The Massachusetts Rules of Appellate Procedure require an appellant to aid the trail court clerk in assembling the appellate record. Part of this duty is the appellant’s obligation to order the transcript “of such parts of the proceedings … as he deems necessary for inclusion in the record.” Mass. R. App. P. (“Rule”) 8(b)(1). When a stenographic record of the proceedings exists, the appellant’s task is simple. Rule 8(b)(1). The process is more complicated, however, when the proceedings have been electronically recorded and no stenographic record exists. Rule 8(b)(3) governs the ordering of transcripts of electronically recorded proceedings (except in child welfare cases).
Rule 8(b)(3) applies only when no transcript is available. When the Notice of Appeal is filed, the clerk of the lower court must notify parties if a transcript of the electronically recorded proceedings has already been produced for the court’s own use and if such transcript is available to the parties. If such a transcript is available, the procedures set forth in Rule 8(b)(3) do not apply and the parties follow Rule 8(b)(1) (for civil cases) as though a stenographic record had been prepared by a court reporter.
Ordering the cassette:
If the appellant wants to include any portion of the electronic recording in the record, the appellant must order the cassette from the clerk of the lower court simultaneously with filing the Notice of Appeal. The clerk is to “promptly provide the cassette.”
Designation of parts of the cassette to be transcribed:
The appellant then designates parts of the cassette to be included in the record and the appellee has an opportunity to counter-designate.
Within 15 days of receipt of the cassette from the lower court clerk, the appellant must file in court and serve on each appellee a document which: (1) states the date of receipt of the cassette; (2) contains a precise designation of the parts of the cassette to be transcribed (including details such as the name of the witness testifying and “an exact quote of the beginning words and concluding words of each designated portion” of the cassette); and (3) identifies the individual or firm selected to prepare the transcript, if the parties have agreed on a transcriber, or notifies the clerk to select a transcriber if the parties have not so agreed.
Unless the entire cassette is to be transcribed, the appellant must also file and serve on the appellee, with the designation, a statement of the issues the appellant intends to present on appeal (this will aid the appellee in deciding what portions to counter-designate).
If the appellant has designated the entire transcript, then within the same 15 days after receipt of the cassette as the designation is required to be filed, the appellant must also send the cassette to the transcriber with an order designating the entire cassette for transcription.
If the appellant has not designated the entire cassette, then the appellee may file and serve a counter-designation within 15 days after receiving the appellant’s designation. The appellee may wish to obtain from the clerk a copy of the cassette to be used in deciding which portions to counter-designate. Like the appellant’s designation, any counter-designation must be specific as to the portions of the cassette to be transcribed. In addition, if the appellee wants a copy of the transcript, the appellee should make arrangements with the transcriber.
An appellant who has not designated the entire cassette must delay sending the cassette to the transcriber to allow time for the appellee to make a counter-designation. Accordingly, after 20 days have elapsed from service of the designation, the appellant must promptly send the cassette to the transcriber with an order stating those parts of the cassette to be transcribed.
Regardless of whether the entire cassette is to be transcribed, the order form must be filed in court and served on all parties, and must state that the original transcript is to be sent to the lower court clerk and must indicate the number of copies to be sent to the appellant.
Disagreement concerning portions of cassette counter-designated:
If the appellant refuses to order transcription of parts of the cassette counter-designated by the appellee, the appellee may either order those parts or apply to the lower court for an order requiring the appellant to do so.
Duties of transcriber:
The transcriber prepares the transcript, sends the original to the lower court clerk with the certificate required by Rule 8(b)(3)(iv), and sends copies to parties who requested them.
Unintelligible portions of the cassette:
If portions of the cassette are unintelligible, the parties must attempt to stipulate to their content. If no agreement is reached, the parties must present their dispute to the trial judge who heard the testimony and the judge shall, if possible, settle the content.