Vt. Memo to the Bar, May 3, 2019

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

PATRICIA GABEL, ESQ. Mailing Address

State Court Administrator Office of the 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, Esq., State Court Administrator

RE: Promulgated Rules and Miscellaneous Information

DATE: May 3, 2019

For your information, please find the following information:

• Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure,

Rule 53 of the Vermont Rules of Criminal Procedure, and Rule 79.2 of the Vermont Rules

of Probate Procedure, and Abrogating Vermont Supreme Court Administrative Directive

No. 28

• Order Abrogating and Replacing Rule 35 of the Vermont Rules of Appellate Procedure

• Order Promulgating Administrative Order No. 46

• Order Promulgating Amendments to the Vermont Rules of Civil Procedure, the Vermont

Rules for Family Proceedings, and the Vermont Rules of Probate Procedure

• Order Promulgating Administrative Order No. 47

• Order Promulgating Amendments to V.R.C.P. 26(b)(A)(i)

• Order Abrogating and Replacing the Vermont Rules for Public Access to Court Records

and Abrogating the Rules Governing Dissemination of Electronic Case Records

• Order Promulgating Amendments to Rule 3 of the Vermont Rules of Admission to the Bar

of the Vermont Supreme Court

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

a. Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure,

Rule 53 of the Vermont Rules of Criminal Procedure, and Rule 79.2 of the Vermont Rules

of Probate Procedure, and Abrogating Vermont Supreme Court Administrative Directive

No. 28

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

members of the Supreme Court’s procedural rules committees, and representatives of the media.

The special committee’s draft was previously sent out for public comment, discussed by each of

the procedural rules committees, and considered at a public hearing before a final version was

recommended to the Supreme Court for promulgation. The Supreme Court made further

alterations and sent the proposal out for comment a second time.

The rule governs both possession and use of recording and transmitting devices. It defines

terms that are essential to the operation of the rule. Rule 79.2(c) broadly provides that a device

may be used nondisruptively anywhere in a courthouse.

Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a

courtroom. The rule, supplemented by Administrative Order No. 46, lays out a scheme for

registration of media and their representatives entitling them to use devices to record and

transmit courtroom proceedings. The rule provides that participants may use devices in the

courtroom with some restrictions. The rule allows nonparticipants to possess devices in the

courtroom, but to use them only in limited circumstances. Devices must be turned off or in silent

mode except during nonevidentiary hearings when the jury or jury pool is not present. The rule

contains provisions applicable to jurors.

Rule 79.2(e) sets limits designed both to protect the decorum and the necessary

confidentiality of certain proceedings. The rule allows limits on use but contains a presumption

in favor of media access.

Rule 79.2(f) states that the court may waive any of the limitations imposed by the rule on

request for good cause and subject to any necessary or appropriate restrictions.

Former rules V.R.Cr.P. 53 and V.R.P.P. 79.2 are abrogated and replaced with a statement

making the civil rule applicable to proceedings in the criminal and probate divisions. No change

is made to V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3 so V.R.C.P. 79.2 will continue to apply to public

proceedings in the family and environmental divisions.

Former Administrative Directive No. 28 is abrogated, which concerns use of electronic

devices in a courtroom.

The new rules will not become effective until September 3, 2019 to allow time for educating

court staff, members of the bar, members of the media, and the public on the provisions of the

new rules. There is a short summary of the rule requirements linked below. The rule requires the

Advisory Committees on the Rules of Civil Procedure, Rules of Criminal Procedure, Rules for

Family Proceedings, and Rules of Probate Procedure to review the operation of the new rules and

report back to the Court by September 7, 2021. The new rules will expire on September 6, 2022

absent further order from the Court.

Summary of Use of Recording and Transmitting Devices in Courthouse or Courtroom

b. Order Abrogating and Replacing Rule 35 of the Vermont Rules of Appellate Procedure

Rule 35 is abrogated and replaced consistent with the simultaneous amendment to V.R.C.P.

