Rules of Appellate Procedure  Appellate Procedure Rule 9: Assembly of the record; reproduction of exhibits; notice of assembly; and transmission of documents from the lower court

(1)

Upon the filing of a notice of appeal, the clerk of the lower court shall promptly review the file and ensure the accuracy of the docket entries and that all documents are properly numbered in order of filing or identified with reasonable specificity. The clerk shall prepare a list of all exhibits filed in the lower court and ensure that all exhibits are properly numbered and labeled. The clerk shall maintain the file until the final disposition of the appeal, unless otherwise ordered by a judge.

(2)

The lower court or the appellate court or a single justice thereof may order the record to be assembled, and the appellate court or a single justice thereof may order the appeal to be docketed, at any time.

The lower court shall make such orders as it deems necessary for the preservation of exhibits, and shall not transmit any exhibit to the appellate court unless pursuant to an order of the appellate court or a justice thereof. The parties may reproduce exhibits for inclusion in the record appendix insofar as necessary to their appeal, pursuant to Rule 18.

When an appeal has been taken in a case in which material has been impounded, the clerk of the lower court shall provide written notification to the appellate court clerk that material was impounded by the lower court when notice of the assembled record is transmitted. Such notification shall specify the materials or  portions thereof which were impounded below and shall include a copy of the order of impoundment, if any, or a reference to other authority for the impoundment. Unless otherwise ordered by the appellate court, or otherwise provided in the lower court order of impoundment, material impounded in the lower court shall remain impounded in the appellate courts.

(1) In general 

In a civil or criminal case, upon request by the clerk of the lower court, a party shall forthwith perform any act reasonably necessary to enable the clerk to assemble the record.

(2) Civil cases

Notwithstanding any other obligation which these rules may impose, but excepting electronically recorded proceedings governed by Rule 8(b)(1), each appellant in a civil case shall, within 14 days after filing a notice of appeal, deliver to the clerk of the lower court either

(A) a transcript or those portions of the transcript of the lower court proceedings which the appellant deems necessary for determination of the appeal, 

(B) a signed statement certifying that the appellant has ordered such portions, or

(C) a signed statement certifying that the appellant has not ordered and does not intend to order the transcript or any portion thereof.

(3) Denial of motion for post-conviction relief in a criminal case 

Excepting an appellant in a criminal case in which the defendant was convicted of murder in the first degree, and notwithstanding any other obligation these rules may impose, after the direct appeal, each appellant in a criminal case in which the appeal concerns the denial of a motion for post-conviction relief shall, within 14 days after filing a notice of appeal, deliver to the clerk of the lower court an electronically formatted transcript of the lower court proceedings related to the appellant’s underlying conviction or a statement that such a transcript may not be obtained with due diligence, is not relevant, or has been ordered and not yet produced. In lieu of a copy of the transcript, the appellant may file with the clerk of the lower court a certification that a copy of the transcript is available in the appellate court. The certification shall include the appellate court docket number of the case in which the transcript is available. The clerk of the lower court shall transmit the transcript of the lower court proceedings or the certification to the appellate court when notice of the assembled record is transmitted.

(1)

Unless otherwise ordered by the lower court or the appellate court or a single justice thereof pursuant to Rule 9(a)(2), the clerk of the lower court shall complete the assembly of the record and transmit notice of the assembled record to the parties and the clerk of the appellate court either:

(A) within 21 days from the later of

(i) the clerk’s receipt of the transcript of proceedings, if any, in the lower court; or

(ii) the clerk’s receipt of notice from the appellant that no transcript will be ordered; or

(iii) the expiration of the time for filing any other notice of appeal after the filing of a first notice of appeal pursuant to Rule 4(a); or

(B) if the parties notify the clerk of their intent to file an agreed statement as to the record on appeal pursuant to Rule 8(d), within 21 days of the lower court’s approval of the statement.

(2)

The notice of assembly transmitted to the appellate court shall be accompanied by the following: 

(A) a completed appellate court entry statement;

(B) a copy of the notice of assembly issued to the parties;

(C) a copy of the notice(s) of appeal;

(D) a copy of the docket entries; 

(E) the written notification regarding impounded materials as required by Rule 9(c);

(F) a list of all the exhibits; and, 

(G) in criminal cases, any electronically formatted transcript, if a transcript is necessary for the appeal.

