The following Proposed Amendments are proposed by the Rules Committees and have not been reviewed by the Supreme Court.

Proposed Order Promulgating Administrative Order No. 46

The proposed Administrative Order 46 provides for the administrative implementation and performance standards for V.R.A.P. 35, V.R.C.P. 79.2, V.R.Cr.P. 53, and V.R.P.P. 79.2 governing the use of devices in the court. The proposed administrative order contains processes for the media to obtain a permanent registration or a one-time registration and to add an authorized individual to an existing registration.  The proposed order sets limits on equipment and personnel.

Comments on this proposed amendment should be sent by November 5, 2018, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

Proposed Order Abrogating and Replacing Rule 35 of the Vermont Rules of Appellate Procedure

The proposal abrogates and replaces Rule 35 consistent with the simultaneous amendments to V.R.C.P. 79.2. Proposed Rule 35(b) provides definitions for terms used throughout the rule. Under proposed Rule 35(c) any person is authorized to possess any device in a courthouse and use it in a nondisruptive manner. Proposed Rule 35(d) addresses use inside a courtroom. The rule allows registered media, participants, and nonparticipants to possess and use devices in the courtroom, subject to general prohibitions and limits on number and position of devices for video recording and transmission. This is broader than the use allowed in the superior court because there are no witnesses or juries present at the Supreme Court.  Proposed Rule 35(e) sets some limits on recording and transmission to ensure confidentiality of communications between members of the Court, between co-counsel, and between attorney and client. Under the proposal, the Court is authorized to prohibit, terminate, limit, or postpone recording or transmitting of a proceeding based on several factors.

Comments on this proposed amendment should be sent by November 5, 2018, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

Proposed Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 79.2 of the Vermont Rules of Probate Procedure, and Rule 53 of the Vermont Rules of Criminal Procedure

The proposed rule was developed by a special committee composed of judges, court administrators, members of the Supreme Court’s procedural rules committees, and representatives of the media. The special committee’s draft was previously sent out for public comment, discussed by each of the procedural rules committees, and considered at a public hearing before a final version was recommended to the Supreme Court for promulgation. The Supreme Court made further alterations and is sending the proposal out for comment a second time.

The proposed rule governs both possession and use of recording and transmitting devices. It defines terms that are essential to the operation of the rule. Proposed Rule 79.2(c) broadly provides that a device may be used nondisruptively anywhere in a courthouse.

Proposed Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a courtroom. The proposed rule, supplemented by Administrative Order No. 46, lays out a scheme for registration of media and their representatives entitling them to use devices to record and transmit courtroom proceedings. The proposed rule provides that participants may use devices in the courtroom with some restrictions. The proposed rule allows nonparticipants to possess devices in the courtroom, but to use them only in limited circumstances. Devices must be turned off or in silent mode except during nonevidentiary hearings when the jury or jury pool is not present. The proposed rule contains provisions applicable to jurors.

Proposed Rule 79.2(e) sets limits designed both to protect the decorum and the necessary confidentiality of certain proceedings. The proposed rule allows limits on use, but contains a presumption in favor of media access. 

Proposed Rule 79.2(f) states that the court may waive any of the limitations imposed by the rule on request for good cause and subject to any necessary or appropriate restrictions.

The proposal also abrogates current rules V.R.Cr.P. 53 and V.R.P.P. 79.2 and replaces those rules with a statement making the civil rule applicable to proceedings in the criminal and probate divisions. No change is proposed for V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3 so V.R.C.P. 79.2 will continue to apply to public proceedings in the family and environmental divisions.

The proposal abrogates current Administrative Directive No. 28, which concerns use of electronic devices in a courtroom.

Comments on this proposed amendment should be sent by November 5, 2018, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

Proposed Order Adding Rule 902(13) to the Vermont Rules of Evidence

The proposed addition of Rule 902(13) reflects the enactment of 12 V.S.A. § 1913, a statute pertaining to the admissibility of evidence contained in blockchain records. Proposed Rule 902(13) mirrors the language and conditions set forth in § 1913(b)(1), a section declaring that blockchain records are self-authenticating.

