Deferred Joint Appendix 2CC (NW)

To Defer or Not to Defer:  

When to consider filing a Deferred Appendix in the Second Circuit,
and what it entails

When perfecting an appeal in the Second Circuit Court of Appeals (as in most Federal Circuit Courts of Appeals), appellants are responsible for filing an appendix, which includes bearing the costs for preparation. 

The Court encourages parties to agree to the contents of the appendix, thereby creating a joint appendix from which to cite.  If the parties are unable to reach an agreement, the appellant must serve on the appellee a designation of the parts of the record that the appellant intends to include in the appendix within 14 days after the record is filed.  The appellee in turn has 14 days to designate the portions of the record it wishes to include.

Sometimes there remains a disagreement between the parties as to what should be included. When those disputes involve a substantial number of documents, and, therefore, a substantial cost, there is one thing the parties may be able to agree on: filing a deferred appendix.  This will also be useful if they are unable to determine what documents to include in the appendix until their briefs have been written.

According to Local Rule 30.1(c), if the parties stipulate, or if the court on motion directs, the parties may file a deferred appendix as provided in FRAP 30(c).  The deferred appendix is filed after briefing has been completed and is comprised of the documents that have been cited to by the parties within their briefs.  The parties first file “page proof” briefs where they cite directly to the record from the lower court docket. The deferred appendix must be filed within 21 days after the appellee’s brief is served (typically the same deadline as the reply brief). Once filed, the parties have 14 days to file final briefs which replace or supplement the citations to the lower court record with those to the deferred appendix.  The only changes that can be made to the final brief are corrections of typographical errors and replacement or supplementation of the references.

When deciding whether it is cost-effective to use a deferred appendix, the parties must weigh the expense and labor involved in filing the briefs twice – as a page proof brief and as a final brief – with that of the potential savings that a more succinct appendix might provide.

AppealTech’s experienced appellate counsel and consultants can help you decide if a deferred appendix will benefit your appeal.