Vt. Memo to the Bar, Dec. 13, 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 and Proposed Rules, Odyssey File and Serve and Public Portal

Information, Filing of Exhibits & Other Miscellaneous Info

DATE: December 13, 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:

• Order Promulgating Amendments to Rules 3.1, 4, 56, and 84 of the Vermont Rules of Civil

Procedure, and Abrogating the Appendix of Forms to those Rules

• Order Promulgating Amendments to Rules 43(e) and 54(d)(2)(C) of the Vermont Rules of

Civil Procedure

• Promulgation Order Adding Rule 11(e) to the Vermont Rules of Civil Procedure

• Order Promulgating Amendments to Rule 16.3(b)(3) of the Vermont Rules of Civil

Procedure

• Proposed Order Amending V.R.C.P. 55 and 62

• Proposed Order Amending V.R.C.P. 68

• Proposed Order Amending V.R.S.C.P. 7 and 8

• Proposed Order Amending V.R.C.P. 5, 6(a)(4), 29, and 79.1

• 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

a. Order Promulgating Amendments to Rules 3.1, 4, 56, and 84 of the Vermont Rules of Civil

Procedure, and Abrogating the Appendix of Forms to those Rules

This Order was promulgated on December 13, 2021, effective February 14, 2022.

Rule 3.1(b)(2) is amended to substitute “the applicant’s” for “household” to achieve internal

consistency of usage throughout Rule 3.1 and to provide clear and consistent guidance to the

Court Administrator in developing forms to implement the rule. The party seeking waiver of fees

and payment of costs is denoted “the applicant” everywhere else in the rule. The retention of

“household” to describe income to be counted in paragraph (b)(2) when the rule was generally

amended in 2020 was inconsistent with the general purpose of the 2020 amendments and created

a confusing ambiguity in the application of the rule.

Rule 56 is amended to delineate the timing and the content of motions for summary judgment,

oppositions to summary judgment motions, and motions in reply to opposition. Amended Rule

56(b) is amended to provide in one place the filing times for the three principal procedural steps

for which amended Rule 56 provides. Amended Rule 56(c) requires that responses to the

movant’s statement of undisputed facts are to be provided in numbered paragraphs corresponding

to those of the movant’s statement, and that statements of additional facts—disputed or

undisputed—be submitted in a separate statement, with numbered paragraphs. These provisions

respond to prior concerns that nonmoving parties were causing confusion by incorporating

additional material in their oppositions to the movant’s statement.

Rules 4 and 84 are amended concurrently with the abrogation of the Appendix of Forms. Rule

84 and the Appendix of Forms were originally adopted with the Vermont Rules of Civil

Procedure in 1971 on the model of the 1938 Federal Rules of Civil Procedure. Federal Rule 84

and the federal Appendix of Forms were abrogated in 2015. For at least five years, the Vermont

Court Administrator’s office has been publishing new and amended forms on the Judiciary

website in a “Forms Library,” which now contains a great number and wide variety of detailed

forms. The present amendment of Rule 84 establishes the Judiciary website as the primary source

of forms and reflects the reality that approval is now the Court Administrator’s responsibility.

The amended rule continues to indicate that the forms are sufficient under the rules and provide

the standards of simplicity and brevity.

b. Order Promulgating Amendments to Rules 43(e) and 54(d)(2)(C) of the Vermont Rules of

Civil Procedure

This Order was promulgated on December 13, 2021, effective February 14, 2022.

Rules 43(e) and 54(d)(2)(C) are amended to replace the references to V.R.C.P. 78, which was

abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b), added

by that order and embodying the provisions of V.R.C.P. 78(b)(2) in revised form.

c. Promulgation Order Adding Rule 11(e) to the Vermont Rules of Civil Procedure

This Order was promulgated on December 13, 2021, effective February 14, 2022.

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

provision permitting use in a civil action of remote means to obtain attestations of parties. The

Rule applies whenever these rules otherwise require the filing of a statement made under oath, an

affidavit, or a notarized document. It is a narrower version of 28 U.S.C. § 1746, which applies to

statutory requirements as well.

d. Order Promulgating Amendments to Rule 16.3(b)(3) of the Vermont Rules of Civil

Procedure

This Order was promulgated on December 13, 2021, effective February 14, 2022.

Rule 16.3(b)(3) is amended, pursuant to the Supreme Court’s directive under Administrative

Order 49, ¶ 13, that the Civil Rules Advisory Committee “consider whether a permanent change

to the rules relating to participation in remote mediation is advisable.”

Prior to these amendments, Rule 16.3(b)(3) required parties and counsel to attend a mediation

unless they “stipulate otherwise or the court, for good cause, excuses participation or authorizes

telephone participation. The present amendments retain the basic structure of Rule 16.3(b) that in-person attendance is the default position, with an option for remote mediation if the parties so

stipulate or the court, in its discretion, so orders or excuses a party.

II. 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. 55 and 62

The proposed amendment to Rule 55 resolves for civil actions the problem that there is no

requirement that the party who has obtained a default judgment serve a copy of that judgment on

the party against whom the judgment was entered. The problem had been addressed in a 2020

series of amendments to the Vermont Rules of Small Claims Procedure. Proposed Rule 55(d) is

added to make specific the responsibility of a party who has obtained a default judgment to serve

a copy of the judgment on the defaulting party and file proof of such service.

b. Proposed Order Amending V.R.C.P. 68

The proposed amendment to Rule 68 allows plaintiffs to make offers of judgment. The change

was initially adopted as an emergency amendment to make the practice more widely available at a

time when in-person civil jury trials were largely on hold pursuant to Administrative Order No.