(3)

In case of an order to transmit, transmission shall be effected when the clerk of the lower court mails or otherwise forwards a copy of the notice of assembly and other information as required in this rule to the clerk of the appellate court.

(4)

The clerk of the lower court shall indicate, by endorsement on the face of the notice of assembly, the date upon which it is transmitted to the appellate court.

(2019)

Rule 9. The title of Rule 9 was revised from “Assembly and Transmission of the Record: Exhibits” to “Assembly of the Record; Reproduction of Exhibits; Notice of Assembly; and Transmission of Documents from the Lower Court.” The revised title more accurately describes the processes encompassed in the rule.

Rule 9(a) was divided into two paragraphs and the contents substantially revised. Rule 9(a)(1) is concerned with the lower court clerk’s duty of reviewing the file and confirming the accuracy of the docket entries. Archaic language regarding spindling, binding, and tying papers in preparation for the appeal was deleted.

Rule 9(a)(2). The content of the second sentence of prior Rule 9(c)(1) was relocated to Rule 9(a)(2) because Rule 9(a) relates to the authority of the appellate court or a single justice to order a record assembled or appeal docketed. The remainder of prior Rule 9(c)(1) was designated Rule 9(d)(1) in the amended rules, and relates to the appellant’s obligations.

Rule 9(b). The significant revisions to Rule 9(b) simplify the requirements regarding trial court exhibits and clarify the distinction between the record and the appendix. The amendments clarify that exhibits are not transmitted to the appellate court with the notice of assembly from the lower court, but remain in the lower court, and that parties can, and must, reproduce exhibits in their appendices when pertinent to the issues raised on appeal. See Rule 18(a)(1)(A), (D), and (F).

Rule 9(c) is a new subdivision requiring the clerk of the lower court to notify the clerk of the appellate court that information in the record was impounded by the lower court. The language of Rule 9(c) follows the requirements in S.J.C. Rule 1:15, §§ 2(a) and (b). This subdivision was added to ensure that the Rules are consistent with S.J.C. Rule 1:15 and current appellate court practices, and that impounded information is not inadvertently made available. It also clarifies for the lower court clerk that an affirmative notice to the appellate court clerk as to impounded information is required at the time of transmission of the notice of assembly of the record to the appellate court. See S.J.C. Rule 1:15, § 2(a).

Rule 9(d)(3) is a new paragraph. Except in an appeal from a conviction of murder in the first degree, the new paragraph requires the appellant in a criminal case concerning the denial of a motion for post-conviction relief to deliver to the clerk of the lower court a copy, in electronic form, of the transcript of the lower court proceedings related to the appellant’s underlying conviction. Alternatively, in an appropriate case, the appellant may file a statement that the transcript may not be obtained by due diligence, is not relevant, has been ordered and not yet produced, or may file a certification that the transcript is already available in the appellate court, such as from the defendant’s prior direct appeal. When transmitting the notice of assembly to the appellate court, the clerk of the lower court is required to transmit the transcript or certification. This paragraph was added to facilitate consideration of the appeal by the appellate court because the lower court’s assembly of the record on appeal from a motion for post-conviction relief does not include the transcript of the underlying trial, which the appellate court needs to determine the subsequent appeal.

Rule 9(e), prior Rule 9(d), was divided into two paragraphs. Rule 9(e)(1) establishes a timeframe for the lower court clerk to assemble the record, and Rule 9(e)(2) denominates the items that the clerk is to include with the notice of assembly transmitted to the appellate court clerk. Rule 9(e)(1) includes a new provision requiring the clerk of the lower court to complete assembly of the record within 21 days of the last of the clerk’s (1) receipt of the transcript, (2) receipt of notice from the appellant that no transcript will be ordered, (3) the expiration of the time for filing any other notice of appeal after the filing of the first notice of appeal, or (4) approval of an agreed statement of the record. In the common situation where multiple days of transcript have been ordered, the clerk will not assemble the record until all transcript volumes have been received. This amendment is intended to prevent delay in completion of the assembly of the record.

