Third Circuit Affirms Dismissal Where Post-Trial Movant Refused To Recreate Missing Trial Record

You litigate a case in federal court and get an adverse verdict. Believing this result unjust, you file a post-trial motion for judgment as a matter of law and in the alternative for a new trial. But there is a problem: two-thirds of the trial record is missing. What do you do?

In Roberts v. Ferman, a recent opinion issued by the U.S. Court of Appeals for the Third Circuit addressing this scenario, the plaintiff sought, and was granted, extraordinary relief from the district court in the form of an order that the court reporting company produce the entire trial transcript. Roberts v. Ferman, --- F.3d ----, No. 15- 2909, 2016 U.S. App. LEXIS 10966 (3d Cir. June 17, 2016). The company did not comply with the district court's order. The district court, needing a complete record of trial to decide the plaintiff's post-trial motion, then ordered the parties to recreate the trial record in accordance with Federal Rule of Appellate Procedure 10(c). That rule provides that