E-Mail Security Post 1: How NOT to Configure Your Spam Filter

Establishing procedures for preserving and managing data is a vital undertaking for businesses and professionals that is unfortunately often overlooked. A Florida law firm learned this the hard way, losing the opportunity to make a case to recover attorney’s fees because of poor data management.

The law firm, whose e-mail system automatically filtered an e-mail from the court as spam, was not permitted to appeal the court’s decision because the deadline to file an appeal had already passed.

A Florida State intermediary appellate court ruled that the firm’s failure to timely file an appeal was not excusable neglect. Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC, 42 Fla. L. Weekly D 1753 (Fla. Dist. Ct. App. 2017).

The court heard the testimony of the firm’s former IT consultant, who stated that, contrary to his advice, the firm instituted a system in which e-mails that their system designated as spam would be automatically deleted, rather than routed to a spam mailbox. The consultant had suggested, because of the sensitive nature of a law firm’s e-mails, that they should have hired a third-party group to filter the e-mails manually.

The firm also failed to keep a record of their incoming emails.

Lawyers should certainly be familiar with the requirements regarding retention of data related to clients’ matter, including emails. See, ABCNY Formal Op. 2008-1. But this case should serve as a cautionary tale for more than just lawyers. There are a plethora of reasons that businesses might be required to keep records of their communications:

• Federal legislation like the Sarbanes-Oxley Act requires retention of records for certain industries
• The SEC and IRS impose requirements for data retention
• Local regulations might pose additional requirements
• Good recordkeeping is essential even for general tax purposes

Communications breakdowns are frequent and can lead to interpersonal conflict and even legal disputes. In such situations, information is an asset, and keeping records of your communications can be key.

If you are a business, professional or individual who would like to learn more about the legal implications of e-mail retention and data security, do not hesitate to contact Tesser, Ryan & Rochman, LLP at (212) 754-9000.

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