Seventh Circuit Benchslap
Two weeks ago the Seventh Circuit issued a benchslap to a lawyer who modified her brief after being asked to resubmit her brief with a redacted appendix. The facts of the case are not pretty. On March 30, the attorney filed her brief (after 5 time extensions, one of which she requested when the brief was a day late). Opposing counsel realized that the appendix to her brief contained material that the court had ordered redacted.
On April 6, the granted the attorney’s motion to file a corrected appendix. The ordered directed her to “‘file by April 11, 2018, a new electronic version of [the] brief that includes the fully-redacted appendix.'” She complied with that order, but also made “substantial changes in the body of the brief, altering propositions of both fact and law.” Opposing counsel, once again, caught the discrepancies, and asked for more time to address these changes. The court granted that request, but also directed the attorney to “file another brief that would eliminate the substantive and wording changes.” The Seventh Circuit cited its opinion in Khan v. Midwestern University, which addressed differences between electronic and paper versions of a brief. In Khan, the court noted that paper and electronic versions must be identical.
The attorney resubmitted the brief, claiming that it was identical to the March 30 version, but it wasn’t. The attorney claimed that the changes were accidental and asked the court if she could “re-file the March 30 version with handwritten interlineations that would have made the printed brief different from the electronic version” and from the March 30 version. The court, rather fed up by this point, issued an order giving the attorney “14 days to show cause why she should not be subject to professional discipline, including an order to pay any additional costs that appellants have incurred as a result of [her] repeated alternations of a brief that should have changed.”
In her response, the attorney claimed that she thought that the order allowing her to make redactions also allowed her to make substantive changes to the brief. The court “accept[ed] her assertion that she believed that she could do so,” but noted that “errors made with an empty head are hard to excuse.” She blamed “the second error on infelicitous naming of files on her computer.” The court found this excuse harder to swallow, noting that she never compared the documents or reviewed date stamps. According to the court, “Making an error once is bad; making it twice in a row–and in the teeth of the warning in Khan . . . is unfathomable.”
Despite the harsh language, the attorney got off easy–just a public reprimand.
I find this opinion particularly interesting given the uneasy alliance between electronic and print copies of briefs. Many judges are now working off of electronic copies of briefs, yet many circuit still require paper copies to be filed, sometimes a few days after the e-copy is due. It is imperative that attorneys file identical copies. As the Seventh Circuit noted, this requirement ensures that everyone is working for the same version of the document. I am sure that this attorney learned her lesson.