Handling an appeal? Worried about what to designate for the record? Judge Conrad Rushing of California's sixth appellate district has some guidance for you. His decision in Silvaco Data Systems, Inc. v. Intel Corporation has important advice for any appellate advocate. The case is important for its holding that the use of software object code is not a misappropriation of trade secrets contained in the source code, which the user of the software never possessed. It is also noteworthy for its relentless attack on and dissection of the flawed logic of the appellant, Silvaco Data Systems. But for purposes of this post it is Judge Rushing's comments about the “record” on appeal that captured our attention. His footnote 2 is both a primer on appellate efficiency and a frustrated declaration of war against indiscriminate record designation. Here is a summary, but his footnote should be read for full effect:
Avoid the “Wretched Excess”
“Seldom have so many trees died for so little. We see three causes for this wretched excess.” So begins Judge Rushing's lesson, inspired by an 8,000 page record in a case decided “…largely on the pleadings.” He warns against the three causes of the excess:
Do Not Include Copies of Legal Authorities Lodged With the Trial Court
The first problem was the “… inclusion of hundreds of pages of printouts of legal authorities retrieved from online sources.” Judge Rushing acknowledged that trial court rules require “lodging” of “some such materials” but reminded the litigants that the appellate court rules do not, stating, “[T]his court can more easily retrieve authorities through its own resources than it can find them – or anything else – in an 8000-page appendix.”
Beware the Index Black Hole
The appendix of the record in Silvaco consisted of 27 volumes. Each volume included a 103 page index of the entire record. Beyond that overkill, Judge Rushing was frustrated by the overly detailed contents of the index: each and every distinct filing in the trial court was indexed as well as each and every exhibit and attachment to every filing. This, the judge stated, not only is not required, but defeated altogether the purpose of having an index.
Avoid Multiple Copies of Trial Court Filings
The final death blow to the once beautiful forest was the designation of multiple copies of the same documents. Judge Rushing explained the problem as “…the duplicative inclusion of multiple copies of documents that were filed repeatedly in the superior court. We assume these duplicate filing were intended as a convenience to the trial court, but when they inflate a record to the present proportions they are hardly a convenience to us.” Anyone who has handled an appeal knows the problem of deciding whether or not to include in full each relevant filing, even if those filings include copies of papers already filed, and already designated as part of the record. Thus, this third point is problematic.
Judge Rushing's frustration is apparent in this decision - directed at lawyers unwilling to take the time to think about what the record should contain. His advice includes a citation to one of California's Maxims of Jurisprudence: “… as the sheer size of the record increases, it become (sic) increasingly important for appellate counsel to take an active role in ensuring that the record is no larger, and no less easily navigated, than accuracy and necessity dictate. The present case appears to be one of those rare instances when, contrary to the maxim, superfluity does vitiate. (See Civ. Code, § 3537.)”
Judge Rushing's decision on the merits is also worth studying for its critical analysis of the logic and reasoning of the appellants arguments, and, ultimately, as a cautionary tale of the ever-weakening tensile strength of the slender thread that binds advocacy to reason.