Wow! Welcome to the 10th Anniversary Edition of Appellate Lawyer Preparation. When PHP began this newsletter years ago, the goal was to provide guidance on complex appellate court procedures, share knowledge and best practices gleaned from years serving thousands of appellate attorneys nationwide. It’s been a decade later and it’s safe to say that our purpose still holds true. Thank you for your time and commitment- here’s to another ten years!
Although the Appellate Division First Department would prefer that all Appellants and Respondents agree on the contents of a Record on Appeal, it is only necessary to consult with the other side when a joint record or joint appendix is being filed. All parties appealing from the same order or judgment shall consult and thereafter file a joint record or joint appendix which shall include copies of all notices of appeal. Each appellant will then be responsible for the cost of preparing the joint record or joint appendix. The cost of each split will be determined by how many notices of appeal are filed.
If another Appellant does not want to share in the cost of the joint record or joint appendix and has only filed a notice of appeal to protect their client’s righ to appeal then that Appellant must officially withdraw their Notice of Appeal. If the joint record or joint appendix is filed with their notice of appeal then they will be required to share in the cost regardless if they filed a Co-Appellant (s) or Cross-Appellant’s Brief(s). The Court’s Rule is AD1 Rule 600.11 (d)).
It is imperative the Lead Appellant in the appeal contact the Co-Appellant (s) or Cross-Appellant(s) to ensure that all the Appellants are in agreement with the contents of the joint record or joint appendix. Most often the Lead Appellant is the Appellant who first served and filed their notice of appeal. Just because an Appellant has filed a notice of appeal one should not conclude that the party intends to perfect. If there is only one Appellant then a record on appeal is filed and the Appellant is not required to consult with the Respondent(s) on the contents of the record on appeal.
U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT: SEALED DOCUMENTS
There may be times when a party wants to file certain documents “under seal” in the U.S. Court of Appeals for the Second Circuit. If so, what type of documents can be sealed and what is the process for sealing them?
Presumption of Access
The Second Circuit has ruled that most judicial documents carry a “presumption of access” based on both the common law and the First Amendment.
If a document is considered a “judicial document,” overcoming the presumption of access can be justified by “specific, on-the-record findings that sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim.” If a party can overcome the presumption of access, the document will be sealed.
When is the document considered “sealed” in the Second Circuit?
If a document was sealed in the lower court, it will remain under seal in the Second Circuit. If was not sealed in the lower court, it will not be sealed without a court order from the Second Circuit. Unless told otherwise by a case manager, a party is required to file a motion for leave to seal the document. According to the court, “an informal request to seal a document will not be entertained.”
How to File Sealed Documents
If the document was sealed in the lower court or if the Second Circuit granted the motion to seal, there are certain procedures that must be adhered to when filing sealed documents. Per Local Rule 25.1(j)(2), a sealed document is exempt from electronic filing and should not be filed through ECF.
All sealed documents must be submitted in a sealed envelope, marked SEALED, and have a copy of the sealing order attached to the outside of the envelope. Once received, the case manager will update the docket entries and all parties will receive a Notice of Docketing Activity via email.
Within seven days of filing the sealed envelope, the party who filed the sealed documents must electronically file a redacted version of the document to ECF.
1 To determine if a document is considered a “judicial document” that is subject to “presumption of access,” the court has stated that, “the item must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.” United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) In addition, in Brown v. Maxwell, 929 F.3d 41, 53 (2d. Cir. 2019), the court held, “materials submitted in connection with a motion for summary judgment are subject to a strong presumption of public access…[and] materials submitted in connection with, and relevant to, discovery motions, motions in limine, and other non-dispositive motions are subject to lesser- but still substantial- presumption of public access.”
2 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006)
WHEN PERFECTING A CIVIL APPEAL IN AD3 AND AD4 WITH MULTIPLE RESPONDENTS AND/OR APPELLANTS, HOW MANY BRIEFS ARE FILED AND WHEN ARE THEY DUE?
KEVIN MOMOT | Senior Appellate Consultant | PHP
The statewide Practice Rules of the Appellate Division, Part 1250 and specifically Rule 1250.9, provides direction on the time, number and manner of filing of briefs (for the opening and reply Brief of appellant(s), Brief for respondent(s) – and additional guidance relating to cross appeals and concurrent appeals). The Third Department’s local rules of appellate practice, Part 850 (generally) and in particular Rule 850.9 dealing with time, number and manner of filing of Briefs, does not provide a distinction relating to brief filing for purposes of this article (rather the Rule provides clarification the Third Department for filing via appendix method, digital submissions, and extensions of time to file). The Fourth Department’s local rules, Part 1000 (generally) and specifically Rule 1000.9 dealing with time, number and manner of filing briefs, also does not provide for any distinction for purposes of this article (the Rule provides clarification relating to extensions of time, hardcopy requirements and digital copy specifications).
Generally, where there are multiple respondents on an appeal, each will file a brief within 30 days of service of the appellant’s submission, per Rule 1250.9(c). The appellant will then file a single reply brief, addressing the issues of each and all respondents, within 10 days of service (per Rule 1250.9(d)) of the last respondent’s brief.
