There are a myriad of appendix responsibilities within the Federal Rules of Appellate Procedure (“FRAP”) and the Local Rules of the U.S. Court of Appeals for the Second Circuit, many which are time-sensitive, and the appellant is responsible for rule compliance. FRAP 30 sets forth the requirements for appendices to briefs and the appellant is responsible for filing an appendix that comports with both FRAP and the Second Circuit Local Rules. A Second Circuit appendix must contain, at a minimum, the District Court docket sheet and the relevant pleadings, charge, findings or opinion, as well as the Notice of Appeal and subject Order, Decision or Judgment. The appendix may also contain any other parts of the record to which the parties wish to draw the Court’s attention.

“Joint” appendix and joint efforts across-the-board
For most appeals, it is anticipated that the appellant will file a “joint” appendix. The appellant is expected to consult with the appellee regarding its contents.¹ This is most easily accomplished by sending a “designation letter” to the appellee for their review. Said letter should contain a list of the items the appellant intends to include in the joint appendix and gives the appellee a set timeframe in which to respond with additional designations; FRAP 30(b)(1) allows for a 14-day time period. In most instances, the appellant must include those documents designated by the appellee. If the appellant believes that the appellee is designating documents in an unreasonable or vexatious manner and feels that said documents are not necessary for the joint appendix, they must notify the appellee and may request payment for the cost of including said material. The Court disfavors motion practice concerning the parties’ positions with respect to the contents of the joint appendix.

Joint or not, the appendix is limited to record material
An important factor to keep in mind is that the appendix, whether joint or not, is limited to record material, i.e., material that was docketed in the District Court below and appears on the docket sheet for the case in question. The parties should neither designate nor include non-record material in the appendix. If a document was improperly excluded from the District Court docket, the party or parties should seek to cure such a defect before including the subject document in the appendix. Similarly, material docketed in a related case cannot be included in the appendix unless the cases have been consolidated.

No longer joint when it gets to the cost
The appellant is responsible for the cost of preparing and filing the appendix pursuant to FRAP 30(b)(2) unless the parties agree otherwise, or, as described above, the appellant believes that the appellee is designating unnecessary documents in an unreasonable or vexatious manner. The cost of preparing and filing the appendix is a taxable cost. Counsel should note that, pursuant to FRAP 30(b)(2) and Local Rule 30.1(f), the court may “impose sanctions against an attorney who unreasonably and vexatiously increases litigation costs by including unnecessary material in the appendix.”

Filing under seal
Occasionally, parties need to file their appendix under seal. If so, the appellant should contact the case manager to ascertain whether a motion for leave to file under seal is required. If the District Court issued a Protective or Sealing Order, or the like, which specifically addresses the document(s) in question, the Second Circuit will likely allow the party to file under seal as of right. If the District Court did not issue a Protective or Sealing Order or if said Order is not specific with respect to the document(s) in question, the Second Circuit will likely require a motion for leave to file under seal. Pursuant to Local Rule 25.1(j)(2) [as amended February 1, 2014], within seven days of filing sealed documents, a party must electronically file a redacted version of said sealed document(s).

Filing a deferred appendix
If the parties stipulate, or the Court on motion directs, the parties may file a deferred appendix pursuant to FRAP 30(c) and Local Rule 30.1(c) instead of filing the appendix with the opening briefs. When the parties use a deferred appendix in the Second Circuit, they submit two sets of briefs: proof briefs that are devoid of appendix citations and final form briefs which have been updated to cite to the paginated deferred appendix. Proof briefs are filed according to the briefing schedule or the applicable rules. The deferred appendix is due 21 days after the last appellee’s brief is served and the final form briefs are due 14 days thereafter. Although not used frequently in the Second Circuit, a deferred appendix can be a good option where the parties are unsure of the precise issues that will be raised on appeal or where the District Court record is voluminous. After proof briefing is completed, only those pages cited by the parties are compiled and paginated sequentially to form the deferred appendix. This may ultimately result in a smaller, more focused appendix for filing.

Filing a special appendix
A somewhat unique filing in the Second Circuit is the special appendix. The appellant is required to prepare and file a special appendix if the joint appendix is larger than 300 pages. Pursuant to Local Rule 32.1(c), the special appendix must contain the Orders, Opinions and Judgments being appealed and the text of any significant rule of law. The special appendix may be added as an addendum to the appellant’s opening brief or it may be a separately bound volume so titled.

Counsel should endeavor to comply with both FRAP and Local Rules when preparing an appendix in the Second Circuit.

Please contact Counsel Press with any questions regarding preparing and filing any appeal. We provide a full spectrum of appellate services. Our New York State offices focus on rule-compliant appellate filings in the New York State Court of Appeals, New York State Appellate Division (First-Fourth Departments), New York State Appellate Term (First-Second Departments) and the US Court of Appeals for the Second Circuit. Through our local offices, we offer unparalleled in-depth expertise nationwide in all state and federal courts.
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¹Local Rule 30.1(g) was amended February 1, 2014 to allow an appellee to submit, as of right, an appellee’s supplemental appendix where the appellant did not file a joint appendix in compliance with FRAP 30.

Tagged: Appellate Practice, United States Court of Appeals for the Second Circuit, Appellate Procedure, Litigation