79.2. See Reporter’s Notes to V.R.C.P. 79.2.

Rule 35(b) provides definitions for terms used throughout the rule. These definitions are the

same as those provided in V.R.C.P. 79.2(b) except that there is an added definition for “Chief

Justice” and no definition for “juror.”

Under Rule 35(c) any person is authorized to possess any device in a courthouse and use it in a

nondisruptive manner except outside the courtroom, no person can record or transmit images or

sound of an individual without express consent.

Rule 35(d) addresses use inside a courtroom. The rule allows registered media, participants,

and nonparticipants to possess and use devices in the courtroom, but the devices cannot be used

to communicate orally and may not make distracting sounds. Media can record and transmit

video and audio. There are limits on the number and position of devices for video recording and

transmission. The use for the Supreme Court is broader than the use allowed in the superior

court because there are no witnesses or juries at the Supreme Court.

Rule 35(e) sets limits on recording and transmission. Under (e)(1), there are limits on video

and audio recording to ensure confidentiality of communications between members of the Court,

between co-counsel, and between attorney and client. The Court is authorized in (e)(2) to

prohibit, terminate, limit, or postpone recording or transmitting of a proceeding based on several

factors.

c. Order Promulgating Administrative Order No. 46

Administrative Order 46 provides the administrative implementation and performance

standards for recording and transmitting devices as set forth in V.R.A.P. 35 and V.R.C.P. 79.2

and related rules. The administrative directive provides the processes for media registration and

for creating a policy for each courtroom on media use and placement of equipment.

d. Order Promulgating Amendments to the Vermont Rules of Civil Procedure, the Vermont

Rules for Family Proceedings, and the Vermont Rules of Probate Procedure

This Order was promulgated on May 1, 2019; effective August 5, 2019.

The addition of V.R.C.P. 43.1 provides a uniform procedure and standards for video

or audio conference participation of parties and other necessary persons, as well as

testimony of witnesses, in civil actions and in the civil division of the superior court. The

rule sets the terms on which video or audio conferencing may be employed, including

time lines and factors to be considered. The intent is to favor the use of video or audio

conferencing when it will advance disposition of a proceeding as long as technical

standards are satisfied and there is no countervailing circumstance in the particular

situation.

The amendment to V.R.C.P. 43(a) reflects the fact that new Rule 43.1 and simultaneous

amendments to the family and probate rules, permit testimony to be presented by video or audio

conference in appropriate circumstances.

Rule 43.1 also applies so far as applicable in small claims actions by virtue of

V.R.S.C.P. 6(a) and 13 and in the Environmental Division to the extent provided in

V.R.E.C.P. 3, 4(a), and 5(a)(2). The simultaneous amendment to V.R.F.P. 17 makes the

rule applicable in family division proceedings, other than juvenile proceedings under

V.R.F.P. 1, subject to specific provisions for certain statutory mental-health and

guardianship proceedings.

The amendment to V.R.P.P. 43(b) reflects the addition of new V.R.P.P. 43.1, promulgated

simultaneously, which permits testimony to be presented by video or audio conference in

appropriate circumstances. New V.R.P.P. 43.1 basically adopts the procedures of V.R.C.P. 43.1

with minor changes in terminology and timing to better reflect probate practice.

e. Order Promulgating Administrative Order No. 47

This Order was promulgated on May 1, 2019; effective August 5, 2019.

Administrative Order No. 47 is adopted to implement V.R.P.P. 43.1 and V.R.C.P. 43.1 and

related rules that are simultaneously promulgated to provide for video and audio conference

participation of parties and other necessary persons, as well as testimony of witnesses, in actions

in the civil, environmental, family, and probate divisions of the superior court. See V.R.C.P.

43.1(e), V.R.P.P. 43.1 and Reporter’s Notes to simultaneous adoption of V.R.C.P. 43.1, and

simultaneous amendments of V.R.F.P. 17 and V.R.P.P. 43(b). The technical standards are

adopted by Administrative Order rather than by Rule to permit more rapid and flexible change as

necessary to take advantage of changing technological capabilities.

