Is it permissible to cite unpublished federal opinions in state court cases, or unpublished state court opinions in federal court cases? This is not clear, because while the language of the rules is broad, the Federal Rules of Appellate Procedure govern only the Federal Appellate Courts, and the California Court Rules govern only the California Courts. When courts consider unpublished cases, they are generally considered as persuasive authority only, and not binding precedent.
Some California Court decisions addressing this issue include: Gomes v. Countrywide Home Loans (2011) 192 Cal. App. 4th 1149 (noting that the California Court Rules do not prohibit citation to unpublished federal cases, which can be considered as persuasive, not binding authority); People v. Evans (2011) 200 Cal. App. 4th 735 (citation of unpublished federal decisions is permitted by Rule 8.1115); America Online, Inc. v. Superior Court (2001) 90 Cal. App. 4th 1 (declining to consider unpublished out-of-state and federal cases).
Some federal courts have also addressed the citation of unpublished state court decisions in federal court. For example, see Jerry Beeman and Pharmacy Services, Inc. v. Anthem Prescription Management, LLC (CA9 2011) 652 F.3d 1085 (a federal court can consider an unpublished California state appellate court decision, although it is not a binding precedent).
Prior to 2006, the federal courts had similar rules to those in California prohibiting the use of unpublished cases. In 2006, however, the Judicial Conference of the United States issued Federal Rule of Appellate Procedure 32.1, a new rule governing all federal appeals courts, which states:
"A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
(i) Designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and
(ii) Issued on or after January 1, 2007."
Similarly, Rule 36-3(b) of the Rules for the Ninth Circuit Federal Court of Appeals (the federal appeals court with jurisdiction over federal cases in California) states that ""[u]npublished dispositions and orders of this Court issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with Federal Rule of Appellate Procedure 32.1." Unpublished cases and orders issued before January 1, 2007 may not be cited to except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel, or to show double jeopardy. Ninth Circuit Federal Court of Appeals Rule 36-3(c).
These rules only govern federal appeals courts, and only allow citation of unpublished federal opinions issued after January 1, 2007 in federal court cases.
You must serve and file with your brief copies of any cases "not available in a publicly accessible electronic database" which you cite in a brief. Federal Rule of Appellate Procedure 32.1(b). In other words, if the case is available through a commercial database such as Westlaw or Lexis, you do not have to attach it to your brief.
Each federal trial court has its own local rules regarding the citation of unpublished federal decisions in that court. The United States District Court for the Southern District of California (the federal trial court covering San Diego) does not include any prohibition on the citation of unpublished case decisions in its Local Rules. By contrast, the U.S. District Court for the Northern District of California has a local rule prohibiting the citation of unpublished cases (see Rule 3-4(e) of the Civil Local Rules for the U.S. District Court, Northern District of California). Be sure to check the local rules for the federal trial court that is hearing your case to determine the rules applicable to that court for citation of unpublished decisions.
