If you're reading this post, you probably read How Appealing, and are therefore aware of the coverage (collected here) of the divided Federal Circuit opinion in Two-Way Media, LLC v. AT&T, Inc., which affirmed a district judge’s decision not to extend the time for AT&T to appeal a $40 million judgment against it.
The coverage has justifiably focused on the “cautionary tale” aspect of the case. After losing at trial, AT&T filed four renewed motions for judgment as a matter of law, which tolled the appeal period. Three of the motions were filed under seal. The district court denied the renewed JMOL motions, but the Notices of Electronic Filing for the three sealed motions indicated only that the motions to seal had been granted. You needed to click on the link and read the orders themselves to see that the district court had denied all four JMOL motions, starting the appeal clock. The non-sealed JMOL motion was denied the same day, and the Notice of Electronic Filing reflected that fact. The Clerk later revised the docket entries to reflect that the sealing orders the denial of substantive relief, but the ECF system didn’t send revised notices. When AT&T discovered its error a few weeks after the appeal period expired, it filed motions to extend the appeal period based on “excusable neglect.” The district court denied the motion, and a divided panel of the Federal Circuit affirmed that ruling.
I think the decision likely has something to say about whether a judge ever dealt with electronic filing from the practitioner’s side. The author of the majority opinion was Judge Kathleen O’Malley, who became a district judge in 1994, before joining the Federal Circuit in 2010. Judge Evan Wallach, who became a judge of the Court of International Trade in 1995 before joining the Federal Circuit in 2011, joined the majority opinion. They affirmed the decision of Judge Orlando Garcia, who joined the state bench in 1992 and the federal bench in 1994. The dissenter was Judge Timothy Dyk, who was in private practice right up through joining the Federal Circuit in 2000.
From the perspective of electronic filing, leaving practice in 1994 or 1995 is quite different from leaving practice in 2000. The federal ECF pilot program began in 1997, before the nationwide rollout began in 2002. Numerous state courts began switching over to electronic filing during that period. There is a good chance that Judge Dyk, before he joined the bench, was involved in a case involving electronic filing or was at least part of firm discussions regarding the impending switchover.
As an attorney in private practice during the ECF rollouts, I am much more sympathetic to the case for “excusable neglect” than was the district judge or the panel majority. Particularly in a complex case, you receive a lot of Notices of Electronic Filing. I think most every litigator – particularly with an iPhone or iPad, neither of which will download from an ECF link – can understand the inclination not to read every opinion that, according to the Notice of Electronic Filing, is a routine non-substantive ruling. Even if it’s neglect not to read every filing, FRAP 4(a)(5) expressly contemplates that some neglect is excusable.
Judge Dyk did not actually address the “excusable neglect” issue, a question of fact, instead finding that the clerk had not complied with the Rule 77 requirement that the clerk serve notice of entry of judgment. But I suspect that the excusable neglect issue influenced the dissent on legal grounds.