Of course, you've probably spotted the problem by now. What happens if a communication begins a clock running and that communication never makes it to the party whose clock is running? And, to bring it into the twenty-first century, what if that communication was a court document sent only by e-mail? This is not a new problem for me. In Ellison, one opposing service provider claimed that it had never received a DMCA notice sent to it by e-mail. Other services providers did; one other service provider did not, but generated a bounce notice, allowing counsel to fix the problem. Cf. Fed. R. Civ. P. 5(b)(2)(D), 5(b)(3) (providing respectively that service by "electronic means," if that method has been consented to, is complete upon transmission, and that such service is not effective if the sending party "learns" that it was not received).
In American Boat, the plaintiff (who lost below) presented substantial evidence that it had not received an adverse ruling on summary judgment, and only discovered the ruling in a docket review several months later. The District Court refused to reopen the time to appeal on this basis, being unconvinced of the actual nonreceipt. The Eighth Circuit reversed, remarking that:
We agree with the district court that a presumption of delivery should apply to e-mails. A jury is permitted to infer that information sent via a reliable means "such as the postal service or a telegram—was received." We have held that there is "no principled reason why a jury would not be able to make the same inference regarding other forms of communicationsuch as facsimiles, electronic mail, and in-house computer message systems—provided they are accepted as generally reliable and that the particular message was properly dispatched." However, in this case, we conclude that the appellants have made a sufficient showing to at least be entitled to an evidentiary hearing on the issue of whether they have adequately rebutted the presumption.
American Boat, slip op. at 7 (citations omitted). More important, though, is the kind of persons involved. American Boat doesn't involve a claimed failure to receive a mortgage foreclosure notice by a consumer. It involves a brand-new computer system that, for whatever reason, did not deliver materials to lawyers on both sides of the v.. As the court concluded,
In cases involving lack of notice, there is often little a party can do except swear he or she did not receive the communication. Here, where several intended recipients, most of whom are officers of the court, all said they did not receive notice, there is enough evidence to warrant an evidentiary hearing on the rebuttal of the presumption of delivery and receipt.
Id. at 8.
I think on these facts that the court came to the right conclusion. However, it could have been prevented. There seems to be little dispute that the docket itself was being kept accurately, and in a timely fashion. It's not that hard, and not that expensive—particularly on an ECF system—to check the docket frequently. In a typical federal matter, this might cost $0.16 per week per case to have a file clerk, secretary, or whomever go through the electronic dockets on PACER looking only for new entries. And that would be unusually active cases; those in which nothing had been docketed would not cost anything, and most cases would probably be only $0.08 per week. Nonetheless, that's an imperfect solution that one cannot necessarily expect all attorneys to adapt to easily—particularly when one party's interests are being represented by out-of-town counsel who rely on local counsel for procedural niceties.