Vt. Memo to the Bar, July 18, 2017

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

PATRICIA GABEL, ESQ. Mailing Address

State Court Administrator Office of Court Administrator

patricia.gabel@vermont.gov 109 State Street

Montpelier, VT 05609-0701

Telephone: (802) 828-3278

FAX: (802) 828-3457

www.vermontjudiciary.org

TO: Members of the Vermont Bar

FROM: Patricia Gabel, State Court Administrator

RE: Promulgated and Proposed Rule Amendments and Miscellaneous Information

DATE: July 18, 2017

For your information, please find the following:

• Order Promulgating Amendments to V.R.C.P. 1, 26, 34(b), 37(f), and 55(c)

• Order Promulgating Amendment to V.R.C.P. 5(h)

• Order Promulgating Amendment to V.R.P.P. 5(e)

• Order Promulgating Amendment to V.R.Cr.P. 32(g)

• Order Promulgating Amendment to V.R.Pr.C. 8.4

• Order Promulgating Amendment to Rule 8 of the Vermont Rules of Admission

• Proposed Order Abrogating and Replacing V.R.C.P. 79.2

• Proposed Order Abrogating and Replacing V.R.A.P. 35

• Proposed Order Promulgating Administrative Order No. 46

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

a. Order Promulgating Amendments to V.R.C.P. 1, 26, 34(b), 37(f), and 55(c)

This Order was promulgated on July 14, 2017, effective September 18, 2017. The

amendments to the civil rules incorporate or adapt recent changes to the federal rules.

The amendment to Rule 1 is intended to encourage increased cooperation among the parties by

clarifying that parties as well as courts have a responsibility to achieve “the just, speedy, and

inexpensive determination of every action.”

The amendment to Rule 26 redefines the scope of discovery. Discovery must now be relevant to

any party’s claim or defense, as opposed to being reasonably calculated to lead to the discovery of

admissible evidence. A proportionality requirement has been added, saying that discovery may now

only be obtained if it is “proportional to the needs of the case” as defined by five factors.

The amendment to Rule 34(b) requires the grounds for objection to be stated specifically

consistent with the requirement that an objection must state whether materials are being withheld.

The amendment to Rule 37(f) clarifies the consequences for failing to preserve electronically

stored or other evidence.

The amendment to Rule 55(c) makes clear that the standards of Rule 60(b) apply only to a

judgment that is “final.”

b. Order Promulgating Amendment to V.R.C.P. 5(h)

This Order was promulgated on July 14, 2017, effective September 18, 2017. Rule 5(h),

as added effective September 21, 2015, is amended to clarify and make uniform the procedures

under it. In some clerks’ offices it has been interpreted to (1) require a separate form for each

item served, (2) require that the form be on a separate document from the items it identifies, and

(3) allow court staff to return filings that lack a certificate, rather than accepting them and then

having the judge determine how to handle the absence. The amendment clarifies that the

certificate may be incorporated in the document filed or be on a separate page and may embrace

multiple documents. Further, the amendments to paragraph (3) clarify that a document filed

without a certificate should be accepted for filing, subject to compliance with the order of the

judge concerning the filing of a proper certificate.

c. Order Promulgating Amendment to V.R.P.P. 5(e)

This Order was promulgated on July 14, 2017, effective September 18, 2017. Rule 5(e) is

amended to adopt language virtually identical to V.R.C.P. 5(h) as simultaneously amended,

requiring a certificate of service to be filed after service of any document under Rule 5.

d. Order Promulgating Amendment to V.R.Cr.P. 32(g)

This Order was promulgated on July 14, 2017, effective September 18, 2017. The

amendment adds subdivision (g) to V.R.Cr.P. 32 to provide specific procedures for conduct of

restitution hearings convened pursuant to 13 V.S.A. § 7043.

e. Order Promulgating Amendment to V.R.Pr.C. 8.4

This Order was promulgated on July 14, 2017, effective September 18, 2017. The

amendment to Rule 8.4(g) and new Comments [3]-[5] adopt, with minor verbal changes,

amendments to the American Bar Association’s Model Rules of Professional Conduct approved

by the ABA on August 8, 2016. The amendment prohibits conduct in the practice of law that

discriminates or harasses on the basis of a lengthy list of characteristics.

f. Order Promulgating Amendment to Rule 8 of the Vermont Rules of Admission

This Order was promulgated on July 14, 2017, effective September 18, 2017. The

amendment revises Rule 8 to reflect the Board’s practice, based on prior Rule § 6(h) and current

Rule 8(c)(3)(A), of requiring that an Applicant requesting an equivalency determination for a

Foreign Law School have exposure to the common law. This training is now an express

requirement of Rule 8(b)(1), ensuring Applicants complete their legal education at a Foreign

Law School whose curriculum is based on the principles of common law.

