2023 Montana Code Annotated › Title 25. Civil Procedure › Chapter 21. Rules of Appellate Procedure › Part 1. Rules › Rule 8. The record

Rule 8. The record.
(1) Composition of the record on appeal - generally. Except as otherwise provided in these rules, the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal in all cases. A copy of any challenged jury instruction, whether given or offered but not given, must be made a part of the record on appeal.
(2) Duty to present sufficient record. The appellant and any cross-appellant have the duty to present the supreme court with a record sufficient to enable it to rule upon the issues raised. Failure to present the court with a sufficient record on appeal may result in dismissal of the appeal or affirmance of the district court on the basis the appellant has presented an insufficient record. If the supreme court remands for completion or supplementation of the record, the party presenting the deficient record will be charged with all shipping and postage costs for returning the record to the clerk of the district court.
(3) Duty of the appellant to request the transcript of proceedings - notice to the appellee - costs of producing - generally.
(a) Absent a stipulation filed with the clerk of the supreme court and served upon the clerk of the district court pursuant to rule 7(3), the appellant shall order from the court reporter, in writing, a transcript of the proceedings deemed necessary for the record on appeal on the same date the notice of appeal is filed. A copy of the written request for transcripts, substantially complying with Form 9 in the Appendix of Forms, shall be contemporaneously filed with the clerk of the district court and served on the appellee. In the event of a filed rule 7(3) stipulation, the requirements of this section shall begin on the day the mediator's report is filed or on day 76 after the filing of the notice of appeal, whichever first occurs.
(b) Within 11 days of the filing of the notice of appeal or notice of cross-appeal, whichever is filed later, the appellee shall either order additional transcripts deemed necessary in writing or, if the transcripts requested are not for purposes of the cross-appeal, the appellee may move the district court for an order requiring the appellant to order the additional transcripts at its expense. A copy of the written order or motion shall be contemporaneously filed with the clerk of the supreme court and served upon the appellant.
(c) Except as provided in section (5) of this rule, the cost of producing any requested transcript shall be paid by the party requesting the transcript, and payment shall be made at the time of ordering the transcript or satisfactory payment arrangements shall be made with the court reporter. An attorney who requests a transcript shall be personally liable for the payment of the costs of the transcript. Transcript costs shall be calculated as provided in section 3-5-604.
(4) Format, filing and service of transcripts, and number of copies.
(a) A transcript shall contain a title page, index pages listing witnesses and exhibits, as applicable, the body of the transcript, and a page certifying in writing - and executed by the court reporter - that the transcript is a true and correct verbatim record of the proceeding transcribed. The person responsible for preparing the transcript shall also include a certificate of service of the transcript on all applicable parties. Each page shall measure 8 1/2 by 11 inches, with combined left and right standard text margins not exceeding 2.25 inches. A page number shall appear in the upper right corner of each page.
(b) Transcripts filed with the clerk of the supreme court shall include 1 paper copy of the transcript in reduced format containing 4 transcript pages on each 8 1/2 by 11-inch page, and a digital copy prepared on a Read Only Digital Video Disk (DVD-R), in searchable Portable Document Format (PDF), certified in writing as true and correct by affixing the court reporter's signature on the front of the DVD-R.
(5) Except as provided by statute, parties are not entitled to transcripts at state expense absent extraordinary circumstances and on order of the supreme court.
(6) Correction or modification of the record. If any difference arises as to whether the record accurately discloses what occurred in the district court, the difference shall be submitted to and settled by the district court within the time provided for transmission of the record or within such time as the district court may for good cause permit, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court, on motion of a party or upon its own motion, either before or after transmission of the record to the supreme court, may order that the omission or misstatement be corrected and, if necessary, that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the supreme court.
(7) Record or transcript unavailable. If a trial or other proceeding was not reported in whole or in part, or if a transcript is otherwise unavailable, a statement of the evidence of the trial, proceeding, or unavailable transcript may be prepared as follows:
(a) A party or parties who proceed under sections (7)(b) or (c) of this rule must, within the time provided for filing the statement and stipulation described in section (7)(b) or the motion described in section (7)(c) of this rule, notify, in writing, the clerk of the district court and the clerk of the supreme court that all or a portion of the record or a transcript is otherwise unavailable, and that the provisions of this rule have been invoked.
(b) Statement by agreement and stipulation. Within 30 days after the filing of the notice of appeal, the parties may prepare and file with the clerk of the district court a joint written statement and stipulation of the unavailable evidence from the best available means including the parties' recollections. This statement and stipulation must identify the trial or proceeding which was not reported or the transcript which is not otherwise available, along with a statement of the reason for such failure to the best of the persons' knowledge and belief. This statement must specify the source or sources of the parties' statements of evidence and must be limited to unavailable evidence which is relevant to the issue or issues on appeal.
