Vt. Memo to the Bar, Oct. 10, 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,

Expansion of the Vermont Digital Evidence Portal to Bennington, Rutland and Windham

Criminal Courts, Filing of Exhibits & Other Miscellaneous Info

DATE: October 10, 2023

For your information, please find:

• Vermont Digital Evidence Portal

• Promulgation Order Amending A.O. 9, Rule 14.A

• Promulgation Order Amending A.O. No.11

• Promulgation Order Amending A.O. No. 50

• Promulgation Order Amending V.R.P.A.C.R. 2, 5(i), 6(a)(b)(c), 7(a) and 9(a)(b)

• Promulgation Order Amending V.R.A.P. 28(e) and 30

• Promulgation Order Amending V.R.C.P. 64

• Promulgation Order Amending V.R.Cr.P. 47(b) and (c) and 45(d)

• Proposed Order Amending the Vermont Rules of Evidence

• Proposed Order Amending V.R.C.P. 4(c), (d), (e), and (f), 55, 62(b), and 80.1(f)

• Proposed Order Abrogating V.R.C.P. 9.3

• Proposed Order Amending V.R.C.P. 11(a)

• Proposed Order Amending V.R.A.P. 3(e) and 27(a)(3)

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I. VERMONT DIGITAL EVIDENCE PORTAL

Starting October 16, 2023, any digital multimedia exhibits filed in the Bennington, Rutland and

Windham Criminal courts must be filed via the Vermont Digital Evidence Portal (VDEP). VDEP is

a new online platform that will allow attorneys and case parties to electronically submit and share

digital multimedia (audio & video) files for use as exhibits in trials and other evidentiary hearings.

This platform is already being used in the Addison and Windsor Criminal courts. Please visit

Vermont Digital Evidence Portal | Vermont Judiciary for more information about how to use VDEP

including a user guide and video of our training for attorneys and litigants. Any technical questions

can be directed to jud.helpdesk@vermont.gov.

II. PROMULGATED RULE AMENDMENTS

a. Promulgation Order Amending A.O. 9, Rule 14.A.

https://www.vermontjudiciary.org/PROMULGATED-AO9-Rule14A--STAMPED

The amendment clarifies that if a disciplinary or disability matter is assigned to a hearing panel

before the expiration of a member’s term, a member whose term expires during the matter may serve

to the conclusion of the matter.

b. Promulgation Order Amending Administrative Order No. 11

https://www.vermontjudiciary.org/PROMULGATED-AO11--STAMPED

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

modernize the language given current technology.

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 with 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.

c. Promulgation Order Amending Administrative Order No. 50

https://www.vermontjudiciary.org/PROMULGATED-AO50amendmentsAnBn--STAMPED

This Order was promulgated on October 10, 2023; effective immediately.

Administrative Order 50, which authorizes a pilot project for service by the Office of Child

Support in certain cases, is amended to expand the project to Addison and Bennington counties.

d. Promulgation Order Amending V.R.P.A.C.R. 2, 5(i), 6(a)(b)(c), 7(a) and 9(a)(b)

https://www.vermontjudiciary.org/PROMULGATED-VRPACR2567and9--STAMPED

The 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 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 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.

e. Promulgation Order Amending V.R.A.P. 28(e) and 30

https://www.vermontjudiciary.org/PROMULGATED-VRAP28(e)and30--STAMPED

The 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 Rule 30 was amended at that time to make the printed case

optional for cases that contain an appeal volume. The name printed case was retained even though

no paper is filed.

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. The amendments address this concern by making a printed case required under Rule

30(a)(1) for most appeals. The appellant must compile a printed case with an index of its contents.

Rule 30(d)(2)(A) is amended to require the index to the printed case to contain the page in the appeal

volume where the document is located in addition to the page in the printed case. Under revised

28(e)(1), if there is an appeal volume and no printed case or a document is not in the printed case,

the parties must cite to the location of the document in the appeal volume. Under existing (e)(2), if

there is a printed case, the briefs must reference the location of the document in the printed case.

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

claims, the Human Services Board, and Employment Security Board. In addition, under Rule

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

f. Promulgation Order Amending V.R.C.P. 64

https://www.vermontjudiciary.org/PROMULGATED-VRCP64--STAMPED

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

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.

g. Promulgation Order Amending V.R.Cr.P. 47(b) and (c) and 45(d)

https://www.vermontjudiciary.org/PROMULGATED-VRCrP47(b)(c)45(d)--STAMPED

The amendments to Rule 47(b)(1) clarify the motion and motion response provisions of the

criminal rules. The amendments permit the filing of replies and surreplies and set out the manner and

timing of filing. The addition of paragraph 47(b)(2) incorporates the provisions of former V.R.Cr.P.

45(d), which is deleted, to address the manner and timing of filing of affidavits accompanying

memoranda on motions. The amendment to subdivision 47(c) provides that the court may state

essential findings in writing, as an alternative to statement on the record, when factual issues are

involved in determining a motion.

III. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND HAVE

NOT BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Amending the Vermont Rules of Evidence

https://www.vermontjudiciary.org/PROPOSED-VRE-

VariousAmendmentsToRemoveGenderedPronounsAssumptions--FORCOMMENT

The proposed amendments remove gendered pronouns and make some small stylistic changes.

Comments on these proposed amendments should be sent by December 11, 2023, to the Hon.

Dickson Corbett, Esq., Chair of the Advisory Committee on Rules of Evidence, at the following

address:

Hon. Dickson Corbett

Dickson.Corbett@vermont.gov

b. Proposed Order Amending V.R.C.P. 4(c), (d), (e), and (f), 55, 62(b), and 80.1(f)

https://www.vermontjudiciary.org/PROPOSED-VRCP4(c)(d)(e)(f)_55_62_80.1(f)--

FORCOMMENT

The proposed amendments to Rule 4 update its provisions to current practice and terminology.

The proposed amendments to the caption and text of Rules 4(d) and 4(e) delete the references to

“personal” service. Proposed Rule 4(d)(2) is amended to aggregate into a single subdivision the

methods of service on the State of Vermont or any agency or officer thereof. Former Rule 4(f)(2),

relating to mail service on an officer of the state as a statutory process agent, is moved to Rule

4(d)(2). The existing provision of Rule 4(d)(2), for service in false claims actions, is reworded for

clarity with no change of meaning intended. The proposed amendment recaptions Rule 4(f) to

“Service by Mail Outside the State.” The text is reorganized to clarify each step in the mail service

process and, in some cases, to modify the requirements of the existing rule. The proposed

amendment to Rule 4(f)(1) clarifies what was implicit in the original rule, that it applies only to

service by mail outside the state. Proposed Rule 4(f)(2) changes the requirement to use “registered or

certified mail, with restricted delivery and return receipt requested” to any mail delivery method that

“requires a signature by the addressee or by the agent of the addressee for receipt of mail.” The

proposed amendment to Rule 4(f)(3) clarifies when service by first-class mail under Rule 4(f) is

permitted and how it is completed.

Proposed Rule 55(d) is added to require service of a default judgment against a party who has not

appeared in the case. The purpose of this service requirement is to give the defaulted party effective

and timely notice of the judgment. Proposed new Rule 55(d)(1) requires service under Rule 4(d) or

(e). Mail service is allowed only if such Rule 4 service cannot be made with due diligence. Proposed

Rule 55(d)(3) allows service by publication on motion, findings, and order that none of the other

methods of service can be made with due diligence. New proposed Rule 55(c)(8) is added to allow

the court to include in a default judgment the projected cost of service required by Rule 55(d).

The proposed amendment to Rule 62(b) states that execution against a party who has not appeared

is stayed until the party to whom judgment was awarded serves the default judgment pursuant to new

proposed Rule 55(d), which now specifies the method of service. The purpose of the rule—to give

the defendant an opportunity to move to set aside a default judgment—remains the same.

The proposed amendment to Rule 80.1(f) allows the court to include in a default judgment the

projected cost of service required by Rule 55(d). The cost of initial service of the summons and

complaint is presumptively a reliable measure of the projected future cost of service of the default

judgment.

Comments on these proposed amendments should be sent by December 11, 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

c. Proposed Order Abrogating V.R.C.P. 9.3

https://www.vermontjudiciary.org/PROPOSED-VRCP9.3--FORCOMMENT

The proposed amendment abrogates Covid-era Civil Rule 9.3 (foreclosure and replevin) on a date

to be determined. The agency is now processing the last of the applications and the Rule will be

obsolete in or about February 2024 when the agency ceases disbursing funds.

Comments on this proposed amendment should be sent by December 11, 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

d. Proposed Order Amending V.R.C.P. 11(a)

https://www.vermontjudiciary.org/PROPOSED-VRCP11(a)--FORCOMMENT

The proposed amendment Rule 11(a) requires every pleading, written motion and other document

that requires a signature to include the signer’s telephone number. The primary purpose of this

change is to assist self-represented litigants who wish to contact an opposing attorney by phone.

Comments on this proposed amendment should be sent by December 11, 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

e. Proposed Order Amending V.R.A.P. 3(e) and 27(a)(3)

https://www.vermontjudiciary.org/PROPOSED-VRAP3(e)27(a)(3)--FORCOMMENT

The proposed amendment to V.R.A.P. 3(e) makes the appellee’s docketing statement optional. In

many appeals, the appellee’s docketing statement is cumulative and not necessary for the Court or

parties. Although the filing is no longer mandatory, as a matter of practice an appellee should

consider whether filing one is useful in a particular case.

The proposed amendment to V.R.A.P. 27(b)(3) allows a reply in support of a motion. This is

consistent with the federal appellate rule, as is the time allowed for the reply—7 days after service of

the response unless otherwise ordered. The time to reply is kept short to avoid delay in resolution of

motions but can be extended under V.R.A.P. 26(b). This proposed amendment does not affect

V.R.A.P 27(b)(1), which allows the Court to act on a motion for a procedural order without notice

to, or response from, other parties.

Comments on these proposed amendments should be sent by December 11, 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

IV. 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.

V. 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

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

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.