Rule 8(c)(4) is added to include a cure provision for Applicants who do not otherwise meet

the requirements of Rule 8(b)(1). The cure provision permits Applicants to correct a deficiency

by completing a Master of Laws degree at an Approved Law School in the United States, subject

to specific requirements which focus on ensuring that Applicants receive sufficient training in

common law principles, professional responsibility, legal writing, U.S. law, and UBE topics.

II. PROPOSED RULE AMENDMENTS

a. Proposed Order Abrogating and Replacing V.R.C.P. 79.2

The proposed amendment abrogates and replaces V.R.C.P. 79.2. The current rule focuses

primarily on the recording of court proceedings by news media using conventional cameras and

audio equipment for broadcasting or publication. The proposed rule reflects extensive advances

in technology that place the ability to record and transmit images and sound in the hands of any

person in a courthouse or courtroom with a smartphone or other portable electronic device in his

or her pocket.

The rule was developed by a special committee composed of judges, court staff, members of

all of the Supreme Court procedural rules committees, and representatives of the media. Virtually

identical rules will replace V.R.P.P. 79.2 and V.R.Cr.P. 53.

b. Proposed Order Abrogating and Replacing V.R.A.P. 35

The proposed amendment abrogates and replaces V.R.A.P. 35 consistent with the

simultaneous amendment to V.R.C.P. 79.2. Rule 35 incorporates the policies and language of

V.R.C.P. 79.2, except where the Supreme Court structure and proceedings are different from

those in the superior court.

c. Proposed Order Promulgating Administrative Order No. 46

The proposed A.O. 46 provides for the administrative implementation and performance

standards for V.R.A.P. 36, V.R.C.P. 79.2, V.R.Cr.P. 53, and V.R.P.P. 79.2 governing the use of

electronic devices in the court.

Comments on these proposed amendments should be sent by September 18, 2017, to the

Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair

Special Committee on Video and Electronics in the Courtroom

Vermont Supreme Court

109 State Street

Montpelier, VT 05609-0801

John.Dooley@vermont.gov

A public hearing on all three amendments will be held on August 3, 2017 at 11 a.m. in

Room 11 of the Statehouse.

III. MISCELLANEOUS

a. Court Forms

Court forms are constantly being updated. Please refer to the judiciary website for the most

up-to-date forms. https://www.vermontjudiciary.org/court-forms

b. Obligation under A.O. 41

Attorneys are reminded that an “attorney must report to the State Court Administrator within

thirty days any change of the office mailing or electronic mail address” and that “[n]otice sent to a

reported address is sufficient even if not received by the attorney because of failure to report the

proper address or failure of delivery not caused by the court.” A.O. 41, § 4(c); see A.O. 44, § 1.

Please email those changes to JUD.AttyLicensing@vermont.gov. Your cooperation is very

much appreciated.

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov

to your Safe Senders list.

c. eCabinet Registration

Administrative Order No. 44 requires attorneys in active status to register up to three email

addresses in eCabinet for purposes of receiving notices of hearing and other documents. You

may include staff email addresses in the three email addresses that you specify. eCabinet

registration is required whether you practice in court or not.

If you have already registered in eCabinet, the email address(es) you provided as part of that

process will be used.

If you have not already registered in eCabinet, please go to

https://efiling.eservices.crt.state.vt.us/, click Register Now, and follow the simple prompts.

Attorneys will need their attorney license numbers to register. Helpful information about the

Attorney Email Registration process is also available on the Electronic Filing page of the

judiciary website at https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-

access/electronic-filing. Please contact jud.helpdesk@vermont.gov or call the Helpdesk at 802-

828-4357 with any questions in the meantime.

You are also reminded that you are required to update the email address(es) and other contact

information you have registered as soon as there are any changes, including changes to staff

email addresses you may have included with your registration. To revise the information, please

go to https://efiling.eservices.crt.state.vt.us/, log into eCabinet, click “Account,” choose “My

Profile,” and make the necessary changes to your contact information.

Notification to JUD.AttyLicensing@vermont.gov or in eCabinet of a change to your contact

information does not automatically notify the other. It is your responsibility to notify both. If you

are a member of the Vermont Bar Association, you will also need to separately notify the VBA.