Generally, it is the duty of the party concerned to see that the record on appeal accurately reflects proceedings in the lower court.[i] A person is considered to have waived any objection as to defects in the record, if s/he fails to employ the procedure prescribed for seeking correction or amendment.[ii] The court cannot add matter to the record before it, and make a decision based upon the new matter.[iii]
If any difference arises about whether the record truly discloses what occurred in the district court, it must be submitted to and settled by that court and the record conformed accordingly.[iv] Fed. R. App. P. 10(e)(2) provides that any omission or misstatement may be corrected and a supplemental record may be certified and forwarded either:
- on stipulation of the parties;
- by the district court before or after the record has been forwarded; or
- by the court of appeals.
Fed. R. App. P. 10(e)(3) provides that the other questions as to the form and content of the record must be presented to the court of appeals. If there is no intentional falsification or plain unreasonableness on the part of the court, the trial court is the final arbiter of any disputes arising from the preparation of the record.[v]
The record is corrected or amended to assure that the record accurately reflects the proceedings in the trial court.[vi] The rule that matters not presented to the trial court are not part of the record on appeal cannot be circumvented by attempting to correct or amend the record by inserting new material never presented to the trial court.[vii] The rule allowing supplementation of the record on appeal allows amendment of the record only to correct inadvertent omissions.[viii] Moreover, a rule allowing for the correction of the record cannot be used by the trial court to change the substance of its prior order.[ix] If it is not relevant to the appeal, or necessary for a correct decision by the reviewing court, material will not be added to the record.[x]
A federal district court judge is not authorized to strike from the record on appeal matter which was actually presented in the trial court.[xi] The necessary procedure for establishing that correction or amendment of the record is generally specified by rule.[xii] If the opposing counsel is given notice of the application for correction of the record and both parties are given an opportunity to present arguments before the district court, a submission for correction can be considered after the notice of appeal has been filed.[xiii]
[i] Stanley Educational Methods, Inc. v. Becker C.P.A. Review Course, Inc., 536 F.2d 86 (5th Cir. 1976);
[ii] Gallagher v. Fire Ins. Exchange, 950 S.W.2d 370 (Tex. 1997).
[iii] State ex rel. Cotton v. Ghee, 84 Ohio St. 3d 54, 1998-Ohio-679, 701 N.E.2d 989 (1998).
[iv]Schreier v. Weight Watchers Northeast Region, Inc., 872 F. Supp. 1 (E.D. N.Y. 1994),
[v] Cox v. General Elec. Co., 302 F.2d 389 (6th Cir. 1962); Clawans v. White, 112 F.2d 189 (App. D.C. 1940).
[vi] Adams v. Holland, 330 F.3d 398, 2003 FED App. 0152A (6th Cir. 2003);
[vii] U.S. v. Garcia, 997 F.2d 1273, 25 Fed. R. Serv. 3d 1454 (9th Cir. 1993);
[viii] Freedman, Levy, Kroll & Simonds v. Mendelson, 197 F.R.D. 276 (E.D. Va. 2000)
[ix] Farmer v. Jackson, 553 So. 2d 550 (Ala. 1989),
[x] Leary v. Stylarama of New Haven, Inc., 174 Conn. 217, 384 A.2d 377 (1978); Richards v. Cal. Mining & Dredging Syndicate, 7 Cal. 2d 196, 60 P.2d 126 (1936).
[xi] Treasure Imports v. Henry Amdur & Sons, 127 F.2d 3 (C.C.A. 2d Cir. 1942); Belt v. Holton, 197 F.2d 579 (D.C. Cir. 1952).
[xii] State ex rel. Educational Assessments Systems, Inc. v. Cooperative Educational Services of New Mexico, Inc., 110 N.M. 331, 795 P.2d 1023 (Ct. App. 1990)
[xiii] United States v. Mori, 444 F.2d 240 (5th Cir. Fla. 1971)