The following Appeal, filed in the United States Court of Appeals, underscores the need for Certified Court Stenographers to handle trials in all levels of courtroom matters. It is a story that we in the court reporting community hear over and over, “electronically taped” or “digitally tape” trials being replete with errors and ommissions. Please read the Appeal below for more information.
Case: 09-2356 Document: 003110066385 Page: 1 Date Filed: 03/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
APPEAL NO.: 09-2356
UNITED STATES OF AMERICA
v.
ATLANTIC STATES CAST IRON PIPE COMPANY,
a division of MeWane, Inc.,
Atlantic States Cast Iron Pipe Company, Appellant in No. 09-2356
John Prisque, Appellant No. 09-2345
Scott Faubert, Appellant No. 09-2346
Jeffrey Maury, Appellant No. 09-2305
Craig Davidson, Appellant No. 09-2306
On Appeal from a Judgment of Conviction
In the United States District Court for
the District of New Jersey
District Court Criminal Action No. 03-852 (MLC)
SAT BELOW: HONORABLE MARY L. COOPER, U.S.D.J.
MOTION TO CORRECT THE RECORD PURSUANT TO
FEDERAL RULE OF APPELLANT PROCEDURE lO(e).
Case: 09-2356 Document: 003110066385 Page: 2 Date Filed: 03/19/2010
Appellants Atlantic States Cast Iron Pipe Company,
John Prisque, Scott Faubert, Jeffrey Maury and Craig Davidson
(“Appellants”) hereby move pursuant to Fed. R. App. P. 10 (e) to
correct the trial record. Appellants rely on the Certification
of John J. O’Reilly (“O’Reilly Cert.”), attached hereto, in
support of the within motion.
The trial record in this matter is incomplete due to
an inordinate number of indiscernible and/or inaccurate portions
of the trial and sidebar transcripts. (O’Reilly Cert. ~~ 2, 3).
Counsel for Appellants have reviewed all the available audio
recordings from the trial as well as notes from Appellants’
attorneys and notes provided by the District Court in an effort
to correct the transcripts. (0′ Reilly Cert. ~ 2). In three
letters to the District Court, Appellants have identified
approximately ten-thousand (10,000) indiscernible and/or
inaccurate portions of trial and sidebar transcripts. (O’Reilly
Cert. ~ 3). In two letters, Appellants proposed thousands of
corrections to the trial and sidebar transcripts, all of which
concerned substantive corrections. (O’Reilly Cert. ~ 3).
Appellants did not propose any corrections regarding spelling,
grammar or punctuation. (O’Reilly Cert. ~ 3) .
There was no court reporter present during trial;
rather, the record was recorded onto audio discs and later
transcribed by a transcription service. (0′ Reilly Cert. ~ 4).
Case: 09-2356 Document: 003110066385 Page: 3 Date Filed: 03/19/2010
Unfortunately, the transcription service was unable to
completely and accurately transcribe the proceedings. (O’Reilly
Cert. ~ 4) .
Upon request by Appellants, the District Court agreed
to review the indiscernible portions of the trial transcripts to
complete the record for appeal. (0′ Reilly Cert. ~ 5). The
District Court reviewed Appellants’ proposals and made
corrections to the record based on its own review of the audio
recordings. (O’Reilly Cert. ~ 5). This was an enormous
undertaking by the District Court, which required the District
Court to review trial and sidebar transcripts from virtually
every day of the eight-month trial.
After months of careful review by both the District
Court and Appellants, the District Court has advised the parties
that it has completed its review and correction of the trial
transcripts for all but six (6) days of trial. (0′ Reilly Cert.
~ 6). The District Court advised all counsel that four original
audio discs containing the trial testimony of key government
witnesses, including George Shepard, have not been able to be
reviewed by the District Court on its equipment and must be
examined by an expert computer service. (0′ Reilly Cert. ~ 7).
The copies of those audio discs provided to the Parties were
similarly defective and could not be reviewed. (0′ Reilly Cert.
~ 7). The District Court has been unable to locate two other
Case: 09-2356 Document: 003110066385 Page: 4 Date Filed: 03/19/2010
original audio discs containing testimony from two days of
trial. (O’Reilly Cert. ~ 7). As a resul t, the Parties have
never been provided with copies of these discs to review.
(O’Reilly Cert. ~ 7). The inability of the Parties and the
Court to review the audio recordings from those days of trial
has further complicated the efforts to produce a complete and
accurate record for appeal. (O’Reilly Cert. ~ 7) .
The District Court also requires addi tional time to
complete its review and correction of the sidebar transcripts.
(O’Reilly Cert. ~ 6) .
Upon the District Court’s completion of its review and
correction of the trial and sidebar transcripts, the Parties
must review the District Court’s corrections before the
transcripts can be sent to the transcription service. O’Reilly
Cert. ~ 
.
Currently pending before the District Court is
Appellants’ motion seeking access to the data stored on the four
corrupted audio discs. (O’Reilly Cert. ~ 9). Appellants
requested that the District Court permit Appellants to submi t
the data contained on the corrupted discs to an independent
expert to attempt to produce working audio recordings, thereby
enabling the Parties to provide the Third Circuit with a
complete and accurate record of the Trial.
9) .
(O’Reilly Cert. ~
Case: 09-2356 Document: 003110066385 Page: 5 Date Filed: 03/19/2010
Despite the District Court’s best efforts, the record
is not certifiable at this point. (0′ Reilly Cert. ~ 10) The
Appellants expect that the review process can be completed
wi thin sixty (60) days. (0′ Reilly Cert. ~ 10). Appellants
submit that it is more efficient to correct the trial record
now, rather than during the appeal. Accordingly, Appellants
request a sixty (60) day extension from the Third Circuit for
the District Court to certify the record so that these tasks may
be completed in advance of the deadlines to file appellate
briefs.
