Vt. R. Civ. P. 5
V.R.C.P. 5
Reporter's Notes-2022 Amendment
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. See A.O. 49, ¶ 6.
Rule 5(a) is carried forward. It 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.
The amendments to Rule 5(a) are part of a comprehensive change to replace "paper" with "document" throughout the rule. This change is made in the title and in Rule 5(a), (d), and (f). Under Rule 5(i), the broad definition of document is incorporated from the 2020 Vermont Rules for Electronic Filing. Note that Rule (f)(1), which relates to documents filed not using Odyssey File and Serve, refers to "paper documents," which is also defined in Rule 5(i).
The initial sentence of Rule 5(b), requiring service on the attorney of a represented party unless otherwise ordered, remains in effect. However, the list in the second sentence of the traditional service methods of delivery, mailing, or leaving with the clerk, together with the detailed provisions of former Rule 5(b)(1)-(3) defining those methods, are now found in amended Rules 5(b)(1) and (2).
New Rule 5(b)(1) defines the five methods of service. Subparagraph (b)(1)(A) defines service using the electronic filing system by reference to applicable provisions of the 2020 Vermont Rules for Electronic Filing and adds that such service is complete upon transmission unless the sender learns that it was not received. Subparagraphs (1)(B), (C), and (E), as noted above, carry forward with minor alterations the language of former Rule 5(b)(1)-(3). Subparagraph (1)(D) defines service by email. Former Rule 5(b)(4), providing for email service in units and divisions in which electronic filing under the 2020 Vermont Rules for Electronic Filing had not yet been implemented, has been deleted as obsolete. Former Rule 5(b)(5), regarding service by electronic means, is superseded by new Rule 5(b)(1)(A).
New Rule 5(b)(2) states when the five methods of service are required or permitted. 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.
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, even if consent was not provided in the notice of appearance, a non-efiler can be served at an email address provided on a pleading if a non-efiler does not have a valid physical or postal address. The rule formerly allowed for service by leaving with the clerk where no mailing address was known. Leaving with the clerk is now authorized by Rule 5(b)(2)(B)(iii) only where a party is prevented from knowing the other party's address by law or court order. This occurs most frequently when there is an abuse-protection order in place or requested.
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.
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.
Rules 5(c) (Numerous Defendants) is carried forward without change. Rule 5(d) is amended to replace "paper" with "document."
In Rule 5(e), subtitles have been added to the numbered paragraphs for clarity. Rule 5(e)(1) (filing with clerk or judge) is carried forward with minor wording change. Rule 5(e)(2) is amended to make clear that all attorneys and all self-represented parties or other participants in the proceeding registered as efilers must use the court's electronic filing system. Under new Rule 5(e)(3), unregistered self-represented parties, other participants, and attorneys who are permitted to do so by the 2020 Vermont Rules for Electronic Filing may file by delivery, ordinary mail, commercial carrier, or email. The standards for email filing are in new Rule 5(e)(4). The filing must be sent to the email address for the court where the filing is made, which can be found on the Judiciary website at https://www.vermontjudiciary.org/court-divisions/court-email-addresses. The filing must be sent as an attachment, preferably in PDF format. The rule allows the attachment to be in another "readily accessible document type" to provide self-represented parties with some flexibility in submitting documents by email. Documents sent in a proprietary file type or not easily opened by court staff may need to be filed by another means. The email subject line must identify the case number and the court where the filing is made. When an email is sent to multiple courts, it is important for the filer to identify which court the document is meant to be filed in. The rule provides the different methods for signing a document sent by email.
Rule 5(e)(5) specifies the filing date for documents depending on who they are filed. New Rule 5(e)(5)(A) caries forward the provision of former 5(e)(3) that when documents are filed by mailing, delivery, or commercial carrier, the date of filing is the date the filing is received by the clerk's office if received before the office is scheduled to close. Under subparagraphs (e)(5)(B) and (D), filings made by email and using the electronic filing system are filed on a date if submitted before midnight. A simultaneous amendment to Rule 6(a)(4) specifies that the last day for filing by email ends at midnight in the court's time zone. Subparagraph (3)(5)(C) carries forward former 5(e)(3), that filings to a judge are dated when the judge receives it.
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) (renamed Form of 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(i) incorporates several definitions pertaining to filing and service from the 2020 Vermont Rules for Electronic Filing.
Reporter's Notes-2020 Amendment
Rule 5(b)(4) was adopted to make the rule consistent with the 2010 version of the Vermont Rules for Electronic Filing Rules when they were adopted to implement the experimental eCabinet system of electronic filing. See Reporter's Notes to the first 2017 Amendment to this rule. This system was implemented in civil and small claims cases in certain counties and in the Environmental Division. See Reporter's Notes to 2020 Vermont Rules of Electronic Filing Rule 2 (list of counties, divisions, and types of cases where eCabinet is used). The eCabinet system will remain in use in those counties, divisions, and types of cases until the new case management system is rolled out in those counties and in the Environmental Division. As a result, Rule 5(b)(4) will remain in effect until that time. Once the new system has been rolled out in all places where eCabinet has been in effect, Rule 5(b)(4) will no longer apply and the 2020 Vermont Rules of Electronic Filing will govern the subject matter of this rule as specified in Rule 5(b)(5). To fully implement the transition, the language of the last sentence of Rule 5(b)(2) is moved to Rule 5(b)(4)(F) so it will not apply when eCabinet is no longer used.
New Rule 5(b)(5) provides that in units and divisions where the Court Administrator has directed that efiling commence, the 2020 Vermont Rules for Electronic Filing control the method of service.
