Generally, the timely transmission and filing of the record with the reviewing court is the duty of the appellant.[i] The time within which the record on appeal must be lodged is specified by rule.[ii] However, the trial court’s plenary power over a final judgment does not affect the time limits for the filing of the record in the appellate court.[iii] Application for an extension of time is properly made to the trial court in some jurisdictions.[iv]
Filing of a notice of appeal triggers the running of the applicable time period under some rules.[v] The limitation period may begin when the reviewing court issues a finding that the order of which review is sought is appealable, in the case of an interlocutory appeal.[vi]
Pursuant to the Federal Rules of Appellate Procedure, the appellant is obliged to order the transcript and instruct the clerk of the district court to prepare the record. Fed. R. App. P. 11(a) provides that the appellant must comply with the provisions of the rules relating to the ordering of the transcript and also to take any other action necessary to enable the clerk to assemble and transmit the record.
Fed. R. App. P. 11(b)(1) provides that the court reporter must acknowledge receipt of the order upon receiving an order for a transcript. If the transcript cannot be completed within 30 days of the receipt of the order for the transcript, the reporter may request an extension of time from the clerk of the court of appeals. The action of the court of appeals granting the request must be entered on the docket, and the parties must be notified. When a transcript is complete, the reporter must file it with the district court clerk, and notify the clerk of the court of appeals that the transcript has been filed. If the court reporter fails to file the transcript within the time allowed, the clerk of the court of appeals must notify the district court judge and take such other steps as may be directed by the court of appeals. The court of appeals is empowered to impose sanctions on a court reporter who fails to meet court-imposed deadlines for the delivery of a transcript, pursuant to its responsibility to see to the delivery of transcripts in a timely fashion.[vii]
Fed. R. App. P. 11(b)(2) provides that when the record is complete for the purposes of an appeal, the clerk of the district court must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Pursuant to Fed. R. App. P. 11(b)(2), the clerk of the district court will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals, unless directed to do so by a party or the circuit clerk. A party must arrange with the clerks in advance for their transportation and receipt, if unusually bulky or heavy exhibits are to be forwarded to the court of appeals.
Fed. R. App. P. 11(c) provides that the clerk of the district court may temporarily retain the record for use by the parties in preparing appellate papers pursuant to the stipulation by the parties, or the district court order. The clerk of the district court must certify to the clerk of the court of appeals that the record on appeal is complete. Furthermore, the appellant must request that the clerk of the district court forward the record to the court of appeals upon receipt of the appellee’s brief, or earlier if the court orders or the parties agree.
Pursuant to Fed. R. App. P. 11(e), by order or local rule, the court of appeals may direct that a certified copy of the docket entries be forwarded in lieu of the entire record, subject to the right of any party to request at any time during the pendency of the appeal that designated parts of the record be transmitted. However, if the record or any part of the record is required in the district court for use there pending an appeal, the district court may order that it be retained, subject to call by the court of appeals. Thereafter, if part or all of the record is ordered retained, the district clerk must send to the court of appeals a copy of the order and the docket entries together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties, pursuant to Fed. R. App. P. 11(e)(3).
Fed. R. App. P. 11(f) provides that unless the court of appeals orders or any party requests their transmittal thereafter, the parties may agree by written stipulation filed in the district court that designated parts of the record are to be retained in the district court. Fed. R. App. P. 11(g) authorizes transmittal of part of the record needed for a determination by the court of appeals on a preliminary matter. Fed. R. App. P. 12(c) provides that the clerk of the court of appeals must file the record or certificate and immediately give notice to all parties of the date on which it was filed, after the clerk of the district court transmits to the court of appeals the record, a partial record, or a certificate that the record is being temporarily retained in the district court, and after the clerk of the court of appeals has received the same
[i] Hensley v. Young, 273 Ga. App. 687, 615 S.E.2d 771 (2005); Campos-Orrego v. Rivera, 175 F.3d 89 (1st Cir. 1999).
[ii] Hill Aircraft & Leasing Corp. v. Planes, Inc., 169 Ga. App. 161, 312 S.E.2d 119 (1983).
[iii] St. Paul Ins. Co. v. Rahn, 586 S.W.2d 701 (Tex. Civ. App. Corpus Christi 1979).
[iv] Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986);
[v] Hale v. Leisure, 100 N.C. App. 163, 394 S.E.2d 665 (1990).
[vi] Scott v. Bodor, Inc., 550 N.E.2d 1326 (Ind. Ct. App. 3d Dist. 1990).
[vii]Matter of Holloway, 884 F.2d 476 (9th Cir. 1989); Matter of Bjella, 806 F.2d 211 (10th Cir. 1986).