Vt. Memo to the Bar, June 7, 2023

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

THERESE CORSONES, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

Therese.Corsones@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: Teri Corsones, Esq., State Court Administrator

RE: Promulgated & Proposed Rules, Odyssey File and Serve and Public Portal Information,

Filing of Exhibits & Other Miscellaneous Info

DATE: June 7, 2023

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For your information, please find:

• Promulgation Order Adding Rule 26.2 to the Vermont Rules of Criminal Procedure and

Amending A.O. 47

• Proposed Order Amending Proposed Order Amending V.R.P.A.C.R. 2, 5, 6, 7, and 9

• Proposed Order Amending A.O. 11

(Public Notice and Opportunity to Comment Relative to Proposed Rules or Changes in Rules)

• Proposed Order Amending Rules 28(e) and 30 of the Vermont Rules of Appellate Procedure

• Proposed Order Amending Rule 64 of the Vermont Rules of Civil Procedure

• Odyssey File and Serve and Public Portal Information

• Filing of Exhibits

• Miscellaneous

• Receipt of Court Notices and Orders (eCabinet)

I. PROMULGATED RULE AMENDMENTS

Promulgation Order Adding Rule 26.2 to the Vermont Rules of Criminal Procedure and

Amending A.O. 47

https://www.vermontjudiciary.org/PROMULGATED--VRCrP26.2&AO47--STAMPED

This Order was promulgated on June 5, 2023, effective September 5, 2023.

New Rule 26.2 allows for video conference testimony in evidentiary criminal proceedings, upon

agreement of the parties and approval by the court. In contrast to the provisions of V.R.C.P. 43.1 and

V.R.P.P. 43.1, video testimony under the proposed rule may not be provided over defendant’s

objection, and absent express waiver, in recognition of the Sixth Amendment and Article 10 rights to

confrontation and cross examination accorded to the accused. The rule sets the timing and required

content of a written notice of intent to provide testimony of a witness via video conference at trial.

The new rule requires the court to address the defendant directly in open court and determine that the

defendant understands the nature of the rights being waived. The rule sets out the requirements for

providing video conference testimony. Finally, the rule provides criteria for the court to consider if a

party seeks to withdraw from agreement for testimony of a witness by video teleconference.

The amendment to A.O. 47 § 1 incorporates the technical standards currently applicable in video

and audio proceedings under V.R.P.P. 43.1 and V.R.C.P. 43.1 to proceedings under V.R.Cr.P. 26.2.

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND HAVE

NOT BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Amending Proposed Order Amending V.R.P.A.C.R. 2, 5, 6, 7, and 9

https://www.vermontjudiciary.org/PROPOSED-VRPACR2567and9--FOR-COMMENT

The proposed amendments are the result of a comprehensive review of the exceptions to public

access in V.R.P.A.C.R. 6(b) and related provisions of the rules. Some of the proposed changes to

the exceptions include: clarifying the items that are not publicly accessible related to a search

warrant in 6(b)(2); removing 6(b)(3) regarding furlough reports; deleting 6(b)(12) regarding juvenile

proceedings as duplicative of 33 V.S.A. § 5117(c); consolidating three existing exceptions regarding

medical and mental health information into one exception and using language from HIPAA;

combining three financial information exceptions into one; clarifying the discovery exception in

6(b)(16); and adding a provision to exempt proposed prefiled exhibits from public access.

Other proposed amendments include updating definitions to use the term “record” instead of

“document” and to replace “nonpublic” with “not publicly accessible” in Rule 7.

New Rule 5(i) clarifies that parties, their lawyers, and guardians ad litem do not have a specific

right to access to certain records that are exempt from public access.

Comments on this proposed amendment should be sent by August 7, 2023, 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

Timothy.Tomasi@vermont.gov

b. Proposed Order Amending A.O. 11

(Public Notice and Opportunity to Comment Relative to Proposed Rules or Changes in Rules)

https://www.vermontjudiciary.org/PROPOSED-AO11--FOR-COMMENT

The proposed amendments to A.O. 11 § 1 update the list of rules committees to which the order

explicitly applies to add the Advisory Committee on Rules for Electronic Filing, which was made

permanent in September 2022. The list of rules in § 1 is also updated to add the Vermont Rules for

Environmental Court Proceedings, Vermont Rules for Electronic Filing, Rules of Small Claims

Procedure, and Rules for Mandatory Continuing Legal Education.

The proposed amendment to § 5 updates the language regarding publishing a notice of rule-making

by the Court Administrator. In addition to publication in a newspaper, the Court Administrator may

provide public notice through the Judiciary website, social media, and on-line forums.

The proposed amendment to § 7(b) replaces “tape recording” with “transcript or audio recording”

to update the language given current technology.

Proposed new § 9 is added to provide guidance regarding the effective date for rules. Section 9

provides that ordinarily rules will be adopted with an effective date at least 60 days from the date of

promulgation and that rules should have an effective date of either July 1 or January 1. The

regularized effective date was prompted by a suggestion to the Advisory Committee on the Rules of

Civil Procedure by a member of the bar regarding the difficulty of following rule changes and the

varied effective dates. The civil rules committee, with agreement from the criminal, probate, family,

evidence, public access, and electronic filing committees, requested that the Court adopt regularized

effective dates. Normalizing the effective date for amendments to rules will allow more

predictability for both the bench and the bar.

Former § 9 is renumbered § 10 and continues to provide that some or all requirements of the

administrative order may be dispensed with when the public interest requires. This section applies to

the provisions of proposed new § 9. There may be situations where a rule needs to become effective

before the 60-day period passes and outside of the regularized effective dates of July 1 or January 1.

