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B.G. v. Board of Education of City of Chicago

United States Court of Appeals, Seventh Circuit

October 12, 2018

B.G., by his next friend, J.A.G., Plaintiffs-Appellants,
Board of Education of the City of Chicago, et al., Defendants-Appellees.

          Before Bauer, Easterbrook, and Manion, Circuit Judges.


          PER CURIAM.

         This case was resolved on the merits last August. Our opinion left open the appropriate disposition of an attorney-discipline proceeding that the court had begun before the appeal was argued.

         Lee Ann Lowder, representing the defendants-appellees, filed her brief on March 30, 2018, a week late. One day after her brief was due, she had sought and received a fifth extension of time to file, even though Circuit Rule 26 requires all requests for extensions to be filed at least seven days before the brief is due.

         Counsel for plaintiffs noticed that the appendix to Lowder's brief contained material that should have been redacted to comply with an earlier judicial order and asked us to replace defendants' appendix with the plaintiffs' version. On April 6 we granted Lowder's motion to file a corrected appendix; the order directed her to "file by April 11, 2018, a new electronic version of [defendants'] brief that includes the fully-redacted appendix".

         Lowder complied with that order to the extent of making essential redactions. But her revised filing also made substantial changes in the body of the brief, altering propositions of both fact and law. Counsel for plaintiffs, who had been preparing a reply brief, noticed these changes and asked for an extension of time to address them. On April 16 this court extended plaintiffs' time but also ordered Lowder to file still another brief that would eliminate the substantive and wording changes of the April 11 filing:

The court directed appellees to submit a version of the brief including redactions in the appendix. It did not direct, invite, or permit any other changes. Most lawyers think that they can improve on their filings, but that does not permit the submission of successive, revised briefs. Cf. Khan v. Midwestern University, 879 F.3d 838, 846-47 (7th Cir. 2018). ... [Lowder] must immediately file a new brief, identical to the original, making only the changes required to redact information in the appendix.

Khan, which this order cited, observed that briefs must not be moving targets: both the judges and opposing counsel rely on their ability to treat the filed version of a brief as definitive. Khan expressed particular concern about differences be- tween the paper and electronic versions of a brief, but its discussion applies to all changes.

         Lowder filed another brief the same day, representing that it was identical to the version of March 30 except for the redactions. Counsel for plaintiffs went back to work on the reply brief and discovered that, yet again, changes had been made. The April 16 version did not match either the version of March 30 or the one of April 11. Lowder replied that the changes had been accidental and asked the court to permit her to re-file the March 30 version with handwritten interlineations that would have made the printed brief different from the electronic version (and different from the March 30 version too). We entered this order on April 20:

The version of appellees' brief filed on April 16, 2018, is stridden.
Failure to follow orders of this court must have consequences. Lee Ann Lowder has 14 days to show cause why she should not be subject to professional discipline, including an order to pay any additional costs that appellants have incurred as a result of appellees' repeated alterations of a brief that should not have changed (other than to redact the appendix) since March 30, 2018. The response is due in 14 days.
Appellees must immediately refile the March 30 version of the brief with no changes (other than the redactions in the appendix). The request to make handwritten changes in the body of the brief is denied. Many members of this court work from the electronic copy, and as the opinion in Khan (cited in the court's April 16 order) observes, the printed and electronic copies must be identical. The court does not comprehend how, after Khan has been cited, counsel can immediately propose a deviation from its requirements.
Appellants' time to file a reply brief is extended to April 24, 2018.
If anything further goes wrong in appellees' performance [of their] obligations, the brief will be stricken without leave to file a replacement and appellees will not be allowed to ...

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