Rules Committee Proposes to Clarify Rule on Clarification of Record

By Chris Mincher

In the past 10 years, Maryland’s appellate courts have labored to get the message to practitioners that Md. Rule 8-414 (“[o]n motion or on its own initiative, the appellate court may order that an error or omission in the record be corrected”) is not a way for a party to get stuff into the appellate record that wasn’t presented to the lower court. This conclusion, firmly articulated in Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 10 n. 9 (2005), has been reiterated in a handful of opinions since — including Li v. Lee, 210 Md. App. 73, 94-96 (2013), which explained that even evidence created after the lower-court proceedings are over can’t be added to the record via Rule 8-414. Basically, if it wasn’t in front of the lower court, it’s not an 8-414 error or omission in the record, because it’s not supposed to be in the record.

As stated in the 187th Report of the Standing Committee on Rules of Practice and Procedure, “The Rule, read as a whole, makes clear that a correction of the record may include the correction of an actual error in the record, the deletion of something that was included in the record but should not have been, or supplementation of the record by adding something that should have been included but, for some reason, was not.” Nonetheless, uncertainty seems to have persisted as to whether “correcting an ‘error or omission’ could include adding to the record material that was not, in fact, presented to the lower court but has some potential or actual relevance to the appeal[.]” The Committee has therefore proposed amendments to Rule 8-414 to unequivocally state that an appellate court ordinarily “may not order an addition to the record of new facts, documents, information, or evidence that had not been submitted to the lower court.”

But the Committee didn’t stop there. In searching for the best way to handle record corrections while on appeal, the Committee found its way to Fed. R. App. P. 10(e), which frowns upon a party’s unilateral attempt to initiate a change. Instead, FRAP 10(e) permits correction of the record by (in addition to the appellate court’s general exercise of its discretion) stipulation of the parties or — if the parties can’t agree on whether or how the record should be corrected — having the lower court fix the mistake.

The Rules Committee liked this scheme, and has also recommended amending Rule 8-414 to incorporate it. First, like FRAP 10(e), the rule would specify that a party in an appeal can only seek to correct material errors or omissions in the record. The rule would continue to require a party seeking a record correction to file a motion to get it. (Likewise, an affidavit still has to support the motion if it is based on facts not in the record or papers on file, or — in a slight expansion of (b)(1) — otherwise not under the custody or jurisdiction of the appellate court.) Following the FRAP model, a stipulation of the parties about the alleged error or omission can prompt the appellate court to make the change.

If there’s a disagreement between the parties about the alleged error or omission, however, it is to be set forth in the motion — unlike FRAP 10(e), which directs that such disagreements be automatically sent back to the lower court for resolution. Under the modified Rule 8-414, that remand option is in the discretion of the appellate court: If it can’t figure the dispute out, it can direct the lower court (on a deadline, if necessary) to determine whether the record has an error and, if so, make any appropriate changes. All other questions about the form and content of the record remain with the appellate court. In sum, Rule 8-414 would, as with the federal rule, establish a preference that record errors be resolved by stipulation or by the lower court, but still give the appellate court a lot of flexibility in figuring out how to handle the problem.