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Michael Gelfand, attorney with Gelfand & Arpe in West Palm Beach. Photo: Melanie Bell. Michael Gelfand, attorney with Gelfand & Arpe in West Palm Beach. Photo: Melanie Bell.

A law firm’s spam filter got it widespread negative attention after a state appellate court decision revealed it knowingly kept a faulty email configuration to save $700 to $1,200 a year.

Odom & Barlow’s email was the subject of a five-page appellate decision that didn’t end well for the firm—or its client, now on the hook to pay nearly $394,000 in attorney fees to the opposing side.

Name partners Bradley S. Odom and Richard D. Barlow were counsel in an eminent domain case in which a judge issued an order assessing attorney fees. They said they did not receive the document and asked the trial court for a new order that would reset the clock on the appeal deadline.

The request should have been a fleeting issue on the motion calendar, in which the judge would determine whether there were grounds to vacate the original order and issue a new one.

But instead of a minutes-long hearing, what resulted was a cautionary tale.

In the end, the law firm was on the defensive, as consultant after consultant described a defective system that designated messages as spam and then automatically deleted them without human review.

Most damning for the firm: One consultant testified he identified the flaw, but said Barlow rejected his proposal for a superior email management system to save money.

“It should grab your attention,” read a Florida Bar Real Property Probate and Trust Law Section email alerting members to the case. “Is your firm’s email system and the firm’s docket monitoring procedures a trap for your clients and you?”

The case came from Escambia Circuit Court and Florida’s First District Court of Appeal, but the ruling reached attorneys across the state. “This decision may raise a duty to determine what type of email system you have, at least if you are receiving court docs, and whether the system has basics safeguards to avoid lost mail,” said Michael Gelfand, the bar committee member who helped put attorneys on alert. “Most lawyers have no idea how their email system works—whether there are rejection detectors, logs, whether it is automatically turned to junk mail. Most attorneys just turn on their computer.”

Court records show the motion for relief from judgment ballooned into a full-blown event with at least five witnesses. It brought in expert witnesses who testified about email platform configuration. A third party examined the law firm’s workstations for evidence of deletion, and scored the system for error messages, retries and bouncebacks. The Clerk of Court’s IT director confirmed that the court’s email server handed off the message to the correct recipient server. And multiple consultants found the law firm relied on a system with no logs, archives or backups.

An eventual challenge before a state appellate court hinged on the assertion the trial judge abused his discretion in refusing to vacate and re-enter the order.

The litigation pitted Pensacola-based beer distributor Bear Marcus Pointe LLC against Emerald Coast Utilities Authority in a dispute over the public use of a spot of land on Bear Marcus’ driveway.

Escambia Circuit Judge Gary Bergosh issued the order March 18, 2014, granting attorney fees to Bear Marcus, starting the clock on a 30-day window for appeal.

Emerald missed the deadline but filed a motion for relief on May 12, 2014. It cited Florida Rule of Civil Procedure 1.540(b), which gives courts discretion to set aside final judgments in cases with “mistake, inadvertence, surprise or excusable neglect.”

In this case, it appeared Emerald relied on a longtime practice in which judges considered resetting deadlines for firms that had not received mail sent via letter carrier. But this time, the court took a different approach, engaging in detailed fact-finding to trace the missing electronic message.

The Clerk of Court’s IT director retrieved logs showing the date and time the message reached primary and secondary email addresses for Odom & Barlow. One witness, Stephen Reyes from accounting and consulting firm Saltmarsh Cleaveland & Gund, confirmed the clerk’s office report but also examined the law firm’s computers and found no evidence Odom & Barlow had destroyed the emails.

Reyes conceded that it was fairly unusual for a company to configure their system to not create any email logs,” according to the First DCA ruling. “If the server had been configured differently, he could have had complete logs from the period in question to determine whether the server had received the emails from the clerk’s server.”

Another expert, Odom & Barlow’s IT consultant, testified he’d advised the firm in 2015 to get an online backup system, but administrators rejected the proposal.

In the end, the picture that emerged of Odom & Barlow was not sympathetic. The firm did not respond to requests for comment. It appeared to suffer another blow when opposing counsel at Fixel & Willis described a protocol that seemed designed, unlike Odom & Barlow’s, to cover any email loopholes. Fixel & Willis assigned a paralegal to check the court’s website every three weeks—building in enough time to respond to any orders posted there.

“You need to have excusable neglect to get a do-over,” commented Gelfand, who was not involved in the litigation.

Like the trial judge, the appellate court found none in Odom & Barlow’s case.

“We’re pleased with the panel’s decision,” said Bear Marcus’ appellate attorney Erik M. Figlio of Ausley & McMullen in Tallahassee. “We think it was correctly decided.”

Contact Samantha Joseph at sjoseph@alm.com. On Twitter: @SJosephWriter

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