Rule 9(e)(2) identifies the documents that must be transmitted by the lower court clerk to the appellate court with the notice of assembly. The documents include a completed appellate court entry statement, a copy of the notice of assembly sent to the parties, a copy of the notice(s) of appeal, any notice of impounded information, and an exhibit list. The requirement that two “certified” copies of the docket entries be transmitted was reduced to one copy, which need not be certified. Removing the requirement that the lower court docket be certified recognizes that it can be presumed that the docket is authentic because it is transmitted directly from the lower court, facilitates transmission of the notice of assembly and accompanying documents to the appellate court, and is consistent with the requirements in Rule 18 (the copy of the docket included in the appendix need not be certified). Moreover, any incorrect docket entry transmitted to the appellate court can be corrected pursuant to the procedures in Rule 8(e). Removing this requirement eliminates the need for manual certification of the docket which consumes the time and effort of lower court personnel. In criminal cases, the prior requirement that an original and one copy of the transcript be transmitted was revised to a single electronically-formatted transcript. These amendments reflect current practice regarding the information required by the appellate courts from the lower court for entry of an appeal.

Prior Rule 9(e), titled “Record for Preliminary Hearing in the Appellate Court,” was deleted because other rules currently provide processes for parties to obtain the relief that had been provided for in that rule. See Rules 2, 6, and 15.

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(2002)

[To Appellate Rule 9(C)(2)] Rule 9(c)(2) was amended in 2002 to reduce the time period after the filing of a notice of appeal from 40 to ten days in which the appellant in a civil case must deliver to the clerk of the lower court either the transcript or a certification that the appellant has ordered the transcript from the court reporter.

This amendment serves to bring Rule 9(c)(2) in line with the requirement of Rule 8(b)(1) that the appellant must order the transcript within ten days of filing the notice of appeal.

A further change was made in the first sentence of Rule 9(c)(2). Prior to the 2002 amendment, that sentence required the appellant to provide to the clerk of the lower court either (1) a transcript of the proceedings which the appellant deems necessary or (2) a statement that the appellant has ordered such transcript. A third option, (iii), has been added for cases where the appellant is not ordering the transcript (or any portion thereof). The appellant, by certifying that no transcript has been ordered and that the appellant does not intend to order the transcript, will thereby put the appellee on notice that the appellee must, if a transcript is desired, take steps to order the transcript. See Rule 8(b)(1).

(1994)

[To MASS.R.A.P.9(C)(2)] There has been an ambiguity in Mass.R.A.P. 9(c)(2) in those cases in which there has been an electronically recorded proceeding in trial court. Rule 9(c)(2) calls for the appellant, within forty days after filing the notice of appeal, to deliver to the clerk of the trial court either portions of the transcript or a signed statement certifying that the appellant has ordered such portions from the court reporter. Rule 8(b)(3), covering electronically recorded proceedings, has distinct provisions for obtaining a transcript which do not mesh perfectly with Rule 9(c)(2). For instance, as the dissent of Justice O’Connor (with whom Wilkins and Greaney, JJ. joined) explained in Russell v. McOwen-Hanelt, 413 Mass. 106, 114 (1992), the appellant in that case had a minimum of fifty-six days to order transcription of the cassette, so that the forty day notice provision in Rule 9(c)(2) did not fit. Nonetheless, in that case, the majority, relying on Hawkins v. Hawkins, 397 Mass. 401, 406 (1986), read Rule 9(c) to require the appellant in appeals from electronically recorded proceedings “ ‘to deliver either a transcript or a signed statement certifying that the tapes [are] being transcribed, to the clerk or register’s office, [no later than] forty days after [the] appeal was filed.’ ” Russell v. McOwen-Hanelt, at 109.

The Standing Advisory Committee believes that Rule 9(c)(2) should be clarified so that henceforth it does not apply to electronically recorded proceedings. There are special problems when a tape recorder rather than a stenographer has been used to record a trial. For instance, an appellant must order and receive the cassette from the lower court before the designation process can begin and a person or firm must be selected to prepare the transcript. Consequently, the requirements in Rule 8(b)(3) are different from those in Rule 9(c)(2). This amendment resolves the previous ambiguity by creating an exception from the requirements of Rule 9(c)(2) where there has been an electronically recorded proceeding covered by Rule 8(b)(3). This amendment renders inapplicable the contrary holding in Russell v. McOwen-Hanelt, 413 Mass. 106 (1992) and Hawkins v. Hawkins, 397 Mass. 401 (1986).

