10th Cir. R. 10.4: Content of record

(A) Essential items. Counsel must designate a record on appeal or prepare an appendix that is sufficient for considering and deciding the appellate issues. Only essential parts of the district court record should be designated for the record on appeal.

(B) Inadequate record. The court need not remedy any failure by counsel to designate an adequate record or to prepare an adequate appendix. When the party asserting an issue fails to provide a record or appendix sufficient for considering that issue, the court may decline to consider it.

(C) Required contents. Every record on appeal or appendix filed must include:

(1) the district court’s docket entries;

(2) the last amended complaint and answer, or the indictment or information and any superseding indictment or information;

(3) the final pretrial order;

(4) pertinent written reports and recommendations, findings and conclusions, opinions, or orders of a district judge, bankruptcy judge, or magistrate judge, or, if the findings and conclusions were made orally, a copy of the transcript pages recording those findings and conclusions;

(5) all jury instructions when an instruction is at issue on appeal, as well as proposed instructions that were refused; when a finding or conclusion is an issue on appeal, proposed findings and conclusions that were refused;

(6) the decision or order from which the appeal is taken;

(7) the judgment, when one has been entered;

(8) the notice of appeal; and

(9) in a social security appeal, the entire administrative record.

(D) Additional items.

(1) Evidence; instructions. If an appeal is based on a challenge to the admission or exclusion of evidence, the giving or failure to give a jury instruction, or any other ruling or order, a copy of the pages of the reporter’s transcript must be included in the record or appendix to show where the evidence, offer of proof, instruction, ruling or order, and any necessary objection are recorded.

(2) Documents. When the appeal is from an order disposing of a motion or other pleading, the motion, relevant portions of affidavits, depositions and other supporting documents (including any supporting briefs, memoranda, and points of authority) filed in connection with that motion or pleading, and any responses and replies filed in connection with that motion or pleading, must be included in the record or appendix.

(3) Presentence report. The presentence investigation report must be included if the appeal is from a sentence imposed under 18 U.S.C. § 3742. See Rule 11.3(C).

(4) Other. Other items, such as trial exhibits and transcript excerpts, must be included when they are relevant to an issue raised on appeal and are referred to in the brief.

(5) Trial exhibits. Copies of relevant trial exhibits released by the district court before appeal but referred to in a party’s brief may be presented in an appendix where one is filed, or may be submitted via motion as a supplement to the record on appeal in cases where the record is created via designation.

(E) Exclusions. The following items may not be included in the record on appeal or appendix unless they are relevant to the issues on appeal:

• appearances;

• bills of costs;

• briefs, memoranda, and points of authority, except as specified in Rule 10.4(D)(2);

• certificates of service;

• depositions, interrogatories, and other discovery matters, unless used as evidence;

• lists of witnesses or exhibits;

• notices and calendars;

• procedural motions or orders;

• returns and acceptances of service;

• subpoenas;

• summonses;

• setting orders;

• unopposed motions granted by the trial court;

• nonfinal pretrial reports or orders; and

• suggestions for voir dire.