By Jennifer M. Jensen and Zachery J. McCraney

Courts have different rules for defining the record on appeal. Where there is variation, there is room for strategy – and error.

Readers of The Advocate are no doubt familiar with the Idaho Supreme Court rules establishing the district court clerk handling of the compilation of the appellate record, with the parties’ input.[i] And one cannot help but admire the system in the Sixth Circuit – where everything filed in the district court is electronically stamped with consecutive page numbers throughout the entire case, like Bates numbers in discovery.[ii] Accordingly, on appeal in the Sixth Circuit, counsel need only identify the page ranges of the district court record upon which they rely.[iii] It is simple and easy.

In contrast to these simple systems, the Ninth Circuit process for compiling the record is more involved. The appellant (if represented by counsel) must compile the relevant parts of the district court record and submit them as the official “Excerpts of Record” with the opening brief.[iv] The respondent may submit “Supplemental Excerpts of Record” with the answering brief.[v] And on reply the appellant may add “Further Excerpts of Record.”[vi] The point of this procedure “is to compile for the Court all parts of the record, but only those parts of the record, that are relevant and useful to the Court in deciding the appeal.”[vii]

The Ninth Circuit process is straightforward in many cases. The appellant identifies and compiles the key orders, briefing, documentary evidence, and transcripts. The respondent identifies and compiles whatever relevant portions of the record the appellant did not include. Often there is no need for Further Excerpts of Record.

But what if the appellant urges reversal on the basis of insufficient evidence at trial? There it can be trickier.

Imagine, for instance, a fraud case in which the defendant loses at trial. The plaintiffs insist that the defendant swindled them by selling them an expensive, bogus remedy for depression. The defendant appeals, arguing that there was insufficient evidence of fraudulent intent. According to the defendant, at most there was evidence that he was honestly mistaken; he had believed all along that the remedy worked.

With his opening brief, the defendant submits Excerpts of Record consisting of the district court’s order denying his motion for judgment notwithstanding the verdict, the briefing leading to that order, and the transcript of the defendant’s testimony at trial as well as most of the defense exhibits. The Excerpts of Record include no testimony or exhibits from the plaintiffs. The testimony from the plaintiffs was generally averse to the defendant, and there were emails plaintiffs put into evidence indicating that the defendant knew the remedy did not work.

By including in his Excerpts of Record only favorable evidence on the issue of fraudulent intent, the defendant (appellant) has opened himself up to an argument that his appeal should be dismissed because he violated Federal Rule of Appellate Procedure 10.[viii] Rule 10 states in relevant part, “If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.”[ix] Thus, the standard is relevance – regardless of whether the evidence is favorable.

The Ninth Circuit has taken a hard line on Rule 10 in some cases, including in a published opinion as recently as 2021, when it dismissed a civil appeal in which the appellants omitted certain evidence from the Excerpts of Record that was unfavorable to their case alleging racial animus in an interrogation.[x] The appellants omitted the testimony and reports of the interrogator, the respondent’s expert’s testimony on interviewing techniques, and another respondent witness’s reports.[xi] Dismissal occurred notwithstanding the fact that the respondent could submit the omitted evidence as its Supplemental Excerpts of Record.[xii] The point therefore was not whether the appellants’ omission could be cured but rather the appellants’ failure to comply with their Rule 10 obligations to provide all relevant evidence on appeal.[xiii]

In similar situations, the Ninth Circuit has likewise dismissed the appeal or summarily affirmed due to omissions from the appellate record that violate Federal Rule of Appellate Procedure 10.[xiv] This might seem draconian. Neither the language of Rule 10 nor the Ninth Circuit rules mandate such dismissal. But Rule 10(b)(2) does clearly state that it is incumbent on the appellant to include all relevant evidence in the record if the appellant contends that a conclusion was unsupported by the evidence. That duty brings risk. The appellant needs to anticipate what the respondent would identify as relevant and include that evidence in the Excerpts of Record. If in doubt, just include it.

Jennifer M. Jensen is Of Counsel at Holland & Hart LLP and a member of the firm’s Commercial Litigation and Appellate group. She currently serves as Idaho’s State Delegate to the American Bar Association House of Delegates. She spent a short time at the Idaho Attorney General’s Office, as a Deputy Attorney General in the appellate unit of the Criminal Law Division, and she served a one-year clerkship with the Hon. N. Randy Smith of the Ninth Circuit Court of Appeals.

Zachery J. McCraney is an associate at Holland & Hart LLP and a member of the firm’s Commercial Litigation and Appellate group. He regularly represents clients in a variety of commercial, property, and employment law matters.

[i] See Idaho App. R. 28.

[ii] See 6th Cir. R. 28(a)(1).

[iii] See Fed. R. App. P. 30(a)(1); 6th Cir. R. 28(a)(1).

[iv] 9th Cir. R. 30-1.2(a); 9th Cir. R. 30-1.3 (“A party proceeding without counsel need not file excerpts. If such a party does not file excerpts, counsel for appellee or respondent must file Supplemental Excerpts of Record that contain all of the documents that are cited in the pro se opening brief or otherwise required by Rule 30-1.4, as well as the documents that are cited in the answering brief.”).

[v] 9th Cir. R. 30-1.2(b).

[vi] 9th Cir. R. 30-1.2(c).

[vii] 9th Cir. R. 30-1.1.

[viii] See Fed. R. App. P. 3(a)(2) (“An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.”).

[ix] Fed. R. App. P. 10(b)(2).

[x] Martinez v. United States, 997 F.3d 867, 882-83 (9th Cir. 2021).

[xi] Id. at 882.

[xii] See id. at 883.

[xiii] See id.

[xiv] See, e.g., Sw. Adm’rs, Inc. v. Lopez, 781 F.2d 1378, 1380 (9th Cir. 1986) (dismissing appeal); Silva v. Riverside Cnty. Tax Collector (In re Silva), No. 21-60037, 2022 WL 2287434, at *2 (9th Cir. June 24, 2022) (summarily affirming court below); Bank of Am., NA v. Breckenridge at Mts. Edge Homeowners Ass’n, 830 F. App’x 237, 238 (9th Cir. 2020) (dismissing appeal).