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Order Promulgating Amendments to Rules of Civil Appellate Procedure

Supreme Court of Minnesota

December 10, 2019

ORDER PROMULGATING AMENDMENTS TO THE RULES OF CIVIL APPELLATE PROCEDURE

          Lorie S. Gildea Chief Justice.

         In an order filed on November 13, 2018, we directed the Advisory Committee for the Rules of Civil Appellate Procedure to review the rules that govern the use and preparation of transcripts in appeals in light of the recommendations made to the Judicial Council by the Court Record Workgroup to clarify the role of court reporters with respect to transcripts for audio or video exhibits. We also noted some inconsistency between the rule that governs transcript preparation for appeals in criminal matters, see Minn. R. Crim. P. 28.02, subd. 9, and the rule that governs transcript preparation for appeals in civil matters, see Minn. R. Civ. App. P. 110.02.

         In a report filed on April 1, 2019, the committee explained that the Rules of Civil Appellate Procedure state, clearly, that court reporters are required to transcribe and certify only testimonial evidence, such as video depositions, but not other digital recordings. The committee reviewed the report filed on February 28, 2019, by the Advisory Committee for the Rules of Criminal Procedure, which proposed amendments to Minn. R. Crim. P. 28.02, subd. 9, to clarify the responsibilities related to transcript preparation for an appeal; but concluded that the amendments recommended by that committee addressed issues that exist primarily in criminal proceedings. Thus, the committee concluded that the existing provisions of Rule 110.02 work well and, therefore, no amendments are needed.

         We opened a public comment period. Only one written comment was received, from the State Court Administrator on behalf of the Judicial Council, which asked that Rule 110.02 be amended to clarify the court reporter's role in preparing transcripts of audio or video exhibits. We also held a public hearing, on September 25, 2019, and received further input from the chair of the Advisory Committee for the Rules of Civil Appellate Procedure.

         We have carefully considered the Advisory Committee's conclusion that Rule 110 of the Rules of Civil Appellate Procedure works well and needs no amendments. We appreciate the committee's review of the extensive work done on this topic by the Court Record Workgroup, and its consideration of the recommendations made by the Advisory Committee on the Rules of Criminal Procedure. We have concluded, however, that amendments to Rule 110.02 regarding the court reporter's role with respect to transcript requests in appeals in which audio or video evidence is part of the record on appeal will provide clarity in identifying the evidence that is part of the record on appeal. See Minn. R. Civ. App. P. 110.01 (defining the record on appeal). Further, amendments to Rule 110.02 will promote consistency between the rules that govern transcript preparation for appeals, whether in criminal or civil cases, which will aid court reporters in fulfilling transcript requests. See Minn. R. Crim. P. 28.01, subd. 2 (noting that the Rules of Civil Appellate Procedure govern appellate procedure in criminal proceedings to the extent not inconsistent with the criminal rules). Clarity is also important given that a transcript of digital evidence may not be substantive evidence, but instead may serve an illustrative purpose. See State v. Stewart, 643 N.W.2d 281, 293 (Minn. 2002) (noting that illustrative exhibits are not original evidence).

         Thus, the amendments we adopt here clarify that a court reporter can, but is not required to, prepare a transcript of audio or video recordings that are part of the record on appeal, and is not required to certify the correctness of such a transcript. The court reporter is, however, responsible for filing that transcript with the district court, whether it is prepared by the court reporter or by the party.

         Based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that the attached amendments to the Rules of Civil Appellate Procedure be, and the same are, prescribed and promulgated to be effective as of March 1, 2020. The rules as amended will be effective for appeals filed on or after the effective date.

         AMENDMENTS TO THE RULES OF CIVIL APPELLATE PROCEDURE

         [Note: in the following amendments, deletions are indicated by a line drawn through the words, and additions are indicated by a line drawn under the words.]

         Rule 110. The Record on Appeal

         * * *

         110.02. The Transcript of Proceedings; Duty of Appellant to Order; Notice to Respondent if Partial Transcript is Ordered; Duty of Reporter; Form of Transcript

         Subdivision 1. Duty to Order Transcript. Within 10 days after filing the notice of appeal, the appellant shall:

         (a) pursuant to subdivision 2 of this rule, order from the reporter a transcript of those parts of the proceedings not already part of the record which are ...


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