Vt. R. Elec. Filing. 11
Vt. R. Elec. Filing. 11
Reporter's Notes-2022 Amendment
Rule 11(c) is amended to conform to simultaneous amendment of Rule 5(b)(2)(D) of the Vermont Rules of Civil Procedure, which requires efilers to serve discovery using the electronic filing system, unless the parties agree on an alternative method of service. Alternatives and agreements authorized for such service are as stated in the latter rule as amended and accompanying Reporter's Notes.
Reporter's Notes-2020
Rule 11 provides the specifications for service of process and other documents in a case. Rule 11(a) addresses service where a rule or statute requires personal service or authorizes a specific method of service for commencement of an action. Personal service is defined in Rule 2 and is generally the type of service required for commencement of an action although it may be required in other contexts. See Green Mountain Junior Coll. v. Levine, 120 Vt. 332, 334, 139 A.2d 822, 824 (1958); Personal Service, Black's Law Dictionary (10th ed. 2014); see, e.g., V.R.C.P. 45(b) (service of a subpoena). As Rule 11(a) of the 2010 Vermont Rules for Electronic Filing itemizes, appeals to the superior court from administrative agencies or the probate court commence an action. In specific circumstances, other methods of service may be authorized for commencement of an action. See, e.g., V.R.C.P. 4(f), (g), (k). The actions taken to make personal service or to commence an action generally occur outside the court and without court involvement until service is completed. At that point, the party that is commencing the action must file a return of service or a waiver of a requirement of service. Unless Rule 3(b) applies, this filing must be electronic.
Discovery requests and responses are generally required to be served but not to be filed in the court. See, e.g., V.R.C.P. 5(d). In such a circumstance, Rule 11(c) authorizes the person making the request or transmitting the response to use the electronic filing system to make service even though no filing will occur. This is an authorization, and not a requirement, so any other method of service authorized by statute or court rule may be used. Rule 11(c) does not apply where the filer files and serves a document even if it is related to discovery-for example a certification that discovery has occurred.
Rule 11(d) provides that the primary method of service of an electronically filed document between efilers is through the electronic filing system. Under this method, an efiler submits a document to the efiling system and then the system transmits to the other parties a notice that a filing has been made and the method of viewing that filing. Service by the electronic filing system will occur only after clerk review and acceptance of the filing. This means that the date of filing a document may differ from the date a document is served. The filer has the benefit of the date the document is submitted to the efiling system under Rule 5(c)(1) but the receipt of the efiling for purposes of service will not occur until after the efiling has been accepted by court staff and a notification sent to the other parties. For paper filings, the date of receipt is the date of transmission and not the date that the notice is actually opened by a party. See Coles v. Coles, 2013 VT 36, 193 Vt. 605, 73 A.3d 681 (holding that receipt of filing means time of its arrival in mailbox, and not when recipient opens mail). Similarly, for an efiled document, the date of receipt is the date the recipient is notified that the document is available and not the date the recipient first views the document.
The requirement to use the electronic filing system to make service does not prevent service by email or another method if agreed to by the parties. Service by the electronic filing system will occur only after clerk review and acceptance of the filing; at times due to the delay of acceptance because of the volume of filing, alternative methods will be more timely, but the document served may need modification as a result of the review. The alternative method is effective until the system provides notice that the document is available for viewing. At that time, the required method of service is complete and controls over the alternative method. Note that a person may use a supplementary method of service-for example, service by email-even without agreement to give immediate actual notice. The service done in this way is not a substitute for service required by the rule but may supplement such service.
Under Rule 11(e), service of a nonelectronically filed document or service on a party who is not an efiler or has not provided service contacts or service by a person who is not an efiler, must be done by traditional means as specified in the applicable procedural rules. Note that Rule 5(b)(7) requires efilers to provide service contacts at commencement of an action or first appearance and Rule 4(b)(3) requires efilers to keep service contacts current. It is possible, however, that an efiler will fail to comply with the obligation to provide service contacts making it impossible to serve that efiler through the system. In that case, the efiler must be served through traditional means. If service contacts are provided, an efiler may serve to those contacts even if it turns out the contacts are not current and fail to provide notice.
Although the specific means may be different in the case management system, the method of service of court notices, orders or other documents will be essentially the same as the method of
service of party filings. The efiling parties will receive notice of the court filing with directions on how to view the filing. Parties who are not efilers will receive notice by traditional means specified in the applicable rules of service. Rule 11(f).
Rule 11(g) creates a more streamlined method of certifying completion of service on parties served through the electronic filing system, while maintaining the certificate of service requirement established by the applicable rules of procedure if subdivision (e) applies and one or more parties must be served by traditional means. If all parties are served through the electronic filing system, no separate certificate of service is required under Rule 11(g)(1). If at least one party must be served nonelectronically, a certificate of service complying with the applicable rule of procedure must be filed. Rule 11(g)(2); V.R.C.P. 5(h) (applicable in family, environmental and criminal cases by cross-reference in the applicable rules); V.R.P.P. 5(e); V.R.F.P. 2(a)(1), (2) (incorporating V.R.C.P. 5 in CHINS proceedings), 4.0(a)(2) (divorce and other family proceedings); V.R.E.C.P. 3(a), 4(a)(2), 4(a)(3); V.R.E.C.P. 5(a)(2); V.R.Cr.P. 49(b), (c).
