Vt. Memo to the Bar, Sept. 1, 2021

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 A.O. 49 Amendment, Proposed Rules, E-Filing in the Supreme Court and

Related Education Session, Odyssey File and Serve and Public Portal Information,

Filing of Exhibits & Other Miscellaneous Info

DATE: September 1, 2021

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

and JUD.CAOMemotoBar@vermont.gov to your Safe Senders list.

For your information, please find:

• AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 9-01-21

• Proposed Order Amending Rules 5 and 11 of the Vermont Rules of Civil Procedure

• E-filing in the Supreme Court and Related Education Session

• Odyssey File and Serve and Public Portal Information

• Filing of Exhibits

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 9-01-21

This Order was promulgated on September 1, 2021, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in

response to the COVID-19 pandemic.

Based on the climbing COVID-19 infection rate and projections of public-health experts

concerning the course of the pandemic, ¶ 2 is amended to extend the effective date of

Administrative Order 49 until November 1, 2021.

Paragraphs 5 and 7 are amended to address the limited number of courthouses that do not have

adequate ventilation systems to accommodate unrestricted in-person hearings. To maintain court

operations and respond to evolving ventilation standards, the Court Administrator is authorized to

identify these as limited-entry courthouses. Hearings in limited-entry courthouses must be

scheduled for remote participation unless the Court Administrator has identified courtrooms that

can accommodate small in-person proceedings consistent with applicable standards. Courts must

prioritize high-priority proceedings, including proceedings involving litigants who do not have

access to adequate remote technologies to participate remotely. These spaces remain safe for

judiciary employees working in-person due to specific mitigation measures for staff workspaces,

including portable air filtration units, distancing of workspaces, tracking of employee vaccination

status, and/or mask requirements where appropriate. This amendment does not impact the Court

Administrator’s existing authority to impose restrictions on court operations based on challenges

relating to staffing and security. Paragraph 7 is amended to establish the restrictions on public

entry to limited-entry courthouses.

Paragraph 6 regarding email filing and service is amended in light of the implementation of

electronic filing at the Supreme Court on August 17, 2021. Under revised ¶ 6(a), if the 2020

Vermont Rules for Electronic Filing require a method of filing or service, those rules must be

followed. When the Efiling rules do not apply, the existing provisions regarding email filing and

service are amended to also include the Supreme Court. Former ¶ 6(d) and (e), which previously

described the email filing and service requirements for the Supreme Court, are deleted. Because

of this deletion, ¶ 6(f) and (g) are relettered (d) and (e).

Paragraph 8, which suspends strict enforcement of the timelines for responding to requests for

court records, is amended to explicitly include administrative as well as case records. The

ongoing COVID-19 pandemic impacts the Judiciary’s ability to respond to requests for both case

and administrative records.

The full Order and other updates regarding COVID-19 and court operations are available at

[https://www.vermontjudiciary.org/about-vermont-judiciary/covid-19-and-court-operations]

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND

HAVE NOT BEEN APPROVED BY THE SUPREME COURT.)

Proposed Order Amending Rules 5 and 11 of the Vermont Rules of Civil Procedure

The proposed amendments to Rule 5 respond to the Supreme Court’s request to make

permanent certain provisions of Administrative Order 49 that permit filing and serving certain

documents by email. See A.O. 49, ¶ 6. The proposal also reflects the extension of the Odyssey

case management system and Odyssey File and Serve for electronic service and filing to all units

of the Superior Court and to the Supreme Court.

Rule 5(a) is carried forward and sets forth the service requirements for all papers after the

summons and complaint or for which the rules may provide another mode of service. Proposed

Rule 5(b)(1) provides five required or permitted methods of service. Subparagraph (1)(A) makes

clear that service between registered electronic filers must be made through the electronic filing

system, or by another method agreed between the parties. Under subparagraph (1)(B),

nonelectronic filings, or filings to be served by or on non-efilers, or on efilers not properly

registered, may be served by the three traditional methods—delivery, mailing, or leaving with the

clerk—or by email. The five methods are defined in paragraph (2).

Under the proposed rule, unregistered self-represented parties, other participants, and attorneys,

who are permitted to do so by the 2020 Vermont Rules for Electronic Filing, may file by delivery,

ordinary mail, or email. The email address for each unit of the Superior Court can be found on the

vermontjudiciary.org website and may change from time to time. Self-represented parties and

lawyers are responsible for checking the email filing guidance on the website before filing by

email and following the standards for email filing.