Comments on this proposed amendment should be sent by November 5, 2018, to Elizabeth Miller, Chair of the Committee on the Rules of Evidence, at the following address:

Elizabeth Miller, Esq.
Dunkiel Saunders
91 College Street
Burlington, VT  05401
emiller@dunkielsaunders.com

Proposed Amendments to Comments to Rule 1.1 of the Vermont Rules of Professional Conduct

The proposed amendments track the ABA Ethics 20/20 changes to Model Rule 1.1 and its comments. The proposal adds Comments [6] and [7] to address the phenomenon of “outsourcing” work by lawyers and clarifies how the duty of competence interrelate to such practices. The proposed amendment renumbers Comment [6] as Comment [8] and clarifies that the duty of competence includes a general understanding of technology and its potential impact on client matters.

Comments on these proposed amendments should be sent by September 10, 2018 to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Professional Responsibility Program
32 Cherry Street, Suite 213
Burlington, VT  05401
Michael.Kennedy@vermont.gov

Proposed Order Adding Rule 3(e) and Amending Rule 5(f) of the Vermont Rules of Probate Procedure

The proposed amendment adds Rule 3(e) to provide a “prisoner mailbox” procedure for the filing of a petition in a probate proceeding by an inmate confined in an institution. The proposed rule is virtually identical to V.R.A.P. 4(f), effective March 13, 2017, and V.R.C.P. 3(b), adopted effective August 13, 2018.

The proposed amendment redesignates Rule 5(f) as Rule 5(f)(1) and adds Rule 5(f)(2) to provide a “prisoner’s mailbox” procedure for the filing of documents after the petition in a probate proceeding by an inmate confined in an institution.  The provision is virtually identical to the simultaneously proposed V.R.P.P. 3(e) providing the procedure for inmate filing of a petition.

Comments on these proposed amendments should be sent by September 10, 2018 to the Hon. Jeffrey Kilgore, Chair of the Advisory Committee on Rules of Probate Procedure, at the following address:

Hon. Jeffrey Kilgore
Washington Probate Division
65 State Street
Montpelier, VT  05602
Jeffrey.Kilgore@vermont.gov

Proposed Order Promulgating Amendments to Rule 4(a) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

The proposed amendments to Rule 4(a) add two members to the Character and Fitness Committee. This change is being proposed to allow for more efficient processing of character and fitness report reviews during high-need times and for more members to be available for three-member panels.

Comments on this proposed amendment should be sent by August 13, 2018, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel
Office of Attorney Licensing
Costello Courthouse
32 Cherry Street, Suite 213
Burlington, VT  05401
Andrew.Strauss@vermont.gov

Proposed Administrative Order No. 47

Proposed Administrative Order No. 47 implements V.R.C.P. 43.1 and related rules that are simultaneously promulgated to provide for video and audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in actions in the civil, environmental, family, and probate divisions of the superior court. See V.R.C.P. 43.1(e), Reporter’s Notes to simultaneous adoption of V.R.C.P. 43.1, and simultaneous amendments of V.R.F.P. 17 and V.R.P.P. 43(b). The technical standards are adopted by administrative order rather than by rule to permit more rapid and flexible change as necessary to take advantage of changing technological capabilities.

Comments on this proposed amendment should be sent by March 23, 2018, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

Proposed Amendments to Vermont Rules of Civil Procedure, the Vermont Rules for Family Proceedings, and the Vermont Rules of Probate Procedure

The proposed amendment to V.R.C.P. 43(a) reflects the fact that new Rule 43.1 and proposed simultaneous amendments to the family and probate rules, permit testimony to be presented by video or audio conference in appropriate circumstances. The proposed amendment provides expressly that proceedings under Rule 43.1 are an exception to the existing requirement that “testimony… shall be taken orally in open court” unless otherwise provided by specific rules. That provision has been held to prohibit testimony by telephone or other means except by agreement of the parties.  

The proposed addition of V.R.C.P. 43.1 provides a uniform procedure and standards for video or audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in civil actions and in the civil division of the superior court.

