Supplementing the record in the federal courts of appeals: what if the evidence you need is not in the record?

• Author: Harris, George C.

1. INTRODUCTION

   The federal courts of appeals review district court orders and judgments on the basis of a closed record, which is limited to materials in the record when the district court made the decision under review. (1) This limitation is "fundamental" because appellate courts "lack the means to authenticate documents" and must rely on the district court's designation of submitted documents as part of the record. (2) "Litigants who disregard this process impair [the courts'] ability to perform [their] appellate function." (3)

   But what if highly relevant documents on the key issue of intent come to light after the district court has dismissed your client's contract case on summary judgment? And what if the newly uncovered documents were responsive to discovery requests and within the possession of the opposing party? Are you simply out of luck? Or are there ways to supplement the record on appeal with those documents? What if a new witness comes forward with potential testimonial statements that strongly refute a key finding of fact made against your client in the district court? Is there anything you can do to get the court of appeals to consider a sworn statement by the witness?

   Fortunately, the general rule of a closed appellate record is not absolute. Attorneys requesting that federal courts of appeals consider materials not in the district court record can rely on three possible avenues to supplement the record on appeal: (1) Rule 10(e)(2)(C) of the Federal Rules of Appellate Procedure, (2) Rule 201 of the Federal Rules of Evidence, and (3) the inherent equitable authority of the federal courts of appeals. (4) This article uses hypothetical scenarios to examine the various contexts in which each of these avenues may present a means of supplementing the record on appeal.

2. IS THERE ANY WAY TO SUPPLEMENT THE RECORD IF ...

   1. Scenario 1

      In a breach of contract action over an asset-purchase agreement, there is a dispute about the parties' intent as to whether certain patent rights are included. Communications between the opposing party and third parties evidencing an intent to include the rights come to light only after the court has dismissed the case on summary judgment against your client. The communications were within the scope of discovery requests and in the opposing party's possession at the time of discovery. On appeal, is there anything you can do to introduce the newly discovered communications? 1. Rule 10(e)(2)(C) of the Federal Rules of Appellate Procedure and Rule 201 of the Federal Rules of Evidence

      FRAP 10(e)(2)(C) and FRE 201 will not help you here. They apply only in very specific and narrow circumstances--correcting inadvertent omissions under FRAP 10(e)(2)(C) or taking judicial notice of highly indisputable facts or directly related court proceedings under FRE 201.

      1. Rule 10(e)(2)(C)

         Intended to permit correction of the appellate record to accurately reflect what happened in the district court, (5) FRAP 10 (e)(2) provides that

         [i]f anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:

         (A) on stipulation of the parties;

         (B) by the district court before or after the record has been forwarded; or

         (C) by the court of appeals. (6)

         Accordingly, most federal courts of appeals interpret FRAP 10(e)(2) to allow supplementing the appellate record "only to correct inadvertent omissions, not to introduce new evidence." (7) The courts of appeals are willing to supplement the record with materials not in the district record only if the materials were relied on in the district court proceedings and would have been introduced into the district court record but for inadvertent omission. (8)

         For example, in Ross v. Kemp, the Eleventh Circuit permitted a deposition to supplement the record even though it had not been filed in accordance with the then-recently changed Federal Rules of Civil Procedure. (9) The court found the omission inadvertent because (1) the party seeking to supplement the record had reasonably believed the deposition was filed in accordance with the Federal Rules of Civil Procedure in effect at the time of taking the deposition, and (2) both parties had relied on the deposition as part of the record in their pleadings. (10) Similarly, in Brown v. Home Insurance Company, the Eighth Circuit permitted a deposition to supplement the record when the party seeking to supplement had referenced the deposition in a motion for summary judgment but had failed to file the deposition with the district court. (11)

