Some New 9th Circuit Court of Appeals Rules

January 25, 2013

Dear constituency list members of the Insolvency Law Committee, the following is a summary of new procedures recently adopted by the U.S. Court of Appeals for the Ninth Circuit:

Electronic Submission of Excerpts: Encouraged as of January 1, 2013 and required as of March 1, 2013. 

While paper copies are still required, parties are now strongly encouraged to submit electronically via Appellate ECF their (i) Excerpts of Record, (ii) Supplemental Excerpts, and/or (iii) Further Excerpts on the same day they electronically submit their brief, unless the Excerpts contain sealed materials. The electronic submission of all non-sealed Excerpts will become mandatory on March 1, 2013 for all parties registered for Appellate ECF.

After electronic submission, the procedure will mirror the current procedure for briefs. After the Court reviews the electronically-submitted Excerpts, the Court will direct parties to file 4 paper copies of the Excerpts with the Court. Parties shall serve a paper copy on any party not registered for Appellate ECF on the same day that the Excerpts are submitted electronically.

If the Excerpts contain sealed materials, parties are instructed NOT to electronically submit the Excerpts.

Technical Requirements: While the Court strongly prefers Excerpts to be searchable PDFs produced using OCR (optical character recognition) technology whenever this can be accomplished without distorting the documents, this is not yet a requirement for the Excerpts.

Reference: Ninth Circuit Rules 13-2, 17-1, 22-6, 30-1, 32-4, 25-5(b)(9), 27-13.

New Procedures to Request Initial Extensions of Time to File Briefs

Beginning January 1, 2013, the Court will begin to phase out telephonic requests for initial 14-day extensions of time to file briefs. Instead, the Court will allow parties registered for Appellate ECF to request extensions via the Appellate ECF system. Parties not registered for Appellate ECF may request extensions via Form 13. Rather than an initial telephonic 14-day extension, any party may now use the process described below to request an initial extension from the original due date of a brief.

What’s Covered & What’s Not?  This streamlined process applies to due dates for opening, answering, reply, and cross-appeal briefs except where a Notice of Oral Argument has issued or the Court has otherwise directed. It does not apply to any other deadlines, including deadlines for petitions for rehearing, amicus briefs, and supplemental briefs ordered by the Court; to any brief in Preliminary Injunction Appeals (Ninth Circuit Rule 3-3), Incarcerated Recalcitrant Witness Appeals (28 U.S.C. § 1826) (Ninth Circuit Rule 3-5), or Class Action Fairness Act Appeals (28 U.S.C.§ 1453(c)).

How Does It Work? If a party has not yet asked for any extension of time to file the brief, that party may request one extension of up to 30 days from the brief’s existing due date. ECF filers should submit their request via the Appellate ECF system using the ‘File a Streamlined Request to Extend Time to File Brief’ event on or before their brief’s existing due date. No form or written motion is required.

Paper filers should complete Form 13, and mail it to the Court on or before their brief’s existing due date.

Requests made pursuant to this procedure will be routinely approved and the Clerk will notify all parties of the new schedule as soon as practicable after receipt of the request. If a party is not eligible for an extension of time under this procedure, the Clerk will let that party know what to do next.

Once a party has received a streamlined extension of time, any request for more time must be made in writing pursuant to Ninth Circuit Rule 31-2.2 (b). The parties are informed that a 30-day extension of time to file a brief will not impact the calendaring of a case.

Thank you for your continued support of the Committee.
Best regards,

Insolvency Law Committee
The Insolvency Law Committee of the Business Law Section of the California State Bar provides a forum for interested bankruptcy practitioners to act for the benefit of all lawyers in the areas of legislation, education and promoting efficiency of practice. For more information about the Business Law Standing Committees, please see the standing committees web page.
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