FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 41

CASES FROM THE WEEK OF OCTOBER 13, 2017

LAW FIRM’S CONSCIOUS DECISION TO USE A DEFECTIVE EMAIL SYSTEM WITHOUT SAFEGUARDS OR OVERSIGHT TO SAVE MONEY DID NOT CONSTITUTE EXCUSABLE NEGLECT WHEN THE LAW FIRM ASSERTED IT DID NOT RECEIVE A FINAL ORDER ASSESSING ATTORNEY’S FEES--BUT IT ACTUALLY DID RECEIVE IT--PRECLUDINGTHE FIRM FROM APPEALING.

Emerald Cove Utilities v. Bear Marcus Pointe, 42 Fla. L. Weekly D2131 (Fla. 1st DCA October 6, 2017):

The appellant had filed a 1.454(b) motion asking the trial court to vacate and re-enter an order assessing attorney’s fees--which the appellant alleged it never received--so that it could file a timely notice of appeal.

The evidence demonstrated that the clerk had sent the final order by email to the addresses designated by counsel for each party. As part of this evidentiary hearing, a man testified that he provided IT consulting services for the appellant’s attorneys, but about two months after the firm installed it, the email filtering system was shown to be defective in that it was configured to drop and permanently delete emails perceived to be spam without alerting the recipient that the email was deleted. The IT person advised one of the managing partners about the firm’s defective email system, and although the partner believed it was better to hire a third-party to handle spam filtering on a full-time basis, he rejected the recommendations to use a third-party vendor, because he did not want to spend the extra money. Other evidence supported a similar position.

In affirming the trial court’s refusal to vacate the order to allow the appellant to appeal the order imposing attorney’s fees, the court stated that excusable neglect is found where inaction results from clerical or secretarial error, a reasonable misunderstanding, a system gone awry, or any of the “other foibles to which human nature is heir.” However, the law requires certain diligence of those subject to it and this diligence cannot be lightly excused. A conscious decision not to comply with the requirements of law cannot constitute excusable neglect under the rule or any other equivalent.

Although the appellant claimed its counsel received no notice of the order assessing attorney’s fees until after the expiration of the time to appeal, the order was served and received by the firm’s server. The firm’s conscious decision to use a defective email system without any safeguards or oversight in order to save money simply does not excuse excusable neglect.

Additionally, there was testimony presented that opposing counsel had a procedure where an assigned paralegal would check the court’s website every three weeks to see if the court had taken any action or entered any orders. The court observed that if the appellant’s firm had a similar procedure in place, it would have received notice of the order assessing the fees in time to appeal.

Because there was no excusable neglect, the trial court’s denial of the motion to vacate was affirmed.

ORDER DENYING DEFENDANT’S REQUEST TO HAVE PLAINTIFF BEAR THE COST OF REVIEWING AND REDACTING PERSONNEL FILES REQUESTED BY PLAINTIFF IS NOT SUBJECT TO CERTIORARI REVIEW WHERE DEFENDANT FAILED TO SHOW IRREPARABLE HARM.

Walgreen Co. v. Rubin, 42 Fla. L. Weekly D2112 (Fla. 3rd DCA October 4, 2017):

In this wrongful death case brought against two pharmacies, the plaintiff alleged that a woman died of multiple drug toxicity due to the alleged negligence of the pharmacies in dispensing prescription medication. The allegation was that Walgreens had filled approximately 275 different prescriptions issued by 18 different physicians, and that CVS filled approximately 95 different prescriptions issued by 10 different physicians. Many of the prescriptions were narcotics.

Shortly after filing suit, the plaintiff propounded document requests on Walgreens. He requested the personnel files of all persons actually working in the pharmacy at Walgreens where the prescriptions were filled at the time of the fills at the issue in the lawsuit. A similar request was propounded to CVS.

Walgreens moved to have the plaintiff bear the costs of its counsel reviewing and redacting financial and health information from the personnel files of 45 pharmacists identified; CVS moved for similar arrangements.

Walgreens had submitted to the trial court an unsworn statement of its in-house paralegal stating it would take the employees 283 hours to pull and prepare the 45 files at an average hourly pay of $20.34, and that it would take 90 hours for a junior associate from outside counsel to review and redact the files at an hourly rate of $175. Walgreens asserted it would cost over $21,000 to produce the requested documents. CVS did not provide a cost estimate or any of that information.

The trial judge granted the plaintiff’s motion to compel, and directed Walgreens and CVS to produce the files for an in-camera inspection to address ancillary privacy issues. The court determined that the plaintiff would not have to bear the fees and costs of the production at that time.

First stating that the trial court correctly disregarded the unsworn statement from the Walgreens paralegal, the court then noted that even if the unsworn statement constituted evidence which could be properly considered for the trial court, the record still failed to establish irreparable harm to Walgreens.

Florida courts consistently hold that undue burden or expense arising from a discovery order does not constitute irreparable harm. The usual remedy available to a party that has incurred burdensome discovery is to recoup costs through the taxation of costs, not via certiorari.

Walgreens had relied on the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Association. However, the court distinguished that case, noting that the supreme court found unduly burdensome a discovery order in a routine slip and fall case, because it would have imposed over $90,000 in costs (when the damages sought were only $66,000). The court stated that 200 hours and over $90,000 in costs to discover a collateral issue of bias in a case where damages sought were only $66,000 was unduly burdensome.

In this wrongful death case, the court observed, unlike in Worley, the damages would be significantly higher, and the discovery sought was to a main issue not a collateral issue.

Because neither petitioner met the threshold jurisdictional requirements establishing that the trial court’s order created irreparable harm, the court dismissed the petitioners.

A PRISONER’S NEGLIGENCE ACTION AGAINST THE DEPARTMENT OF CORRECTIONS IS SUBJECT TO A FOUR-YEAR STATUTE OF LIMITATIONS.

Rogers v. Jones, 42 Fla. L. Weekly D2138 (Fla. 1st DCA October 6, 2017):

In section 95.11(5)(g), the legislature provides a one-year limitation for filing negligence actions. However, the Florida Supreme Court has recently determined that the four-year statute of limitations under section 768.28(14) governs actions where a prisoner alleges physical injury due to the negligent or wrongful acts or omissions of the employees of a governmental entity. Thus, it was error to dismiss the prisoner’s action.