Vt. R. Elec. Filing. 5
Vt. R. Elec. Filing. 5
Reporter's Note-2024 Amendment
Rule 5(d) and (e) are amended to clarify the provisions regarding accepting and rejecting filings. In addition to rejections made by court staff, the amended rule addresses failed submissions, which are done automatically by the efiling system. The amendments also clarify the bases for rejection. Court staff and user experience demonstrate that a number of rejected efilings result from efiler noncompliance with requirements that are not articulated specifically in existing rules. These include, but are not limited to, such errors as efiling into the wrong case, filing by someone not a party or attorney in a case, filing in the wrong county, duplicate filings, initiating a new case instead of filing into an existing one, and filing by someone not authorized to submit the filing type. Some rejections stem from rule-based requirements, such as failure to sign a document and failure to comply with V.R.P.A.C.R. 7(a)(1) by publicly filing nonpublic documents or content.
Rule 5(b) continues to prescribe the requirements for any efiling, with reference to other Rules for Electronic Filing, including Rules 5 and 7 (formatting); Rule 9 (signature); Rule 10 (payment of necessary fees, or a request for waiver of them); and certification of compliance with V.R.P.A.C.R. 7(a)(1) (public documents containing nonpublic information; redacted and original versions required). For successful submission and acceptance, the existing rule also requires that efilers comply with the instructions in the efiling system and provide correct mailing and emailing addresses and service contact information.
Rule 5(d)(2) is amended to clarify the bases for rejecting a filing. The amended language provides that a filing may be accepted or rejected and that a rejection will provide the reason for the rejection. To supplement the general provision of 5(d)(1) that all electronic filings are reviewed "for compliance with these rules, and Rule 7(a)(1) of the Rules for Public Access to Court Records," amended 5(d)(2) states that staff may reject a filing that contains an error that cannot be corrected by court staff. Rule 5(b) requires efilers to comply with the instructions in the efiling system. Some errors by efilers cannot be corrected by court staff after acceptance and therefore must be rejected. This includes errors such as filing into the wrong case, filing an initial filing as a subsequent filing or vice versa, or filing a criminal case with the wrong date or incorrect charge. The rule indicates that the Court Administrator will provide a list of permissible reasons for rejecting filings and make it available on the Judiciary website. This will provide transparency to efilers regarding the reasons for rejection and greater consistency across the state in how filings are handled.
New paragraph 5(d)(3) addresses failed submissions. In limited situations, efilings that do not comply with the efiling instructions or the system's formatting requirements may result in a submission failure. This means the document cannot be fully processed by the efiling system and it will not reach the queue for clerk review. In these situations, the efiler will receive an automated email notice from the electronic filing system that there was a failed submission.
Former (d)(3) regarding correcting an efiling is renumbered (d)(4) and amended to allow an efiler the benefit of the date of initial submission of a failed submission if corrected within 7 days. Because a failed submission does not appear in the clerk review queue, it is the efiler's responsibility to demonstrate the date a filing was initially submitted. During the efiling process, efilers sometimes experience an "internal error," which indicates that the information is nonresponsive-for example, when unusable credit card information is entered to pay for a filing-incorrect or incomplete and therefore cannot be processed. These internal errors do not result in a submission and therefore are not subject to the correction period. Instructions on how to resubmit a rejected filing or a failed submission are provided on the Judiciary website. https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-access/electronic-filing/faqs
Former paragraphs (d)(4) and (5) are renumbered (5) and (6) without amendment.
New paragraph (d)(7) is added to provide a process for appealing a rejected efiling. The new provision indicates that the Court Administrator will provide an administrative process for reviewing the basis for a rejected efiling and delineate that process on the Judiciary website. It is expected that this process will be required in very few cases, only after an efiler and court staff are unable to resolve rejection disputes otherwise. The appeal must be initiated within 7 days from the date of rejection and the time for correcting the filing is tolled until the appeal is decided. There is no further appeal from this administrative appeal process.
Rule 5(e) regarding court staff processing in the Supreme Court is revised similarly to 5(d). Amended 5(e)(2) requires that a reason for rejection be provided and that court staff may reject a filing that contains an error which cannot be corrected by court staff, including filing into the wrong case or filing a subsequent filing as an initial filing. New 5(e)(3) addresses failed submissions. Former paragraphs (e)(3)-(5) are renumbered (e)(4)-(6). New (e)(7) contains a provision similar to (d)(7) on appealing a rejected efiling.
Rule 5(g)(1) is amended to delete former subparagraphs (g)(1)(A) and (B), which allowed motions requesting alternative forms of relief to be filed in a single document but required motions requesting independent forms of relief to be filed separately. This rule has been difficult to implement in practice because the distinction between alternative and independent forms of relief was not easily ascertainable by court staff reviewing filings. Thus, the requirement was implemented nonuniformly. To achieve more clarity, new (g)(1)(A) requires that all motions be filed as separate lead documents. Submitting these motions as individual lead documents with the correct efiling code will provide clarity for court staff, judges, and parties and ensure that the requests are each identified, tracked, responded to, and resolved. Former (g)(1)(C) is relabeled (g)(1)(B) and continues to require motions and responses to be filed separately.