         Even if the omission from the district court record was not inadvertent, some federal courts of appeals allow supplementation under FRAP 10(e)(2) when (1) the proffered materials bear heavily on the merits of the issue before the court, (12) (2) a new issue arises on appeal, (13) (3) the subject of appellate review is a habeas petition or an appeal from an administrative proceeding, (14) or (4) the proffered materials have been stipulated to by both parties. (15) But aside from those specific exceptions, federal courts of appeals generally interpret FRAP 10(e) to permit supplementation only to correct inadvertent omission and not to add to the appellate record matters not considered by the district court. (16)

      2. Rule 201

         Under FRE 201, federal courts of appeals can take judicial notice of highly indisputable facts or other court proceedings that directly relate to the issues on appeal. The general rule of appellate review based on a closed record "is subject to the right of an appellate court in a proper case to take judicial notice of new developments not considered by the lower court." (17) Parties may in consequence seek to supplement the appellate record with new materials that meet the FRE 201 requirements.

         The Rule provides that, at any stage of the proceedings, a federal court of appeals may take judicial notice of "adjudicative facts" that are not subject to reasonable dispute because they are "generally known within the territorial jurisdiction of the trial court" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." (18) Thus, a "high degree of indisputability is the essential prerequisite" to courts' taking judicial notice. (19)

         In addition to highly indisputable facts relating to a pending case, the federal courts of appeals may take judicial notice of a proceeding in another court if the proceeding has a direct connection to the issues on appeal. (20) For example, in review of habeas petitions, a federal court of appeals may take judicial notice of the relevant state court documents even if they were not a part of the district court record. (21)

         Here in Scenario 1, the documents you want to bring to the attention of the court of appeals were not inadvertently omitted from the record by the party seeking their introduction, and are not highly indisputable facts in your case or a directly related court proceeding. Thus, neither FRAP 10(e)(2)(C) nor FRE 201 will be a basis to supplement the record with those documents.

         2. Inherent Equitable Authority

         What about the court's inherent equitable authority? Parties may request that the court exercise its inherent equitable authority to supplement the appellate record when changes in the law affect the outcome or when changes in the facts affect the suitability of injunctive relief or the court's subject-matter jurisdiction. And, even in the absence of such changed circumstances, courts are inclined to exercise inherent equitable authority if supplementing the record will advance the principles of fairness, truth, or judicial efficiency.

         A majority of circuits recognize the existence of the courts' equitable authority to supplement the appellate record as justice requires regardless of inadvertent omission, though the courts rarely exercise that power absent extraordinary circumstances. (22) Some courts have held that this authority is implicit in FRAP 10(e) (23) while others treat it as a part of the courts' inherent equitable powers. (24) Because FRAP 10(e) in its terms provides for supplementation only to correct inadvertent omission, this article categorizes such equitable authority as an exercise of inherent power.

         The Sixth Circuit has slowly trended towards embracing the concept of inherent equitable authority to supplement the appellate record, and, in particular, has recently exercised the power in reviewing habeas petitions. (25) While willing to allow supplementation based on inherent equitable authority in some circumstances, the Eleventh Circuit has made it clear that exercise of this inherent power is "entirely inappropriate" when a federal court of appeals reviews a case for plain error and examines the record before the district court for error that is "clear or obvious." (26)

         A federal court of appeals exercises its inherent equitable authority to supplement the record when (1) changes in the pertinent law affect the outcome, (27) or (2) changes in the facts alter either the suitability of injunctive relief (28) or the court's subject-matter jurisdiction. (29) In the absence of these specific circumstances, the court evaluates every request for supplementation on a case-by-case basis and considers whether supplementation advances the principles of fairness, truth, or judicial efficiency. (30) A stronger showing for one factor may offset a weaker showing for another factor. (31)

         In Scenario 1, a strong case can be made for supplementing the record because including the materials bears heavily on the fairness of the adjudication. At least two federal courts of appeals have permitted supplementation when misconduct by the non-proffering party directly caused the proffered materials to be absent from the district court record. In Ross, a habeas case, the Eleventh Circuit remanded for supplementation when...