Do you regularly check the docket activity in your cases?  If this routine is not already a part of your practice, it probably should be, especially when your client’s appeal is on the line.

One party learned this the hard way in Two-Way Media, LLC v. AT&T Operations, Inc., a recent decision from the U.S. District Court for the Western District of Texas, which is currently on appeal before the Federal Circuit.  Here is what happened.

The parties received a notice (an “ECF” notice) from the federal court that an order had been entered granting a motion for leave to file documents under seal.  The language on the ECF notice, however, made no reference to the other rulings contained in the court’s order, including the denial of substantive post-trial motions (the entry of which triggered the time to appeal a $40 million judgment…you see where this is heading).

The court, that same day, presumably after realizing the oversight, changed the language on the docket to reflect all of its rulings, but no new ECF notices were sent out.  The appealing party did not realize this or, more importantly, the fact that the court had denied its substantive motions.  Why not?  Because the attorneys only read the description of disposition on the ECF notice, and not the Court’s actual order.

Fifty-two days later, after realizing the mistake and the fact that it had missed its appeal deadline, the appealing party asked the Court to reopen its time for filing a notice of appeal.  The court denied that request, explaining that it sends e-notices for “the convenience of the litigants,” but that it “is not sufficient for attorneys to rely on the electronic and e-mail notifications received from the ECF system, as the docket entries and notifications do not always convey the court’s disposition in its entirety.”  The court stated its expectation that lawyers are to examine the court records in their cases “with sufficient frequency” and held that lack of notice will not excuse an untimely appeal.

The implications of this ruling go well beyond e-notice misnomers.  What happens when e-notices are not sent, or are not received for some reason (e.g., spam filters, change in personnel)?  The court is not likely to accept excuses as it is your responsibility to keep track of the activity in your cases.

For those already keeping track, we want to hear from you.  How often are you checking the docket absent an ECF notice, and what systems are working for you when checking the docket means a trip to the courthouse?

– Corinne Berry Jones