Vt. Memo to the Bar, Oct. 7, 2020

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: Info on Public Hearing, Promulgated, Proposed Rules & Miscellaneous Information

DATE: October 7, 2020

For your information, please find:

• Information Regarding Public Hearing on Proposed Rules on Confidentiality of Responses on Juror

Questionnaires

• Order Promulgating Amendments to Rules 26(c) and 34(b) of the Vermont Rules of Civil Procedure

• Proposed Order Adding Rule 11(a)(3) to the Vermont Rules of Criminal Procedure

• Proposed Order Amending V.R.C.P. 80.5(e)

• Odyssey Electronic Filing & Other Important Info

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PUBLIC HEARING ON PROPOSED RULES ON CONFIDENTIALITY OF

RESPONSES ON JUROR QUESTIONNAIRES

Montpelier, VT - The Supreme Court has sent out for comment proposed rules regarding the

confidentiality of responses by prospective jurors on questionnaires used to determine

qualification for jury service. The proposal remedies inconsistencies among existing rules

regarding public access to the information provided in the questionnaires.

In general, the amendment makes all information provided in written responses nonpublic

except the juror’s name and town of residence absent a judicial determination of good cause. The

remaining content of the questionnaires is available to attorneys and parties in the case with

limited exceptions. The parties may use the information during jury voir dire, in the exercise of

challenges, and as authorized by the court. The proposal was developed through the cooperation

of members of several rules committees and amends provisions of the Rules for Public Access to

Court Records, the Rules Governing Qualifications, List, Selection and Summoning of All Jurors,

the Rules of Criminal Procedure, and the Rules of Civil Procedure.

A public hearing on the proposed amendments will be held virtually on Wednesday, October 28,

2020, at 3 p.m. The hearing will be live streamed on the Vermont Judiciary's YouTube channel.

Individuals wishing to speak at the public hearing should contact Emily Wetherell, Deputy Clerk

of the Supreme Court, emily.wetherell@vermont.gov, for information on how to virtually join the

meeting.

The proposed amendments are on the Vermont Judiciary website.

Written comments on these proposed amendments should be sent by November 16, 2020, to

Hon. Walter M. Morris (Ret.), Reporter for the Advisory Committee on Rules of Criminal

Procedure at the following address:

Honorable Walter Morris (Ret.)

Reporter, Advisory Committee on Rules of Criminal Procedure

Walter.Morris@vermont.gov

II. PROMULGATED RULE AMENDMENTS

Order Promulgating Amendments to Rules 26(c) and 34(b) of the Vermont Rules of Civil

Procedure

This Order was promulgated on October 6, 2020; effective December 7, 2020.

The amendment to Rule 26(c)(2), regarding protective orders, adds the phrase, “for the

discovery or disclosure,” for uniformity with the language of Federal Rule 26(c)(1)(B). Although,

unlike the Federal Rule, disclosure is not mandatory under V.R.C.P. 26, the term is included

because a scheduling order could require a disclosure.

The amendment to Rule 34(b) adds language from F.R.C.P. 34(b)(2)(B) permitting the

production of copies of requested material, rather than their inspection. The language was added

to the Federal Rule in 2015 “to reflect the common practice.” The amendment departs from the

Federal Rule by providing that the requesting party may obtain inspection of the originals on a

showing of “a reasonable need”—for example, a legibility issue not resolvable in a copy.

III. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND HAVE NOT

BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Adding Rule 11(a)(3) to the Vermont Rules of Criminal Procedure

Proposed Rule 11(a)(3) is added, consistent with the Court’s direction in In re Benoit, 2020 VT

58, __ Vt. __, __ A.3d __. In Benoit, the Court held that with the State’s agreement and the

Court’s approval, defendants may preserve a post-conviction relief (PCR) challenge to a predicate

conviction when pleading guilty to an enhanced charge by stating on the record at the change-of-

plea hearing an intent to challenge one or more of the convictions through a PCR petition,

specifically identifying the convictions they intend to challenge, and stating the basis for the

challenges. Under the proposed language, if a defendant pleads guilty or nolo contendere while

preserving the PCR claim, with the consent of the state and the approval of the court, the plea will

be analogous to a conditional plea under V.R.Cr.P. 11(a)(2). The present amendment prescribes

the procedure by which a defendant may preserve such a challenge for post-conviction review.