(c) Statement by motion and order. Alternatively, within 15 days after the filing of the notice of appeal, a party may file a motion with the clerk of the district court for leave to prepare a statement of the unavailable evidence from the best available means, including the party's recollection.
(i) The motion must be in writing, and identify the trial or proceeding which was not reported or the transcript which is not otherwise available, along with a statement of the reason for such failure, to the best of the movant's knowledge and belief. The motion must be served upon opposing parties, each of whom shall have 15 days in which to respond in writing.
(ii) If the district court grants the motion, the party must, within 20 days of the district court's order, prepare, serve, and file with the clerk of the district court a statement of the unavailable evidence from the best available means, including the party's recollection. This statement must specify the source or sources of the party's statements of evidence and shall be limited to unavailable evidence which is relevant to the issues on appeal. From the date the statement is filed, the opposing party shall have 15 days to respond in writing.
(d) The district court shall examine the statement of unavailable evidence and any response thereto filed pursuant to sections (7)(b) and (c) of this rule, may hold a hearing or hearings thereon and, thereafter, shall promptly file with the clerk of the district court an order adopting or rejecting, in whole or in part, the statement of unavailable evidence such that any statement adopted by the district court most accurately reflects the unavailable evidence. The parties shall have 15 days from the date of filing of the district court's order to file written objections with the clerk of the district court, with contemporaneous service on opposing parties.
(e) The district court's order entered pursuant to section (7)(d) of this rule shall then constitute the record on appeal as to the unavailable evidence. Any properly preserved objection to the district court's order or to the proceedings under this rule may be raised in an amended notice of appeal or cross-appeal filed and served within 15 days of the transmission of the district court's order and associated documents by the clerk of the district court to the clerk of the supreme court.
(f) The district court's order under section (7)(d) of this rule, including timely objections together with all available portions of the record and transcripts, shall be transmitted by the clerk of the district court to the clerk of the supreme court upon the expiration of the time for filing objections in section (7)(d). The appellant's opening brief on appeal is due 45 days following such transmission.
(g) Notwithstanding the filing of the notice of appeal, the district court retains jurisdiction to extend the times set forth in sections (7)(b) and (c) of this rule for good cause shown but not to exceed 45 days, to resolve the matter of the unavailable evidence and to issue the order required under section (7)(d) of this rule.
(8) Agreed statement when the record on appeal is unavailable. When the record on appeal as defined in section (1) of this rule is unavailable due to uncontrollable circumstances, the parties may prepare, sign, and file with the district court within 20 days after the filing of the final notice of appeal, a statement of the case showing how the issues presented by the appeal arose and were decided in the district court, and setting forth only so many of the facts averred and proved, or sought to be proved, as are essential to a decision by the supreme court on the issues presented. If the statement conforms to the truth, it shall be approved by the district court and, together with such additions as the district court may consider necessary to fully present the issues raised on appeal, certified and transmitted to the clerk of the supreme court within the 40 days provided for transmission of the record on appeal. The parties may include copies of the agreed statement as an appendix to their briefs. In the event the provisions of this rule are used to certify the record on appeal, the parties shall be bound thereby and the supreme court shall rely solely on the record as certified in resolving the appeal.
(9) Record of proceedings in courts of limited jurisdiction that are courts of record. The electronically-recorded record of a trial or other proceeding in a court of limited jurisdiction that is a court of record, which is appealed to the supreme court from a district court, shall be filed as a CD/DVD or analog tape together with the district court record.
(a) The clerk of the court from which the original appeal is taken must include with the CD/DVD or analog tape the following information, together with a text file reflecting the information on the CD/DVD or analog tape: originating court name; originating court case number; short case title; date(s) of proceeding; type of proceeding; and audio file name and file type. For CDs or DVDs, the preferred audio file reader, which shall be FTR Player, Microsoft Media Player, or RealPlayer, also must be identified.
(b) In citing to any facts relevant to the issues presented for review from the court of limited jurisdiction that is a court of record, pursuant to rule 12(1)(d), the parties shall reference the location on the CD/DVD or analog tape as Start Time: HH/MM/SS End Time: HH/MM/SS.
History: En. Sup. Ct. Ord. No. AF 07-0016, July 3, 2007, eff. October 1, 2007; amd. Sup. Ct. Ord. No. AF 07-0016, February 20, 2008, eff. March 21, 2008; amd. Sup. Ct. Ord. No. AF 07-0016, May 6, 2009, eff. October 1, 2009; amd. Sup. Ct. Ord. No. AF 07-0016, April 26, 2011, eff. October 1, 2011.