These amendments were made necessary by the method of post-commencement service that is part of the new electronic filing system and required to be used for electronic filers by 2020 V.R.E.F. 11(d)(1) unless parties agree to a different system. Under the new electronic filing system, a filer directs the system to make service on other electronic filers, and the service consists of a notice that the filing was made and directions on how to view that filing. Under the former eCabinet system, now contained in the 2010 Vermont Rules for Electronic Filing, service on an electronic filer was by emailing a copy of the filing. Rule 5(b)(4)(A), (B), (C), (D), and (E) details that method of service.
Rule 5(e)(3) is amended to make clear that the time of filing an efiling is controlled by the applicable provision of the Vermont Rules for Electronic Filing and not by the civil rule. There is a distinction between the date of filing and the date of service when documents are efiled and notice of the filing is sent through the efiling system as required by 2020 V.R.E.F. 11(d). As noted in 2020 V.R.E.F. 5(c)(1), the date of filing is the date the filing is submitted to the efiling system. The date of service may be later because the system will not serve a document until it has been reviewed and accepted. See Reporter's Notes to 2020 V.R.E.F. 11(b).
Rule 5(e)(5) is amended to make clear that the applicable version of the Vermont Rules for Electronic Filing controls whether an efiling can rejected.
Rule 5(f)(1) is amended to clarify that the filer must comply with the applicable version of the Vermont Rules for Electronic Filing. Rule 5(f)(2) is repealed as no longer necessary.
Rule 5(g) is amended to cross-reference to the Vermont Rules for Public Access to Court Records, which as recently amended, specifies how to file documents to conform to the substantive requirements.
Rule 5(h) is amended to provide that the necessity for a certificate of service with an electronic filing is controlled by 2020 V.R.E.F. 11(g) if it is applicable. Where service is by efilers using the efiling system, a certificate of service is no longer necessary under 2020 V.R.E.F. 11(g)(1).
Reporter's Notes-2018 Amendment
Rule 5(e)(4) is added, and present Rule 5(e)(4) is redesignated (5), to provide a "prisoner's mailbox" procedure for the filing of documents after the complaint in a civil action by an inmate confined in an institution. The provision is virtually identical to the simultaneously added V.R.C.P. 3(b) providing the procedure for inmate filing of a complaint. See Reporter's Notes to that rule. 3. That Rule 25(a)(2)(C) of the Vermont Rules of Appellate procedure be added to read as follows (new matter underlined):
Reporter's Notes-2017 Amendment
Rule 5(h), as added effective September 21,2015, is amended to clarify and make uniform the procedures under it. In some clerks' offices it has been interpreted to (1) require a separate form for each item served, (2) require that the form be on a separate document from the items it identifies, and (3) allow court staff to return filings that lack a certificate, rather than accepting them and then having the judge determine how to handle the absence. The amendment makes clear that the certificate may be incorporated in the document filed or be on a separate page and may embrace multiple documents. Further, the amendments to paragraph (3) make clear that a document filed without a certificate should be accepted for filing, subject to compliance with the order of the judge concerning the filing of a proper certificate.
Reporter's Notes-2017 Amendment
Rule 5 is amended to establish procedures for service and filing of documents under the rule by electronic means in all divisions and units of the superior court. The amended rule is incorporated by reference in V.R.A.P. 25(b), V.R.Cr.P. 49(b), V.R.F.P. 4.0(a)(2)(A), and V.R.E.C.P. 3, 4(a), and 5(a)(2). Conforming amendments will be made to V.R.P.P. 5. Service bye-mail was originally provided for in the 2006 amendments to the rules and eliminated in 2010 with the adoption of the Vermont Rules for Electronic Filing. It is anticipated that once the Vermont Rules for Electronic Filing become effective in all divisions and units, the rule will be amended again to conform to that change. As used in this rule, sending bye-mail attachment has the same meaning as service by electronic means. Under new Rule 5(b)(4)(A), documents must be sent by electronic means if required by the Vermont Rules for Electronic Filing.
New paragraph (4)(B) provides that in all other cases documents may be served by electronic means to the extent that the parties have agreed in writing. The writing must be filed with the court to make clear the terms of the agreement for purposes of filing under amended Rule 5(e). The requirement of a writing is consistent with the provisions of Federal Civil Rule 5(b)(2)(E). It is contemplated that counsel and parties may elect to file a "standing" consent with the court to receive service of documents by electronic means in all matters before the court, obviating the need for a multiplicity of additional written filings for each case. Provision for a "standing" consent for electronic service is also fully consistent with existing widespread practice among counsel to provide copies of case documents to other parties bye-mail. Unless required by the Vermont Rules for Electronic Filing, a party may withdraw, or qualify a "standing" consent to receive service of documents by electronic means by writing filed with the court as well.
The use of electronic transmission is subject to new subparagraph (C) requiring observation of confidentiality standards that may exist for documents in such matters as mental health proceedings or transactions recommended by the Consumer Financial Protection Bureau. New subparagraph (D) requires the use of registered e-mail addresses for service under the rule, because it is simpler and in accord with evolving practice. The current provisions for registration are found in Rule 3 of the Vermont Rules for Electronic Filing and Administrative Order No. 44. Subparagraph (E) makes clear that attorneys and parties are responsible for notifying others of changes in any e-mail address used, as required by V.R.E.F. 3(b).
Rules 5(e) and (f) are divided into numbered paragraphs for clarity. Rule 5(e)(2) is amended for conformity with new Rule 5(b)(4). In a case not governed by the Vermont Rules for Electronic Filing, documents may be filed electronically only with the court's prior approval. New Rule 5(f)(2) makes clear that a paper served or filed electronically in compliance with this rule is a written paper or in writing for purposes of the rules. Cf. Federal Civil Rule 5(d)(3).