Vt. Memo to the Bar, Sept. 16, 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: 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 16, 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:

• Proposed Order Amending V.R.C.P. 43(e) and 54(d)(2)(C)

• Proposed Order Abrogating Rule 6(e) of the Vermont Rules of Civil Procedure and Rule 26(c) of the

Vermont Rules of Appellate Procedure and Amending V.R.A.P. 26(d)(1) and 31(a)

• Proposed Order Amending Rules 5(c) and (d), 6(b)(20), (21), and (22) and Abrogating and Replacing Rule

9 of the Vermont Rules for Public Access to Court Records

• 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. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND

HAVE NOT BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Amending V.R.C.P. 43(e) and 54(d)(2)(C)

The proposed amendment to Rule 43(e) replaces the reference to V.R.C.P. 78(b)(2) (evidence

on motions if requested), which was abrogated by order of June 7, effective August 9, 2021, with

a reference to V.R.C.P. 7(b)(6), added by that order and embodying the provisions of V.R.C.P.

78(b)(2) in revised form.

The proposed amendment to Rule 54(d)(2)(C) replaces the reference to V.R.C.P. 78 (Motion

Day), which was abrogated by order of June 7, effective August 9, 2021, with a reference to

V.R.C.P. 7(b)(4)-(6) added by that order and embodying its relevant provisions in revised form.

Comments on these proposed amendments should be sent by October 13, 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

b. Proposed Order Abrogating Rule 6(e) of the Vermont Rules of Civil Procedure and Rule

26(c) of the Vermont Rules of Appellate Procedure and Amending V.R.A.P. 26(d)(1) and

31(a)

The proposed amendment abrogates both V.R.C.P. 6(e) and V.R.A.P. 26(c). These rules

provide an additional 3 days for certain kinds of service. Abrogation is overdue, given the general

simplification of counting time that occurred when the “day is a day” method of counting was

adopted in 2018. Further, the Vermont trial courts and the Vermont Supreme Court are now fully

operational under the Odyssey File and Serve system and nonelectronic service is limited. Timing

difficulties caused by electronic filing outside of normal business hours, or arising in the limited

number of cases involving nonelectronic service, can be addressed case by case by the court.

The proposed amendment to Rule 26(d)(1) extends the maximum limits on times to which filing

times for briefs may be extended by stipulation. These time limits are identical to those in the

Federal Rules of Appellate Procedure, which were put in place when the federal three-day rule

was eliminated for electronic filing. Now that electronic filing has been adopted for appeals to the

Vermont Supreme Court, and the three-day rule is proposed to be eliminated, the longer time

periods are appropriate for Vermont.

The proposed amendment to Rule 31(a) extends the serving and filing times for principal and

reply briefs. The proposed time for the appellant’s principal brief is increased from 30 to 40 days.

The proposed time for appellee’s principal brief is increased from 21 to 30 days, and that for reply

briefs is increased from 14 to 21 days.

Comments on these proposed amendments should be sent by November 15, 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

c. Proposed Order Amending Rules 5(c) and (d), 6(b)(20), (21), and (22) and Abrogating

and Replacing Rule 9 of the Vermont Rules for Public Access to Court Records

The proposed amendments to Rule 5(c) and (d) clarify that the specific right of access to records

for lawyers and guardians ad litem applies unless there is a restriction on access, such as for

records containing trade secrets or other confidential information that is sealed from particular

parties.

Proposed new Rule 6(b)(20) adds an exception to public access for motions for ex parte relief

until there is a court decision on the motion. Proposed new Rule 6(b)(21) adds an exception to

public access for records subject to a motion for in camera review subject to the court’s decision.

Proposed new Rule 6(b)(22) adds an exception to public access for records containing trade

secrets or other confidential business information.

The proposal abrogates and replaces Rule 9, which concerns limiting or granting access to court

records. Under the proposed amended version, a hearing on a motion to seal or redact is not

required unless there is a request or an objection to sealing or redacting or the court orders a

hearing. The proposed rule deletes reference to standing and instead provides a practical

description of persons who are entitled to notice and an opportunity for hearing. The proposed

rule describes the circumstances in which all parties to a case may stipulate to the sealing or

redacting of a document or documents, subject to the court’s finding of good cause. The proposed

rule also contains a provision specifying that a party can seek permission to appeal ruling on a

motion to seal or for access through V.R.A.P. 5.1.

Comments on these proposed amendments should be sent by November 15, 2021, to Hon.

Timothy B. Tomasi, Chair of the Advisory Committee on the Rules for Public Access to Court

Records, at the following address:

Honorable Timothy B. Tomasi, Chair

Advisory Committee on the Rules for Public Access

Timothy.Tomasi@vermont.gov

II. 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

III. 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.

IV. 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.

V. 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.