U.S. Court of Appeals for the Second Circuit – Appendices: When Joint Really Isn’t Joint

Vince Wiscovitch, Esq. In one of the previous articles on appeals in the Second Circuit, we addressed the requirements for an appellant to prepare a joint appendix pursuant to FRAP 30 and Local Rule 30.1. See U.S. Court of Appeals for the Second Circuit Appendices: Responsibilities of the Appellant. What happens, however, when an appellant fails to comply with the rules – either purposely or inadvertently?

Local Rule 30.1(g) was amended February 1, 2014. In pertinent part, the statute provides that an appellee may file a supplemental appendix if the appellant has not filed a joint appendix in compliance with the rules.1 Over the past year, the clerks and case managers at the Second Circuit have determined its application.

If the appellant chooses not to confer with the appellee(s) regarding the contents of the joint appendix, their filing should be titled merely “appendix.” Similarly, if the parties do confer but cannot reach an accord as to the contents, the document the appellant files should be called an appendix. In either of these situations, the appellee(s) can, as of right, file a supplemental appendix under L.R. 30.1(g).

In the past, when an appellant labeled their filing a “joint appendix,” the Court presumed the parties consulted to determine its substance. A dissatisfied appellee was, therefore, required to seek permission to file a supplemental or appellee’s appendix prior to filing. This is no longer the case.

If the parties did not agree on the material in the joint appendix, an appellee is not required to file a motion, notwithstanding the “joint” characterization. This is true whether or not the parties discussed the matter. Instead, an appellee must provide a letter outlining the lack of consultation or failure of the parties to come to an agreement when they file their supplemental appendix.

On the other hand, if the parties consulted and concurred on the contents of the joint appendix prior to filing, but the appellee subsequently decided that additional documents are needed, a motion to supplement the appendix is required. The motion should be filed in advance of filing the supplemental appendix. Remember, however, that since all of the documents in the record will already be available to the Court, it may not be necessary to supplement the (joint) appendix with additional papers.

Appendices: joint, supplemental or otherwise should be limited only to the documents, or excerpts, that the parties truly believe the Court needs to see in order to address the issues on appeal. Credence ought to be given to the adage “less is more.”

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1For the complete language of the statute, use this link: Local Rule 30.1. Appendix.

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