Sixth Circuit Rule 10 defines the “record on appeal” as the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk. If the district court record does not accurately reflect the proceedings before the district court, Federal Rule of Appellate Procedure 10 provides for “correction” or “modification” of the record.   But what happens if a party on appeal does not seek to “correct” or “modify” the record, but rather to supplement the record on appeal with information not presented to the district court?  Does the Sixth Circuit have any authority other than that set forth in FRAP 10 to supplement the record?

In a commercial case from 2003, the Sixth Circuit stated that “[w]hile other circuits have embraced the notion that the record can be supplemented under an appellate court’s equitable authority, we as of yet have not.” Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003) (PDF<!—->).  In the habeas context, however, the Sixth Circuit has since exercised its equitable authority to supplement the record in two capital cases with evidence as to a petitioner’s mental condition at the time of the crime.  See Thompson v. Bell, 373 F.3d 688, 690-91 (6th Cir. 2004) (PDF) and Smith v. Anderson, 402 F.3d 718, 727 (6th Cir. 2005) (PDF) (Cole, J., dissenting on supplementation issue).

District courts within the circuit are unclear as to whether equitable authority to supplement the record exists, and if so, whether it is reserved to the Court of Appeals.  Some have held that no such equitable authority is currently recognized by the Sixth Circuit.  See, e.g., Gonzalez v. Lapping, 2011 U.S. Dist. LEXIS 79648, *3 (N.D. Ohio July 20, 2011) (PDF) (“The respondent’s argument that the Court possesses an equitable power to expand the record in extraordinary circumstances has no merit. First, the rule cited by the respondent involves the equitable power of an appellate court to expand the record. Second, the Sixth Circuit has not even adopted it.”) and Mize v. Tedford, 2009 U.S. Dist. LEXIS 53319, *6-7 (E.D. Mich. June 24, 2009) (PDF) (“Alternatively, a minority of courts have discussed the existence of an ‘inherent equitable power to supplement the record on appeal to include information not presented to the district court,’ but only in unique cases that, in the interest of justice, require special consideration… To the court’s knowledge, however, the Sixth Circuit has never adopted such a view.”)

Others have held that such equitable authority exists, but it is reserved to the Sixth Circuit.  See, e.g., Connolly v. Howe, 2007 U.S. Dist. LEXIS 76395, *6 (W.D. Mich. Oct. 15, 2007) (PDF) (“Petitioner’s request should be directed to the Sixth Circuit, which has the authority to address ‘questions as to the form and content of the record’ pursuant to Rule 10(e)(3) or to exercise its ‘inherent equitable power to supplement the record.'”)

This issue of equitable authority to supplement the record is ripe for clarification by the Sixth Circuit.  Whether, and under what circumstances, the Sixth Circuit will exercise equitable authority to supplement the record, especially in civil cases, remains to be seen.