Comments on this proposed amendment should be sent by August 7, 2023, to Emily Wetherell,

Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk

emily.wetherell@vermont.gov

c. Proposed Order Amending Rules 28(e) and 30 of the Vermont Rules of Appellate Procedure

https://www.vermontjudiciary.org/PROPOSED-VRAP28(e)and30--FOR-COMMENT

The proposed amendments to Rule 30 make a printed case a requirement for most appeals even

where there is an appeal volume. Traditionally, the appellate rules required the appellant to submit a

printed case to the Supreme Court so that the Court had ready access to the relevant materials from

the trial court. In 2021, with the implementation of an electronic case management system at the

Supreme Court, all cases records became electronic and the system allowed production of an appeal

volume containing all the documents that are part of the electronic case file from the superior court.

Rule 30 was amended to make the printed case optional for cases that contain an appeal volume

because the Court and the parties were able to access the documents from the proceedings below.

The name printed case was retained even though the document is electronic.

The Court’s experience from working with the appeal volume for two years is that it can be

inefficient and difficult to find relevant information, particularly when there are numerous

documents. Some appeal volumes contain thousands of pages, often not relevant to the issues on

appeal, making it difficult to locate or read the most pertinent information.

The proposed amendments to Rule 30(a)(1) require a printed case for most appeals. The appellant

must compile a printed case with a table of contents and include, at a minimum, the record of actions

from the trial court, the decision on appeal, and other parts of the record relevant to the party’s

argument. Having a printed case will allow the Court to access the most relevant information more

easily. It is not necessary for parties to include all the information from the record below as an

appeal volume will continue to be produced so that the Court will have access to all parts of the

record, even if not contained in the printed case. The printed case should contain the documents

related to the appeal.

The existing limited exceptions to the printed case requirement are retained for appeals from small

claims, the Human Services Board, and Employment Security Board. These types of cases tend to

have self-represented appellants and the record is generally small. In addition, under the proposed

amendment to Rule 30(a)(1)(B), the printed case may be waived on the Court’s initiative or pursuant

to a motion.

Comments on this proposed amendment should be sent by August 7, 2023, to Emily Wetherell,

Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk

emily.wetherell@vermont.gov

d. Proposed Order Amending Rule 64 of the Vermont Rules of Civil Procedure

https://www.vermontjudiciary.org/PROPOSED-VRCP64--FOR-COMMENT

The proposed amendment to Rule 64(b)(1) deletes an obsolete reference to a District Judge. The

proposed amendments to Rule 64(b)(2), (3) and (i) delete an obsolete requirement of a finding “that

the amount of the valuation is within the jurisdiction of the superior court.” The superior court has

no monetary jurisdictional limit.

Comments on this proposed amendment should be sent by August 7, 2023, 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. ODYSSEY FILE & SERVE AND PUBLIC PORTAL INFORMATION

Odyssey File and Serve has recently provided information for court users who are not receiving

email notifications and who question whether their email addresses have mistakenly been placed on

a “Suppression List.” Here’s a link to information in that regard Why was my email placed on the

Suppression List? – eFile (zendesk.com). Here’s another link for court users who wish to have their

email addresses “Safelisted” to ensure proper delivery

https://odysseyfileandserve.zendesk.com/hc/en-us/articles/360046887411.

All Superior Courts, including 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.

Reminders for OFS Users:

1) PDFs must be “flattened” prior to efiling through Odyssey File & Serve

With the increased use in electronic signature tools, it is important for OFS filers to

remember that all PDFs must be flattened prior to filing in OFS. In order to eFile a form-

fillable PDF or a PDF that has been electronically signed, you must first save them as a flat

file. Otherwise, the filing will fail and you will need to refile.

Follow the steps below to "flatten" a completed PDF:

1. Open the completed PDF.

2. Right click on document and select Print. NOTE: if document opens in Adobe, Select

File and select Print.

3. Select the PDF printer. (The Adobe PDF printer is installed automatically with Adobe

Acrobat. Numerous free PDF printer

drivers are available for download from the Internet.)

4. Select OK.

5. Specify location to save the printed, "flattened" version of the form.

6. Select Save

2) 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

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

https://vermont.tylertech.cloud/OfsWeb/Home

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 www.vermontjudiciary.org/efiling

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.

IV. FILING OF EXHIBITS FOR EVIDENTIARY HEARING

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

exhibit lists and exhibits) must be submitted in PDF format. The Vermont Judiciary’s website

provides detailed instructions on how to submit exhibits for use at trials and other kinds of

evidentiary hearings. https://www.vermontjudiciary.org/FilersGuidetoExhibitsforHearings

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

c. Receipt of Court Notices and Orders (eCabinet)

The Vermont courts send all court-issued documents (hearing notices, orders, etc.) to attorneys by

email using the email addresses registered in a system called eCabinet. Attorneys may register up to

three email addresses in the system and are responsible for keeping the information updated. The

email address(es) registered in eCabinet are not used for service of documents filed by opposing

parties, which is done through service contacts in Odyssey File & Serve.

To create an eCabinet account or update an existing account, attorneys must contact the Judiciary

helpdesk through one of the methods listed below. Please include your attorney bar license number

in your communication.

• Email JUD.Helpdesk@vermont.gov

• Telephone the Judiciary helpdesk at 802-828-4357

• Use the online form eCabinet Registration/Update (cognitoforms.com)

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.