How To Handle New Evidence During the Pendency of an Appeal

September 20, 2016Articles The Legal Intelligencer

Benjamin H. McCoy authored The Legal Intelligencer article,"How To Handle New Evidence During the Pendency of an Appeal."

With most corporations today ­facing large-exposure lawsuits in developing areas of the law, in-house counsel are forced to become increasingly well versed in both trial and appellate litigation.

Although the two arenas overlap to some degree, the difference between appellate and trial practice can be stark. One of the most obvious differences is discovery (i.e., ­evidence development), which ­predominates the trial level but is absent from appellate practice. This dichotomy stems from the general rule that appellate review is limited to the record that was ­before the trial court.

It goes without saying that discovery in large-scale cases is a monumental task, and sometimes—whether intentionally or not—relevant evidence does not come to light until after an appeal has commenced. Given the substantial amount of resources expended on discovery, the specter of being subjected to a judgment based on a less-than-complete factual record can be ­especially frustrating.

Perhaps unsurprisingly, there are a ­multitude of roadblocks for newly discovered ­evidence, and that number only grows larger once an appeal has commenced. This holds true even assuming that the evidence is material; which we will assume is the case in this article. Nevertheless, a ­little-used federal rule offers a vehicle through which new evidence can be ­considered despite the pendency of an appeal.

Advancing new evidence through Federal Rule of Civil Procedure 62.1 and Federal Rule of Appellate Procedure 12.1.

Absent an appeal, new evidence usually triggers the filing of a Rule 60(b) "motion for relief from a judgment or order" in the district court. However, the district court loses jurisdiction over a case once an appeal is filed. At the same time, an appellate court is limited to reviewing the record that was before the trial court. In short, the district court is without jurisdiction and the ­appellate court is barred from considering new evidence.

To remedy this issue, Rule 62.1 was ­enacted in 2009. This rule permits a litigant to seek an "indicative ruling" from the ­district court as to whether it would grant a motion over which it no longer has jurisdiction. In other words, the district court can consider a motion based on new ­evidence and advise if it would rule favorably if it actually had jurisdiction.

Specifically, when faced with a Rule 62.1 motion, a district court has three options: defer consideration of the motion until after the appellate court returns the mandate; deny the motion; or "state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." Rule 62.1 has been most often used in tandem with Rule 60(b) motions grounded in either fraud or newly ­discovered evidence, as in Retirement Board of the Policemen's Annuity & Beneficiary Fund of City of Chicago v. Bank of New York Mellon, 297 F.R.D. 218, 221 (S.D.N.Y. 2013) (noting that the drafting history of Rule 62.1 indicated it was originally meant to be an addition to Rule 60, but was later broadened).

If the district court indicates that it will either grant the motion or that the ­motion raises a substantial issue, the movant must then promptly notify the circuit court clerk under FRAP 12.1(a). Upon notice, the appellate court will usually remand to the district court for further proceedings. In contrast, if the district court wishes to deny the motion, then it can do so outright without the need for permission or remand from the appellate court.

To clarify a point of confusion, FRAP 10(e), which allows amendment and/or supplementation of the appellate record, does not provide an avenue for the ­consideration of new evidence. Rather, FRAP 10(e) is limited to corrections of inadvertent omissions or mistakes in the record, as in In re Application of Adan, 437 F.3d 381, 389 (3d Cir. 2006) ("Rule 10(e)(2) allows amendment of the record on appeal only to correct inadvertent omissions, not to introduce new evidence"). While some appellate courts have indicated that they have an inherent power to consider new evidence, examples of courts actually exercising that power are few and far between, as in Shahar v. Bowers, 120 F.3d 211, 212–213 (11th Cir. 1997) ("although we have inherent inequitable power to ­supplement the record with information not reviewed by the district court, such authority is rarely used"). Thus, for ­evidence that is truly "new," the ­appropriate ­procedure is set forth in Rule 62.1 and FRAP 12.1.

This does not mean, however, that ­appellate review of new evidence is foreclosed. To the contrary, a Rule 62.1 motion constitutes a final order that can also be appealed. As a result, a party that truly believes new evidence would sway the result can still have that evidence considered through a separate appeal. Ideally, the district court's ruling will be made in time for the Rule 62.1 appeal to be consolidated with the initial appeal—a measure that can preserve costs, as in United States ex rel Lockey v. City of Dallas, 576 F. App'x 431, 434 (5th Cir. 2014) (consolidating appeal of Rule 62.1 motion and reviewing under an abuse of discretion).

When to use Rule 62.1 and FRAP 12.1.

In order to bring a Rule 62.1 motion, the underlying motion itself must be timely. For newly discovered evidence, this means that the motion must be filed "within a reasonable time" and "no more than a year after the entry of the judgment." To be safe, a Rule 62.1 motion should be filed as soon as possible. But if the new evidence is ­discovered late in the appellate process, the most cost-effective strategy might be to seek a ruling under Rule 62.1(a)(i), which will defer consideration until the ­disposition of the appeal.

In practice, whether to pursue a Rule 62.1 motion is usually tethered to the strength of the new evidence. For in-house counsel, considerations of cost and finality also come into play. Indeed, the grant of a Rule 62.1 motion and subsequent reopening of a judgment may lead to further discovery in the district court and even render meaningless the appellate costs incurred to date, as in United States v. $1,026,781.61 in Funds from Florida Capitol Bank, No. 09-04381, (C.D. Cal. Apr. 16, 2013) (granting Rule 62.1 motion and noting that it would ­permit further discovery focused on new evidence). In turn, this can lead to substantial uncertainty as to the time and resources that will be spent on a given case going forward. Ultimately, as with many issues, a ­comprehensive risk-reward analysis will lead to the strategy that is best for the ­corporation as a whole. 

Reprinted with permission from the September 20 issue of The Legal Intelligencer. (c) 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.