(1994) 

At several places in this Rule, and in Rule 8, the word “record” or the words “record on appeal” are used. It is critical that litigants realize that there is a profound difference between the “record” and the “appendix”. The record is what the lower clerk assembles and retains “until the final disposition of the appeal, except as the record or any part of it is ordered to be transmitted by the appellate court or a single justice.” Mass.R.A.P. 9(a). The appendix is what the appellant must file in accordance with Mass.R.A.P. 18. A 1993 amendment to Mass.R.A.P. 18, which was made to reflect the language of Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810-812 (1992), emphasizes “the responsibility of the parties to include materials necessary to their appeal, including exhibits, in the appendix.”

It is important to realize that when Mass.R.A.P. 9(b) says that “[n]o exhibit need be reproduced for the record, except by order of an appellate court, a single justice, or the judge of the lower court,” it is talking about “the record” and not “the appendix”. The fact that the rule goes on to say that “[a]ny counsel may reproduce any exhibit in several copies for the convenience of the court,” also does not relieve the parties of their obligation to put copies of exhibits they rely upon in the appendix in accordance with Mass.R.A.P. 18.

(1986) 

This rule [subdivision (b) of Rule 9], inter alia, requires the clerk of the lower court to “transmit any exhibit to the appellate court at the request of any party made at any time after the filing of the record appendix.” It is important to realize, however, that the transmittal of such exhibits does not automatically permit lawyers to refer to them. Rule 18(a) states that “... the court may decline to permit the parties to refer to portions of the record omitted from the appendix, unless leave be granted prior to argument.” See Iverson v. Board of Appeals of Dedham, 14 Mass.App.Ct. 951 (1982).

(1979) 

Subdivision (a) of Rule 9, as made applicable to criminal cases, supersedes the provisions of former G.L. c. 278, § 33C (St.1974, c. 458, § 1) relative to the preparation of the record.

Subdivision (b), relative to exhibits, is amended by the addition of a sentence which restates the substance of the first sentence of former Appeals Court Rule 1:06(3) (1975: 3 Mass.App.Ct. 802) and Supreme Judicial Court Rule 1:06(3) (1975: 366 Mass. 858-59). Subdivision (b) was previously incorporated into criminal appellate procedure by Appeals Court and Supreme Judicial Court Rules 1:06(1) (1975: 3 Mass.App.Ct. 802; 366 Mass. 858), except that “record appendix” in the appellate rule was taken to mean “record” in the context of a criminal appeal. This provision, which states that certain risk-associated exhibits are not to be transmitted to the appellate court absent an order, is applicable in civil as well as criminal cases.

Subdivision (c) is amended by limiting the forty-day time for appellants’ assistance in assembly of the record to civil cases, and by requiring the appellant in a criminal case to forthwith perform any act reasonably necessary to enable the clerk to assemble the record. The provision for delivery to the clerk of the necessary parts of the transcript for inclusion in the record in civil cases is inapplicable to criminal cases since the clerk orders the transcript, makes and distributes the required copies to the parties and transmits the original and a copy to the appellate court, (Rule 8[b][2]). The entire transcript is included unless the parties stipulate otherwise (Id.).

The requirement of subdivision (d) that the clerk of the lower court transmit two copies of the docket entries to the appellate court in a criminal case conforms to procedure under former Appeals Court and Supreme Judicial Court Rules 1:09 (1975: 3 Mass.App.Ct. 802; 366 Mass. 859). Subdivision (d) additionally provides that the original and one copy of the transcript (see Rule 8[b][2]) and a list of all the exhibits (see former Appeals Court and Supreme Judicial Court Rules 1:06[3], supra) shall be transmitted with the record.

(1973) 

Appellate Rule 9, changing federal practice (which requires transmission of the entire record in all cases, see F.R.A.P. 11) responds to the Massachusetts practice of not sending the actual original papers to the appellate court. The rule, however, recognizes that occasionally it may be essential for such papers to be transmitted, and thus requires the clerk to assemble all the original papers in a case, including a transcript if any, and hold them, subject to an order by the appellate court to transmit the record to that court. The appellant must take whatever action is necessary to assure assembly; failure to do so jeopardizes the appeal, see Appellate Rule 10(c).