ECF Fail: You Have to Read the Order
We've all done it: Read the docket description in the notice of electronic filing ("NEF") and have your paralegal download the order and add it to the pleadings file. But you have to read the order: The clerk's mis-description in an NEF could cost your client its appeal. Three of the four post-verdict JMOLs in the patent litigation were confidential, so were filed with motions for leave to seal them. The fourth JMOL wasn't. The first three NEF's read "Order granting motion for leave to file sealed documents" (referring only to the Doc. No. of the motion to seal). Then the court docketed its order denying the fourth non-confidential JMOL and an order on the opposing party's bill of costs. So, it appeared the Court still held the three confidential JMOLs under submission: But it had denied them in the original orders and the clerk "corrected" those docket entries the next day to also refer to the substantive motions: "Modified on 11/25/13, to link to doc #617." The clerk did not send new notices of the modification. The appeal delays ran while counsel thought the Court still was considering the other three motions. The District Court denied the motion to extend or reopen the appeal period. The Federal Circuit majority painfully emphasized they were constrained by an "abuse of discretion" standard of review. They couldn't reverse on the "re-open" argument under Fed. R. App. P. 4(a)(6)(A) which plainly specifies a "did not receive notice" threshold - not "received but didn't read." And the majority wasn't able to say the District Court abused its discretion in not finding the "excusable neglect or good cause" required to extend the period under Rule 4(a)(5), because: (i) It is each attorney's responsibility to read the substance an order, not just the NEF; (ii) the NEF and linked order was sent to 18 lawyers in two firms (for AT&T); (iii) several of those assistants actually downloaded copies of the orders; and (iv) the denial of fourth JMOL and ruling on bill of costs (awarded only to "prevailing parties") were red flags that should have incited further inquiry. The dissent argued the court's clerk did not comply with Rules 77 and 79, because the notices given did not accurately reflect the substance of the order. Two-Way Media LLC v. AT&T, Inc., 2015 U.S. App. LEXIS 4416 (Fed. Cir. March 19, 2015)(No. 2014-1302). Thomas K. Potter, III ( is a partner in the Securities Litigation Practice Group at Burr & Forman, LLP. Managing Partner of the Nashville office, Tom is licensed in Tennessee, Texas and Louisiana. He has over 28 years' experience representing financial institutions in litigation, regulatory and compliance matters. © 2015 by Thomas K. Potter, III (all rights reserved)
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