Proposed new Rule 11(e) is added at the suggestion of the Supreme Court to make permanent

the provision of Administrative Order 49, ¶ 17, which permits the use of remote means to obtain

attestations of parties. Paragraph (1) permits a party required to make a statement under oath to

file instead a declaration that the statement is true, subject to the penalty of perjury under 13

V.S.A. § 2904(b), or to judicial sanction. Paragraph (3) makes clear that the provision does not

apply to oath or notarization requirements provided by statute. Rule 11(e) is a narrower version of

28 U.S.C. §1746, which applies to federal statutory requirements as well.

Comments on this proposed amendment should be sent by October 1, 2021, 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

III. E-FILING IN THE SUPREME COURT AND RELATED EDUCATION SESSION

The Supreme Court is live with the Odyssey case management system and electronic filing

through Odyssey File & Serve (OFS). There was a remote education session on e-filing at the

Supreme Court on Tuesday, August 31, 2021, from 12:00-1:30 p.m. A recording of the session

and a link to the power point presentation used during the presentation is available on the

judiciary website https://www.vermontjudiciary.org/news/e-filing-supreme-court-and-related-

education-session

IV. ODYSSEY FILE & SERVE AND PUBLIC PORTAL INFORMATION

As of April 1, 2021, there is a new efiling use fee structure for users of Odyssey File & Serve

(OFS). The new per case fee is $14 per filer or firm, payable upon a party’s first filing after April

1, 2021. This replaces the previous $5.25 fee per envelope model. The Judiciary encourages all

practitioners and others interested to learn more at www.vermontjudiciary.org/efiling

Currently, all trial courts, the Environmental Division, and the Judicial Bureau are using Odyssey

and accepting electronic filings through Odyssey File & Serve. Please use the following links to

access Odyssey electronic filing and portal systems and for more information.

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

electronically file with the courts. To access OFS, please visit

https://vermont.tylerhost.net/ofsweb You can access user guides through the “User Guides” link

in the “Self Help” window. You can also access docket-specific user guides and a new Frequently

Asked Questions on the judiciary’s website at https://www.vermontjudiciary.org/about-vermontjudiciary/electronic-access/electronic-filing For technical support regarding Odyssey File &

Serve, please contact Tyler Technologies at 800-297-5377 or efiling.support@tylertech.com

If you have procedural questions about OFS, please email the judiciary at

JUD.EFileSupport@vermont.gov

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 on our website at 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.

Efiling Training Opportunities

Watch a pre-recorded efiling training webinar from the Vermont Judiciary. 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

Practice setting up your firm and submitting filings. For hands on practice, you can create

your firm, register users, and begin filing practice cases in the Vermont “Stage” environment. Be

sure that the web address 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.

V. FILING OF EXHIBITS

Per the 2020 Vermont Rules for Electronic Filing, all electronically filed documents (including

exhibit lists and exhibits) must be submitted in PDF format. It is recommended that the exhibit list

be filed in Odyssey File & Serve (OFS) as a “Lead Document” and that any PDF exhibits be filed

as attachments to that exhibit list.

Multimedia files that cannot be converted to PDF format should be submitted by nonelectronic

means on a CD, DVD, or USB flash drive (aka thumb drive) and can be mailed or delivered to the

court. It is recommended that filers indicate this on the exhibit list being filed in OFS. Please note

that while the courts are equipped to view common multimedia formats (such as .mp3, .mp4,

.mpeg, .mov, .wmv files), the filer will have to provide compatible player software if an exhibit is

in a proprietary multimedia format.

Finally, please remember that regardless of how an exhibit is filed, it is the filer’s responsibility

during a hearing to present the exhibits. During remote hearings, this means the filer must either

assure that all witnesses have been provided with the marked exhibits in advance and have them

available to view; or be able to share his or her screen to allow all participants to view the exhibit.

If the exhibit is a video or audio file, the litigant must be prepared to play it during the hearing.

VI. 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

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.

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). To update changes

in your contact information, please access your attorney account with the Attorney Portal

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

and JUD.CAOMemotoBar@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.

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. This

website works best with Explorer. 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.

Updating information in the Attorney Portal or in eCabinet does not automatically notify the

other. It is your responsibility to update both. If you are a member of the Vermont Bar

Association, you will also need to separately notify the VBA.