Failure to obtain transcript of oral argument waives issue on appeal, despite opponent filing that very transcript with its brief on appeal

The district court granted partial summary judgment to Lehman Bros., stating in its opinion that Gateway had abandoned its argument on one aspect of the case during a telephonic oral argument. Gateway appealed, and asserted that: (a) the district court erred in stating that Gateway waived its argument, and (b) that there was no record of the relevant proceedings. Lehman Bros., as appellee, obtained the transcript that in fact had been made of the telephonic oral argument and filed it with its response brief. Gateway argued in reply that it was unaware the argument was transcribed and that any harm in failing to include the transcript was obviated by Lehman’s filing. The Third Circuit disagreed, finding Gateway’s “cavalier argument . . . wrong.” The appellate rules expressly put the onus on the appellant to order transcripts of relevant proceedings and to include them in the record. (This means they must be filed on the district court docket.) The Third Circuit, in no uncertain terms, concluded that Gateway’s failure to include the transcript and assertion of its non-existence “at best shows a remarkable lack of diligence[,] and at worst indicates an intent to deceive this Court.” The opinion is precedential.

_{Case Law Alerts, 3rd Quarter, July 2015}

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