Sections 1(a)-(c) of the order require that, for video conferencing to be used, both remote

participants and those in the courtroom must have visual and aural access to all aspects of the

proceedings comparable to that which they would have if the entire proceeding was occurring,

and all participants were present, in the courtroom. Sections 1(d)-(f) address the necessary

capabilities that the video conference system to be used must have to ensure that those

requirements are met. Section (1)(g) is intended to ensure that the use of video conference does

not in any way diminish a remote party’s ability to communicate confidentially with counsel and

to have timely access to any documentary material that may be necessary for full participation in

the proceeding.

Sections 2(a)-(f) of the order are intended to adapt the provisions of Section 1 to the

circumstances of audio conference and participation.

f. Order Promulgating Amendments to V.R.C.P. 26(b)(A)(i)

This Order was promulgated on May 1, 2019; effective July 1, 2019.

The amendment to Rule 26(b)(5)(A)(i) adapts the language of F.R.C.P. 26(a)(2)(A) for the

provision of the Vermont Rule identifying expert witnesses whose identity must be disclosed in

response to an interrogatory. The amended rule applies to “each person” who may be used at trial

to present expert testimony under Vermont Rules of Evidence 702, 703, and 705. To remove

uncertainty regarding whether this requirement applies to witnesses whose testimony falls within

those Evidence Rules but who were not specially retained to develop their opinions, the proposed

amendment makes clear that Rule 26(b)(5) applies “whether or not the witness may also testify

from personal knowledge as to any fact in issue in the case.”

g. Order Abrogating and Replacing the Vermont Rules for Public Access to Court Records

and Abrogating the Rules Governing Dissemination of Electronic Case Records

This Order was promulgated on May 1, 2019; effective July 1, 2019.

This order abrogates and replaces the Vermont Rules for Public Access to Court Records and

abrogates the Rules Governing Dissemination of Electronic Case Records, which are

incorporated into the new public access rules. The rules cover records in both physical and

electronic form and their adoption is timed to coincide with the implementation of a new case-management system that will eventually support electronic filing and electronic case files in all

dockets and all courts. In many parts, these rules retain the content of the former rules. In other

parts, they amend the prior version or adopt entirely new content because of the shift to

electronic case records.

Rule 1 contains a scope, purpose, and construction statement, explaining the joint

responsibility of providing public access while protecting confidentiality. Rule 2 contains

definitions. Rule 3 provides a general policy to grant access and delineates the custodian of

records. Rule 4 provides the means of access to physical and electronic case and administrative

records. Rule 5 sets out specific rights of access and includes an appendix listing the statutes and

court rules providing specific rights of access. Rule 6 sets forth the exceptions to public access

for case records, the inspection procedure, denial procedure, grievances, access during appeals,

and access to statistical reports. The appendix to Rule 6 lists the statutes and court rules

providing restrictions or prohibitions to public access. Rule 7 relates to filing of case records and

states the responsibilities of the filer and the Judiciary. Rule 8 is about administrative records.

Rule 9 sets out exceptions to the general access policy and contains the method and standards for

granting access, sealing, or redacting records. Rules 10-13 are adopted from the Rules Governing

Dissemination of Electronic Case Records. They contain provisions on electronic-case-record

compilations, electronic-case-record reports, and electronic-data-dissemination contracts.

h. Order Promulgating Amendments to Rule 3 of the Vermont Rules of Admission to the Bar

of the Vermont Supreme Court

This Order was promulgated on May 1, 2019; effective immediately.

The amendment to Rule 3 increases the number of Examiners from nine to eleven by adding

two attorney members and increasing the number of Associate Examiners from seven to eight to

facilitate grading the additional questions contained in the Uniform Bar Examination. The

number of Examiners necessary to comprise a quorum has been increased accordingly.

II. 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.