On a cross appeal, the appealing parties should try to stipulate to a briefing schedule, per Rule 1250.9(f)(1)(i). The first party to perfect is designated the appellant-respondent, and the cross-appellant (designated as respondent-appellant) must file their answering brief, which includes the issues of the cross appeal, within 30 days after service of the lead appellant’s brief. The lead appellant will then have 30 days to file their reply brief, addressing the issues raised in the response and cross appeal. And finally the respondent-appellant’s reply brief is to be filed 10 days after service of
appellant’s reply brief. See general Rule 1250.9(1)(iii) through (vi).
Concurrent appeals from a single order/judgment are governed by Rule 1250.9(2) and require the appellants to perfect the appeals together. In this case the briefing schedule consists of opening briefs by the appellants, then opposition briefs by respondent(s) to be filed within 30 days, followed by reply briefs from concurrent appellants within 10 days.
WHAT ARE THE CONSEQUENCES FOR CO-APPELLANTS OR CROSS-APPELLANTS NOT CONSULTING WHEN PERFECTING AN APPEAL UTILIZING A JOINT RECORD?
ERIC J. KUPERMAN, ESQ. | Executive Vice President of Sales | PHP
When an Order is being appealed by multiple appellants, whether they are co-appellants (ie: united in interest) or cross-appellants (ie: where the appellants on appeal by and between them), the Practice Rules of the Appellate Division, §1250.9(f) dictates that a joint record or joint appendix is to be filed together with the various briefs of the parties. The Appellate Division essentially wants all parties appealing a particular Order to come to terms on the contents of the Record and include all documents giving rise to the Order being appealed as well as the respective notices of appeal in the joint record. This is done in an effort to maximize judicial economy and efficiency and avoid having a situation where multiple appellants file separate records, each containing much of the same documentation. Moreover, the Court’s rule also intends to reduce the respective costs of the parties by ordering that the parties filing the joint record “shall share equally the cost of that record or appendix.” (§1250.9(f)(2)).
Typically, the contents of a joint record on appeal are quite straightforward. To wit, they include the notices of appeal, the Order being appealed and the various motion practice which gave rise to the order being appealed. If an appeal from a trial, the trial transcript (signed), any exhibits that were admitted into evidence as well as pre/post-trial motion practice giving rise to the final Judgment. That being said, though there is generally nothing to dispute with respect to the contents of the joint record, from a practical perspective, it is always better to err on the side of caution and confirm with the other appellants that which is to be included in the joint record. By doing so, the parties are all apprised of the fact that a joint record is being prepared for everyone’s sake and that the costs of doing so are to be shared equally. If one party proceeds with the Joint Record (without the other side’s knowledge), even if all of the documents are included within the joint record, the party not consulted may take the position that since he was not consulted, he will not pay for his share of the Joint Record production. While this position is untenable and will ultimately be corrected via motion practice at the Appellate Division (compelling the unwilling party to pay for his share of the joint record), by consulting with all appellants at the outset of production of the joint record, one can avoid motion practice by confirming that all appellants are in agreement with respect to the contents of the joint record.
E-FILING TIDBITS FOR NYSCEF AND THE APPELLATE DIVISION
CAROLYN AGRO-BUONOCORE | Electronic Brief Specialist | PHP
To expand on my upcoming video, I am going into more detail about E-Filing in the Appellate Division. All NYSCEF documents must be text searchable, authorizations and letters included. All documents must be signed, a digital signature is not accepted. The size limit of a single document cannot exceed 100MB. Authorization Forms should not remain fillable, print to PDF before uploading. A Notice of Hard Copy submission form is required if a CD/Video or other reference is being filed to the court and cannot be e-filed. If a file is Sealed or Confidential, the Sealing Order from the lower court must accompany the upload and the required box checked during the e-filing. Some city and state agencies are not required to pay the filing fee, a No Fee letter must accompany the e-filing. In all criminal cases, the filing fee is waived, but a No Fee Letter must accompany the e-filing.
A Record, Joint Record or Appendix are charged $315 + $9.24 service fee = $324.42
Motions and Order to Show Cause are charged $45 + $1.35 service fee = $46.35
Service fees are non-refundable. Supplemental Records or Appendices do not require a credit card to be e-filed. Portal uploads do not require credentials or credit cards at the time of e-filing, however, if any fee is required the court must receive it by check within five business days.
First Department: When perfecting, a note of issue must be included in the e-filing. Only AD1 requires a Note of Issue. The argument time on the brief must be entered, if your brief says “Submitted” put the time as 0 (zero.) Documents e-file under the lead docket number only. For Appellate Term 1 submissions, documents should be emailed to SFC-AT1@nycourts.gov with respect to email attachment size limits (approximately 20MB in total).
Second Department: Cases and/or citations must be bookmarked. All AD2 (Portal or NYSCEF) Extension of Time of motions and affirmations in opposition to that motion must be e-filed under all docket numbers. All other documents, motions or affirmations in opposition e-file under the lead docket number only. Only for AD2 NYSCEF video submissions, a Hard Copy Submission form is e-filed to NYSCEF and the video is uploaded to the AD2 Portal after the initial e-filing with a note about the companion e-filing. Appellate Term 2 filings are filed to the AT2 Portal.
Third Department: As of January 1, 2022, Mandatory e-filing is required in all appeals in Workers’ Compensation or Unemployment Insurance matters where the notice of appeal was dated on or after January 1, 2022.
Fourth Department: (Portal or NYSCEF) all documents must be e-filed under all docket numbers. Brief covers must be a color.