The proposed amendment to V.R.F.P. 17 deletes the present text of the rule and the adds new subdivisions (a)-(d) providing that V.R.C.P. 43.1 applies in family division proceedings other than juvenile proceedings under V.R.F.P. 1, subject to specific provisions for certain statutory mental health and guardianship proceedings.

The proposed amendment to V.R.P.P. 43(b) reflects the fact that new V.R.C.P. 43.1, promulgated simultaneously, is applicable in the probate division and permits testimony to be presented by video or audio conference in appropriate circumstances. The proposed amendment provides expressly that proceedings under V.R.C.P. 43.1 are an exception to the existing requirement that “testimony ... shall be taken orally in open court” unless otherwise provided by specific rules.

Comments on these proposed amendments should be sent by March 23, 2018, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

Proposed Amendments to V.R.C.P. 16.2 and 26

The proposed amendment to Rule 16.2 adds a reference to the use of a scheduling order provided in the proposed simultaneous amendment of V.R.C.P. 26(b)(5)(A)(i)-(v) and conforms the designation of the provisions of the rule to the format of other rules.

The proposed amendments to V.R.C.P. 26(b)(4) and (5) clarify their provisions and bring them more closely in line with comparable provisions of the Federal Rules of Civil Procedure and the realities of current Vermont practice. The proposed amendments to V.R.C.P. 26(b)(5)(A) provide for automatic pretrial disclosure of all witnesses who will be offered as experts and the nature of their expected testimony. The proposed amendment to V.R.C.P. 26(b)(5)(A)(i) adapts language from the federal rule requiring automatic disclosure of all opinion witnesses qualified and testifying as experts under V.R.E. 702, 703, and 705 who may be used at trial. This disclosure requirement does not extend to lay opinion witnesses testifying under V.R.E. 701. The proposed amendment to V.R.C.P. 26(b)(5)(A)(ii) departs significantly from both prior Vermont practice and F.R.C.P. 26(a)(2) by giving the same treatment to witnesses retained or employed solely to provide expert testimony and to fact witnesses with expert qualifications. The amended rule provides a simplified report requirement for all categories of experts. The proposed amendment to Rule 26(b)(5)(A)(iii) provides that the disclosures under subparagraphs (A)(i) and (ii) must ordinarily be made by stipulation or a scheduling order under Rule 16.2. Otherwise, the disclosures must be made by the earlier of the trial date or the date by which the case is to be ready for trial, except that evidence attacking another party’s evidence must be made within 30 days of that party’s disclosure. The proposed amendments to Rules 26(b)(5)(A)(iv) and (v) adapt the provisions of former Rules 26(b)(5)(A)(i) and (iii) to the disclosure requirements of amended Rule 26(b)(5)(A). Minor conforming amendments have been made in Rules 26(b)(5)(B), (C), and (E). No amendments have been made to Rule 26(b)(5)(D).

The proposed amendment to V.R.C.P. 26(e) adapts provisions of F.R.C.P. 26(e) as most recently amended in 2007, and makes it consistent with the simultaneous amendments to V.R.C.P. 26(b)(5). The new proposed V.R.C.P. 26(e)(1) follows the federal rule in spelling out a general duty to supplement both a disclosure made under V.R.C.P. 26(b)(5) and a response to other forms of discovery. The new proposed V.R.C.P. 26(e)(2) departs from the federal rule by including party-deponents within the duty to supplement.

Comments on this proposed amendment should be sent by March 23, 2018, to Allan Keyes, Esq., Chair of the Civil Rules Committee, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan, Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05202-0310
ark@rsclaw.com

Proposed Addition of V.R.C.P. Rule 23(g)

The proposed addition of Rule 23(g) provides for the disbursement of residual funds that remain after satisfaction of all claims under a class action judgment or settlement.

Comments on this proposed amendment should be sent by March 23, 2018, to Allan Keyes, Esq., Chair of the Civil Rules Committee, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan, Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05202-0310
ark@rsclaw.com