Comments on this proposed amendment should be sent by December 7, 2020, to Hon. Thomas

A. Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following

address:

Honorable Thomas A. Zonay, Chair

Advisory Committee on Rules of Criminal Procedure

Thomas.Zonay@vermont.gov

b. Proposed Order Amending V.R.C.P. 80.5(e)

The proposed amendment to Rule 80.5(e) reflects the fact that 23 V.S.A. § 1203(k), as amended

by 2007, No. 153 (Adj. Sess.), § 2, now provides that in DUI cases the fee for video reproduction

is $45.00.

Comments on this proposed amendment should be sent by December 7, 2020, to Allan Keyes,

Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

IV. MISCELLANEOUS

a. Odyssey, Electronic Filing, and Other Important Information

The Addison, Bennington, Chittenden, and Rutland trial courts and Environmental Division

began using Odyssey on September 1, with electronic filing scheduled to commence on or after

October 19. Odyssey and electronic filing are already operational in the Orange, Windsor, and

Windham trial courts and the Judicial Bureau. Please use the following links to access Odyssey

electronic filing and portal systems and for more information.

Tyler Technologies eFiling Webinars Scheduling Update. The Tyler Technologies support

team has made changes to the October eFiling training schedule. Anyone who registered for a

date that was rescheduled should have received notification from Tyler via email. If you did not

receive any notice, please check your junk email folder. The October eFiling webinars will be

offered on the following dates:

Mon. Oct. 12, 2020 2PM-3PM

Wed. Oct. 14, 2020 2PM-3PM

Fri. Oct. 16, 2020 12PM-1PM

Odyssey File & Serve. Odyssey File & Serve (OFS) is the platform through which you will

electronically file with the courts. To access Odyssey File & Serve, please visit

https://vermont.tylerhost.net/ofsweb. This page contains user guides in the lower left-hand corner.

They include instructions on how to register and use OFS. For information about OFS processing

fees and for docket specific user guides, please visit https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-access/electronic-filing.

For technical support regarding Odyssey File & Serve, please contact Tyler Technologies at 800-

297-5377 or efiling.support@tylertech.com

Odyssey Public Portal. The Odyssey Public Portal allows you to view your case files. To access

the portal, please visit https://publicportal.courts.vt.gov/Portal/. Before you can view your case

files, you must first register in the portal and then request elevated access. The Public Portal User

Guide contains instructions on how to register and request elevated access. You can read the user

guide via this link:

https://www.vermontjudiciary.org/sites/default/files/documents/VT%20Public%20Portal%20User

%20Guide%20v8.pdf. For full information on how to use the portal, please visit

https://www.vermontjudiciary.org/about-vermont-judiciary/public-portal.

For technical support regarding the Public Portal, please contact the Vermont Judiciary’s

HelpDesk at Jud.helpdesk@vermont.gov. When emailing, please write “Public Portal” in the

subject line.

FAQ. Please visit https://www.vermontjudiciary.org/odyssey for answers to frequently asked

questions and updates about the project.

Efiling Training Opportunities

Register for a live e-filing training webinar. Tyler Technologies offers online training session

on how to electronically file documents using Odyssey File & Serve. These sessions are offered

for free and registration is open to all, including attorneys, firm administrators, self-represented

litigants, and state agency employees. To register please click here:

https://register.gotowebinar.com/rt/7806326256261273102

Watch a pre-recorded e-filing training webinar. The judiciary’s NG-CMS project team

recorded a demonstration of how to use Odyssey File & Serve that you can view here:

https://www.youtube.com/watch?v=ke2ouMDK4VQ&feature=emb_title. You may also watch a

pre-recorded webinar by Tyler Technologies, by visiting

https://register.gotowebinar.com/recording/5669820132306504203 and registering.

Practice setting up your firm and submitting filings. Do you want hands on practice using the

system? Create your firm, register users and begin filing practice cases in the Vermont “Stage”

environment. Be sure that the web address you’re using includes the word “stage”

(https://vermont-stage.tylerhost.net/ofsweb). The Stage environment is available any time. Please

note that submissions will only be reviewed periodically, so you may not get a timely response on

whether your practice submissions have been accepted. The Stage environment is available now

only for familiarity and direct hands-on experience and is not a substitute for registering on the

actual efiling site when you are ready.

Read Vermont specific e-filing guides. The Vermont Judiciary’s website includes several efiling guides to help you navigate Odyssey File & Serve. Visit

https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-access/electronic-filing and

click on Odyssey File and Serve User Guides to view the most updated versions.

b. 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.

Please use the link below to report any form question, concern or issue

http://www.vermontjudiciary.org/website-feedback-form or you can access our Website Feedback

program at the bottom of each web page.

c. 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.

d. 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.