Look around your office. There’s paper everywhere, right? Your office is a fire hazard.
How can you fix that problem? You should take two steps: (1) throw all that stuff away; and (2) don’t fill the resulting void with more paper.
The North Carolina Court of Appeals is embarking on a little housekeeping itself. Let’s check in on how that’s going.
Step 1: Throw all that stuff away
Yesterday, you may have received an automated email from the court titled “Exhibit Destruction Notice” asking you to come retrieve “all exhibits, including evidence, transcripts, and visual aids” filed with the Court of Appeals in any appeal that is over three years old. The notice cites Appellate Rule 9(d)(4), which does indeed require parties to retrieve “[a]ll models, diagrams, and exhibits of material placed in the custody of the clerk” within 90 days after the mandate issues.
This is the first time the Clerk’s office has sent such notices. But they are overdue. What, did you think that banker’s box of Rule 9(d) Documentary Exhibits you filed in 2015 just disappeared? It didn’t. It is in the Clerk’s office, taking up space.
So, what exactly will be destroyed? Paper deposition and old trial transcripts, record supplements, Rule 9(d) documentary exhibits, Rule 9(d) demonstrative and tangible exhibits, and the like will be shredded or otherwise disposed of. Rumor has it that a bag of dog food that was once a trial exhibit has been sitting in the basement of the Court of Appeals for a decade. So if Sparkles is feeling hangry, better get on down to Morgan Street before your 15 days are up.
To be clear, electronic copies of documents—like the printed records available on the e-filing website and electronically filed transcripts—are not going away. They will remain accessible online like always.
I’m not sure how the coming destruction of these materials intersects with public-records laws, but I welcome experts in that area to chime in below.
Step 2: Don’t fill the resulting void with more paper
Of course, one of the reasons the Court of Appeals has all this paper in the first place is that it does not accept electronic filings of most components of the record on appeal. And that’s not going to change quite yet. For right now, you still have to file—in paper form—the printed record on appeal and any Rule 9(d) documentary exhibits. Those are often the bulkiest components of the record on appeal.
But, effective immediately, you may now e-file the following components of the record on appeal:
- Rule 9(b)(5) Supplement to the Printed Record on Appeal. This is the record supplement that, for example, an appellee might file if the appellant raises an issue in its opening brief that requires review of documents that aren’t already in the settled record on appeal—a Rule 9(b)(5)(a) supplement that may be filed as of right. A party seeking leave to file a Rule 9(b)(5)(b) supplement can also e-file, but should be sure to e-file the proposed supplement as a separate pdf attachment to the motion.
- Rule 11(c) Supplement to the Printed Record on Appeal. This is the supplement that includes documents that one or more, but fewer than all, parties wishes to be included in the printed record on appeal in a civil or criminal case.
- Rule 18(d)(3) Supplement to the Printed Record on Appeal. This is the supplement that includes documents that one or more, but fewer than all, parties wishes to be included in the printed record on appeal in an administrative case.
- Electronic Transcripts. This is old news. The Court of Appeals has allowed court reporters to e-file transcripts since 2009.
In the olden days (yesterday), you filed paper copies of any Rule 11(c) and Rule 18(d)(3) supplements with your printed record when you mailed or hand-delivered it to the Court of Appeals for filing.
No more! Now, you should hold on to that supplement, wait for the record to be docketed and a case number to be assigned to your appeal, and then e-file the Rule 11(c) or Rule 18(d)(3) supplement under that number. Does that process sound familiar? It should. It is the same process that court reporters use when e-filing transcripts in an appeal.
You should still serve a copy of any Rule 11(c) or Rule 18(d)(3) supplement when you file, however. That is, you should not wait until you e-file it to serve it. Again, that is just like the process you are already using for transcripts.
Just to reiterate, though: Rule 9(d) documentary exhibits and printed records must still be filed in paper or other tangible form.
But maybe not for long. Rumor has it that parties will be able to e-file the entire record in a few months—just like in the Supreme Court. I can’t wait. Neither can the fire marshal.