines. Firms need to consider ways, not only to assist with remote workers’ efforts in that regard, but to help capture emails that indicate decisions by clients (as to filing, or not, for example), and other important information.
There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.
Donald Rumsfeld
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