Obsolete Date: 3/1/2003
(a) Time for Transmission; Duty of Appellant. The clerk of the trial court shall transmit the exhibits necessary for the determination of the appeal and the record on appeal, excluding the transcript, to the supreme court not less than 25 nor more than 30 days after the filing of the notice of appeal unless otherwise directed by the supreme court or a party or reporter pursuant to subdivision (c). After filing the notice of appeal the appellant shall take any action necessary to expedite the assembly and transmission of the record. If more than one appeal is taken, a single record must be transmitted within the period above stated.
(b) Method of Transmitting the Record. The clerk of the trial court shall number the documents comprising the record and shall transmit with the record a list of the documents correspondingly numbered and identified with reasonable definiteness. Documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted by the clerk unless he is directed to do so by a party or by the clerk of the supreme court. A party shall make advance arrangements with the clerk for the transportation and receipt of exhibits of unusual bulk or weight.
Transmission of the record is effected when the clerk of the trial court mails or otherwise forwards the record to the clerk of the supreme court. The clerk of the trial court shall indicate, by endorsement on the face of the record or otherwise, the date upon which it is transmitted to the supreme court.
(c) Temporary Retention of Record in Trial Court for Use in Preparing Briefs and Transcript. A party or reporter may retain the record in the trial court by sending written request to the clerk of the trial court within the earliest time stated in subdivision (a) for transmission of the record. Copies of the request must be sent to all counsel of record and to the clerk of the supreme court. If the record is retained by a party under this subdivision, the appellant, upon receipt of the brief of the appellee, shall request the clerk of the trial court to transmit the record, unless transmission of the record at an earlier time is agreed upon by the parties or directed by the supreme court. If the record is retained by the reporter under this subdivision, the reporter, upon the filing of the transcript, shall request the clerk of the trial court to transmit the record, unless transmission of the record at an earlier time is directed by the supreme court.
(d) Retention of the Record in the Trial Court by Order of Court. The supreme court may provide by rule or order that a certified copy of the docket entries shall be transmitted in lieu of the entire record, subject to the right of any party to request at any time during the pendency of the appeal that designated parts of the record be transmitted.
If the record or any part thereof is required in the trial court for use there pending the appeal, the trial court may make an order to that effect, and the clerk of the trial court shall retain the record or parts thereof subject to the request of the supreme court, and shall transmit a copy of the order and of the docket entries together with those parts of the record the trial court allows and copies of those parts the parties designate.
(e) Stipulation of Parties That Parts of the Record Be Retained in the Trial Court. The parties may agree by written stipulation filed in the trial court that designated parts of the record shall be retained in the trial court unless thereafter the supreme court shall order or any party shall request their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes.
(f) Record for Preliminary Hearing in the Supreme Court. If before the record is transmitted a party desires to make in the supreme court a motion for dismissal, for release, for a stay pending appeal, for additional security on the bond on appeal or on a supersedeas bond, or for any intermediate order, the clerk of the trial court at the request of any party shall transmit to the supreme court those parts of the original record any party designates.
(g) Filing of the Record. Upon receipt of the record or of parts of the record authorized to be filed under the provisions of subdivision (d) by the clerk of the supreme court following timely transmittal, and after the appeal has been docketed, the clerk shall file the record. The clerk shall give notice immediately to all parties of the date on which the record is filed.
(h) Dismissal for Failure of Appellant to Cause Timely Transmission. If the appellant fails to cause timely transmission of the record, any appellee may file a motion in the supreme court to dismiss the appeal. The motion must be supported by a certificate of the clerk of the trial court showing the date and substance of the judgment or order from which the appeal was taken, the date on which the notice of appeal was filed, the expiration date of any order or request extending the time for transmitting the record, and by proof of service. The appellant may respond within 14 days after service on him.
The duty to forward the record to the supreme court is imposed upon the clerk of district court. However, the appellant's counsel has the primary responsibility for assuring timely forwarding of the record.
Rule 11 separates the responsibilities of the clerk of district court and the person preparing the transcript. The clerk of district court has the duty of forwarding the record, excluding the transcript, to the clerk of the supreme court. The person preparing the transcript is responsible for filing the transcript under Rule 10(c) .
Under subdivision (a) the record is forwarded to the supreme court 25-30 days after the notice of appeal is filed. In an expedited appeal, the record is promptly forwarded to the supreme court.
Subdivisions (a) - (c) were amended October 1, 2014, to conform the rule to electronic filing.
It should be noted that for purposes of these rules, the transcript continues to be a part of the record, but is handled differently than the remainder of the record.
Rule 11 was amended, effective March 1, 2003, in response to the December 1, 1998, amendment to Fed.R.App.P. 11. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
Rule 11 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."
SOURCES: Joint Procedure Committee Minutes of September 26, 2013, pages 20-21; April 26-27, 2001, page 9; May 25-26, 1978, pages 8-9; March 16-17, 1978, pages 2, 13-15; October 27-28, 1977, pages 3-6, 8-9; September 15-16, 1977, pages 13, 14-16; June 2-3, 1977, page 4. Fed.R.App.P. 11.
SUPERSEDED: N.D.C.C. § § 28-27-06, 28-27-08 and 29-28-18.
CROSS REFERENCE: N.D.R.App.P. 10 (The Record on Appeal).