Saturday, August 05, 2006

V. THESE ARE NOT CORRECTIONS

The objectors' motion to strike the settlement parties' "corrected" briefs is viewable at http:/muchnick.net/StrikePart1.pdf, http://muchnick.net/StrikePart2.pdf, and http://muchnick.net/StrikeMisc.pdf. It shortly will be viewable in a single file, at http://muchnick.net/MotionToStrike.pdf.

Below is the fifth in a series of excerpts from that document.



V. THESE ARE NOT CORRECTIONS

This situation results from a flagrant violation of the Rules. The facts were outside the record. Fed. R. App. P. 10. Factual assertion without record references has been the basis for sanctions. Laitram Corp. v. Cambridge Wire Cloth Co., 919 F.2d 1579, 1583 (Fed. Cir. 1990)(sanctions for, inter alia, "statements of fact with no record reference; statements of fact for which there is no record; reliance on attorney argument and counsel's unsworn fact statements as 'evidence'"); see also, Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999). The Rule provides for modification of the record in explicit ways, and requires all other questions regarding the content of the record to be present to the court of appeals. Fed. R. App. P. 10(e)(3).

These are revised briefs, not corrections. Appellants' Reply does not match these "corrected" briefs. Substantial parts will be meaningless when read against the "corrected" briefs. (Declaration, Para. 3, Exhibit A.) In fairness to the Court, as well as to appellants, if the new briefs by appellees stand, the appellants should file a new reply. This occasions both extra work, and delay.

Corrections are for incorrect citations to the record or legal authority* (* Plaintiffs-Appellees present a "release" argument based on a citation to Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997). (Brief for Plaintiffs-Appellees, p. 28; Corrected Brief for Plaintiffs-Appellees, p. 28.) There is nothing in that opinion remotely like the citation, and Appellants pointed that out in their Reply. (Combined Reply For Objectors-Appellants, p. 24.) If truly interested in correcting their brief the Plaintiffs could have addressed that citation.), or the correction of a failure to observe the rules regarding required content or form. The Rules contain a strong indication that substantive corrections are not allowed without permission of the court. In the Rule dealing with the situation where briefs are filed before the appendix is prepared, the parties are allowed to submit new copies of their briefs citing to the appendix. Fed. R. App. P. 30(c)(2). The Rule states: "Except for the correction of typographical errors, no other changes may be made to the brief." Id. The Supreme Court is even more emphatic: "No other change may be made in the brief as initially served and filed, except that typographical errors may be corrected." Supreme Court Rule 26(4)(b).

It is the common practice in the courts of appeal that the filing of a corrected brief is done by order of the court. See, e.g., Cobell v. Norton, 2006 U.S. App. LEXIS 9322, *1-*2 (D.C. Cir. 2006); Tyler v. Missouri Highways and Trans. Comm., 160 Fed. Appx. 547, 2005 U.S. App. LEXIS 28553, **2 (8th Cir. 2005); Williams-Lindsey v. National Car Rental System, Inc., 2005 App. LEXIS 21697, *1 (7th Cir. 2005); Lyons v. Red Roof Inns, Inc., 130 Fed. Appx. 953, 957, 2005 U.S. Appx. 9272 (10th Cir. 2005); Ray v. Koester, 85 Fed. Appx. 983, 984, 2004 U.S. App. LEXIS 839, **2 (5th Cir. 2004); Julien v. County of Alameda, 46 Fed. Appx. 528, 529, 2002 U.S. App. LEXIS 20172, **3 (9th Cir. 2002); United States v. Arora, 43 Fed. Appx. 598, 2002 U.S. App. LEXIS 16138, **1 (4th Cir. 2002); Tan-Gatue v. Office of Pers. Mgmt., 44 Fed. Appx. 484, 2002 U.S. App. LEXIS 17918 (Fed. Cir. 2002).


[Next blog excerpt: APPELLANTS SHOULD BE PERMITTED TO RELY ON APPELLEES' ADMISSIONS]

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