49, ¶ 24. The present amendment makes the change permanent.

c. Proposed Order Amending V.R.S.C.P. 7 and 8

The proposed amendment to V.R.S.C.P. 7 addresses issues that have been plaguing the small

claims docket. The proposed amendment requires personal service of judgments before financial

disclosure hearings can be held and extends the time period between new financial disclosure

hearings, The proposed amendments also include some simple language changes to make the

rules clearer. Simultaneously adopted amendments of V.R.S.C.P. 8 modernize and simplify the

contempt process for failure to appear at a disclosure hearing.

d. Proposed Order Amending V.R.C.P. 5, 6(a)(4), 29, and 79.1

Rule 5 is amended at the request of the Supreme Court to make permanent certain provisions of

Administrative Order 49 that permit filing and serving documents by email in certain

circumstances.

Proposed Rule 5(a) is carried forward and sets forth the service requirement for all documents

subsequent to the summons and complaint or for which the rules may provide another mode of

service.

Proposed new Rule 5(b)(1) defines the five methods of service—using the efiling system, email,

delivery, mailing, and leaving with the clerk.

Proposed new Rule 5(b)(2) sets forth five required or permitted methods of service.

Subparagraph (2)(A) makes clear that service between electronic filers must be made through the

electronic filing system, or by another method agreed between the parties, as provided in Rule

11(d) of the 2020 Vermont Rules for Electronic Filing.

Proposed new Rule 5(b)(2)(B) delineates the methods of service for nonelectronic filers, which

includes self-represented parties or other participants that have not elected or are not required to

electronically filed. Those individuals may serve or be served by delivery, mailing, or commercial

carrier. Email service may be made in three circumstances. First, email service can be used if a

self-represented party files a notice of appearance and provides both an email address and consent

to be served at the email in accordance with simultaneously amended Rule 79.1(d). Second, the

parties may agree to service by email in a signed writing filed with the court. Last, if a non-efiler

does not have a valid physical or postal address, service can be made by email even if consent

was not provided in the notice of appearance. The rule formerly allowed for service by leaving

with the clerk where no address was known. Leaving with the clerk is now authorized by Rule

5(b)(2)(B)(iii) if no valid physical, postal, or email address is known.

Proposed new Rule 5(b)(2)(C) addressed efilers who have not properly created a service contact

on the public list as required by Rule 4(b) of the 2020 Vermont Rules for Electronic Filing. In that

instance, other efilers cannot serve by using the electronic filing system. The rule allows service

by delivery or mailing, or by email if agreed by the parties in a writing filed with the court.

Proposed new Rule 5(b)(2)(D) pertains to service of discovery documents that are not filed with

the court. Under this provision efilers must serve discovery documents by using the electronic

filing system. Service by or on non-efilers may be made by mailing or delivery. In either case, the

parties can agree on a different method of service. Because service of discovery documents is less

formalized, the agreement is not required to be signed or filed with the court, in contrast to

agreements for alternate service of documents filed with the court.

The standards for email filing are in new Rule 5(e)(4) and Rule 5(e)(5) specifies the filing date

for documents depending on how they are filed.

Rule 5(e)(6) carries forward former Rule 5(e)(4), with a sentence making clear that, if it is

available, an inmate may file and serve by email as provided for other litigants.

Rule 5(e)(7) carries forward former Rule 5(e)(5) with the elimination of a reference to the 2010

Vermont Rules for Electronic Filing, which are obsolete.

Rule 5(f) (form of papers and documents) is carried forward with minor amendments and

broken into two paragraphs to address nonelectronically and electronically filed documents

separately.

Rules 5(g) (separation of nonpublic data), and (h) (certificate of service) are carried forward

without change.

New Rule 5(h) incorporates several definitions pertaining to filing and service from the 2020

Vermont Rules for Electronic Filing.

The proposed amendment to Rule 6(a)(4) is made in conjunction with Rule 5(e)(5)(B) to specify

that the last day for filing by email ends at midnight in the court’s time zone.

The proposed amendment to Rule 29 conforms to concurrent changes in Rule 5 regarding

service of discovery materials. Under new Rule 5(b)(2)(D), discovery between electronic filers

must be made by using the electronic filing system unless the parties consent to service by

another method such as through email or file sharing. Discovery on or by nonelectronic filers is

made by mailing or delivery. Again, email or another method can be used if the parties agree.

The proposed amendment to Rule 79.1 clarifies what is required from a self-represented party.

The title of the rule is amended to indicate that it contains provisions related to self-represented

parties. The headings of subdivisions (b), (c), and (d) are amended for clarity. Subdivision (b) is

amended to make the contact information on a notice of appearance the same as for Rule 11(a).

Rule 79.1(d) requires self-represented parties to file and sign a Notice of Appearance for self-represented party. The form contains contact information to facilitate both service by other parties

and notice by the court. Under the proposed rule, self-represented parties can consent to receive

service by email. This conforms to a contemporaneous amendment to Rule 5(b)(2)(B)(ii).

Rule 79.1(i), which required attorneys to provide an eCabinet registration number, is deleted as

obsolete.

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, the Judicial Bureau and the Supreme Court

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.

Attorneys must select the party they represent as the “person responsible for fees” in the Fee

section of the filing process. Additionally, when the attorney represents more than one party,

attorneys should continue to select the same party as the “person responsible for fees”; otherwise,

the attorney will incur an additional efiling use fee.

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.