Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, November 23, 2021

A (Cleaned Up) Dust Up

Two recent posts on this blog ((Clean[] Up) Your House, Your Car, Your Life--Not Your Citations, Counterpoint: Use {cleaned up) or something like it) and my first post (Cleaned Up) Citations, discussed the citation parenthetical (cleaned up) and its use and potential for misuse. In a recent decision, the Eleventh Circuit cited an example of misuse that I thought it important to highlight.

Callahan v. United Network for Organ Sharing presented the question of whether documents attached to a brief were judicial records and thus, open to the public.[1] The court dropped this footnote:

A “cleaned up” parenthetical has limited utility at most. And whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information. Here, UNOS quoted Advance Local Media as saying that “[u]nlike ‘materials that invoke judicial resolution of the merits,’ the public interest is not furthered by documents that are ‘irrelevant to the underlying issues,’ like ‘the overwhelming majority of documents disclosed during discovery.’ ” But the text UNOS “cleaned up” comes from an explanatory “cf.” parenthetical summarizing AbbVie Products and therefore does not constitute a holding in Advance Local Media itself. See Advance Loc. Media, 918 F.3d at 1168. Even more troubling, UNOS omitted the end of the sentence it quoted, which reiterated that “public access is presumed for materials that invoke judicial resolution of the merits.” Id. (quotations omitted).[2]

And here is the referenced portion of the appellant’s brief:

At the same time, this Court explained that “[t]he mere filing of a document does not transform it into a judicial record.” Id. at 1167. Unlike “materials that invoke judicial resolution of the merits,” the public interest is not furthered by documents that are “irrelevant to the underlying issues,” like “the overwhelming majority of documents disclosed during discovery.” Id. at 1168 (quoting AbbVie Products, 713 F.3d at 63) (cleaned up).[3]

Finally, here is the referenced passage of Advanced Local Media:

FTC v. AbbVie Prods. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (explaining that “[t]he overwhelming majority of documents disclosed during discovery are likely irrelevant to the underlying issues and will not be ‘heard or read by counsel’ or ‘by the court or other judicial officer,’” but public access is presumed for “materials that invoke ‘judicial resolution of the merits’” (citations omitted)).[4]

So, this is an example where (cleaned up) was misused and misused in a way that the court found misleading. But, the potential for misuse is not unique to, and thus not attributable to, (cleaned up). Other ways of noting alterations or omissions in quoted material, such as brackets or ellipses, may be misused.

Whatever approach we take to quoting authorities it is our responsibility as advocates to ensure that we are scrupulously accurate in doing so.

 

[1] No. 20-13932, 2021 WL 5351863 (11th Cir., Nov. 17, 2021).

[2] Id. at *4.

[3] Randall CALLAHAN, et al., Plaintiffs-Appellees, v. UNITED NETWORK FOR ORGAN SHARING, Defendant-Appellant., 2020 WL 7641873 (C.A.11), 34.

[4] Commr., Alabama Dept. of Corrections v. Adv. Loc. Media, LLC, 918 F.3d 1161, 1168 (11th Cir. 2019).

https://lawprofessors.typepad.com/appellate_advocacy/2021/11/a-cleaned-up-dust-up.html

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