In either case, the filer must check a box in the electronic filing system certifying compliance with the rule as required by Rule 11(g)(3). The substance of the certification is also described in Rule 11(g)(3), although the exact words are not prescribed.
Failure to certify by checking the applicable box will prevent efiling of the document. Rule 11(g) provides that a filer who certifies improperly under Rule 3(g)(3) can be subject to sanction under V.R.C.P. 11(c) in any type of case, even where that sanction rule would not otherwise apply. This is to ensure that the sanction regime is common to all types of efilings.
This streamlined system is possible because, with respect to service on efilers with service contacts, the information necessary to determine who was served and how service was accomplished resides in the electronic filing system and can be retrieved. The availability of this information from a dependable source has caused the federal judiciary and some state courts to eliminate the need for any certificate of service in that instance. See F.R.C.P. 5(d)(1)(B); Minn. Gen. R. Prac. 14.05. This rule continues the certification requirement, albeit in a simplified manner, to make the filer aware of the service responsibility.
Self-represented litigants must comply with the service requirements of Rule 11 to the extent they have efiled in a particular case and triggered the obligations of an efiler.
Reporter's Notes-2021 Amendment
Rule 11(d) is amended regarding how to serve parties who are efilers and how to employ any alternate method of service among efilers. Amended paragraph 11(d)(1) clarifies that service of electronic filings between efilers must be made using the electronic filing system by choosing the "File and Serve" function at the time of filing and selecting the party from the Public List, unless there is an efiled, written agreement among the parties for alternative methods of service, consistent with the requirements of amended paragraph 11(d)(2). Election of the "File and Serve" function specified in the rule, as necessary to enable the system to complete the service transmission. Selecting only "File" or using the "courtesy copy" field to enter opposing party's email address is not considered service; courtesy copies are not tracked, and receipt is not verifiable.
Amended paragraph 11(d)(2) continues to allow agreements among efilers for alternative methods of service, and further prescribes the conditions of such agreements. Subparagraph (A) requires that the agreement must be in writing, signed by the parties, and clearly labeled as a separate agreement for an alternative method of service. Under subparagraph (B), the agreement must provide the email addresses for service of each party to the agreement where the alternate service method is by email. Under subparagraph (C), the agreement must be filed and served in the electronic filing system using the service contact of each of the parties to the agreement, prior to any service by the agreed alternative means. And, under subparagraph (D), each filing served pursuant to the agreement must be accompanied by a certificate of service that complies with Rule 11(g)(2).
The reference to agreements for a "supplemental" method of service in the former subparagraph (d)(2) is deleted. Parties are not precluded from separately providing copies of documents to be served by other means as a matter of courtesy, or to provide actual notice of a filing; however, as indicated above, such supplemental transmission does not comply with required service obligations or trigger the reply date otherwise available to the responding party under any applicable rule.
Consistent with existing subdivision (c), service via the electronic filing system of discovery requests or responses (which are not required to be filed with the court per V.R.C.P. 5(d)) remains within the election of the serving party, who may choose to employ alternative means instead consistent with V.R.C.P. 5(b).
Subdivision (g) is amended to clarify certification of compliance with service requirements in efiling via a submission agreement, as well as to detail circumstances in which a separate certificate of service, complying with either V.R.C.P. 5(h) or V.R.P.P. 5(e), is required. Amended paragraph (g)(1) requires that all efilers must certify compliance with service requirements in a submission agreement, as set forth in paragraph (g)(3) and contained in the efiling process. Where all parties are efilers who are served via the system File and Serve function, the (g)(3) submission agreement contemplates the filer's certification that all parties are efilers with service contacts, and served through File and Serve, by checking the indicated submission agreement box. Where not all parties are efilers, the additional requirement of a certificate of service per subparagraph (g)(2) applies. A failure to make the certification will prevent the efiling from occurring, since the efiler will be precluded from advancing beyond this step.
Amended paragraph (g)(2) addresses the efiler's obligation to file an additional certificate of service, apart from the required submission agreement certification. An additional certificate of service, complying with V.R.C.P. 5(h) or V.R.P.P. 5(e) as applicable, is required when serving: (A) a party who is not required to efile and has not elected to efile; (B) a party who has failed to provide a service contact; or (C) a party with whom the efiler has an agreement for an alternative method of service under subparagraph (d)(2).
Where multiple documents are simultaneously filed and served and subparagraph (g)(2) is applicable, one certificate of service referencing them all may be filed as an attachment, in the same efiling "envelope," in the manner authorized by V.R.C.P. 5(h) and V.R.P.P. 5(e).
Revised paragraph (g)(3) prescribes the content of the required submission agreement certification as to service. The certification details that, for any filing that must be served, the efiler has included a certificate of service complying with paragraph (g)(2), and that any remaining parties have service contacts and have been served through the system File and Serve function. The certification of the submission agreement is subject to the obligations of V.R.C.P. 11 (as was the case with the service certification requirement of the former paragraph (g)(3)). The amended paragraph (g)(3) refers to "any filing that must be served," meaning that authorized ex parte filings are not subject to the service certification requirement (although post-filing service requirements may be governed by the specific requirements of an applicable procedural rule, then invoking the service and certification requirements of Rule 11) .