Rule 5(g) is amended regarding supporting material for motions. New 5(g)(2)(A) allows a memorandum of law in support of a motion to be filed as part of the motion document itself or as a separate document. One memorandum may be filed in support of multiple motions or responses as long as the memorandum identifies the motions or responses to which it relates.
Under revised (g)(2) efilers must file supporting material, including affidavits or exhibits, separately from the motion or memorandum. The separate document must identify the motion(s) or response(s) to which it relates. Supporting material may be submitted either as individual files or as a single compiled document. Under (g)(2)(C), supporting material that is compiled into a single document must be numbered sequentially with numbers that match the electronic page counter. In other words, the first page (including the table of contents) should begin with page one. The references in the party's motion to the supporting material should use this numbering to allow other parties and the court to easily locate the referenced material. Under (g)(2)(C)(ii), the compiled document must begin with table of contents that lists the page reference for each item. In deciding whether to submit supporting material as individual files or as a single, compiled document, the filer should consider the accessibility for the court and the parties. It may be difficult for the court to easily locate and view different types of supporting material at the same time if it is compiled into a single document.
Reporter's Notes-2020
Rule 5(a) refers generally to the steps for efiling. The efiler must log into the electronic filing system and follow the instructions found there. The rule requires certain contact information to be included in each efiling. The rule does not require a telephone number to be included on each efiling but this information may be requested by the court when a party enters a notice of appearance so that the court has another means to contact the party.
Rule 5(b) generally cross-references the rules that contain efiling requirements in the remainder of these rules and in the Vermont Rules for Public Access to Court Records (V.R.P.A.C.R.).
The public access rules have been extensively amended to address the challenge of providing public and special access to electronic court records and at the same time protecting privacy where necessary. The efiler responsibility requirements are set out in V.R.P.A.C.R. 7(a)(1). The Rule requires electronic filers (and nonelectronic filers) to be familiar with the substantive provisions of the public access rules "to determine whether all or part of the record being filed is not publicly accessible." V.R.P.A.C.R. 7(a)(1)(A). If the whole record is not publicly accessible, the efiler must so designate it at the time of filing. V.R.P.A.C.R. 7(a)(1)(D). This occurs in two ways. For an efiler who is initiating a new case, the efiler must designate the type of case in which the efiling is being made. If proceedings in that type of case are not publicly accessible, that efiling and future ones will be inaccessible to the public. Second, for types of cases that are generally open to the public, the efiler will be required to answer whether the efiling is confidential or open to the public.
If the record is not publicly accessible in part, the efiler must separate the part that is publicly accessible from the part that is not publicly accessible, redacting or using another method to prevent public access to the part that is not publicly accessible. The efiler can then efile the unredacted record, designating it as not publicly accessible, and the redacted version, designating it as publicly accessible. V.R.P.A.C.R. 7(a)(1)(C). The efiler must certify that the efiler has reviewed the efiling and the efiling complies with V.R.P.A.C.R. 7(a)(1). If the record being efiled is wholly or partly not publicly accessible, the efiler must specify what actions were taken to comply with the public access rules and why the actions were necessary. V.R.P.A.C.R. 7(a)(1)(B).
Note that if a document is efiled in a type of proceeding that is not publicly accessible or the whole document is either publicly accessible or not, the duty to act and certify compliance can be fulfilled on the electronic filing screen. The efiler who properly categorizes the type of proceeding and type of document will be able to check a box that the efiler has fully complied with the public access rules and thus comply with Rule 5(b)(6). In the more complicated case where the record being efiled is wholly or partly not publicly accessible, the efiler must also efile a separate compliance statement of what actions were taken to comply and why the actions were necessary. That statement plus the checked box constitute the certification required by Rule 5(b)(6).
The last requirement is stated in Rule 5(b)(7). When an efiler first enters a case, whether to initiate the case or to respond and participate in a case, the efiler must separately enter service contacts as specified by the system so others can serve the efiler through the electronic filing site. Note that an efiler can add multiple contacts for purposes of the case. For example, a lawyer who is entering case on behalf of a client may have multiple email addresses at which the lawyer wants to receive notices of filings in the case. The lawyer may have a co-counsel the lawyer wants notified of filings in a case or practice in a firm where filings in cases go through a firm administrator who can assign work in the firm. At first appearance in the case, the efiler should think carefully about who should get notice of efilings and add those persons as service contacts. An efiler can change service contacts in a case but must keep them updated-for example, where there is a change of email address.
As specified in Rule 5(c), an efiling can be made at any time of any day. Under Rule 5(c)(1), an efiling made before midnight is considered made on that date. This does not mean that the efiling will be accepted or rejected at the time it is efiled. Staff who work normal business hours will make that decision.
Rule 5(c)(2) and (3) address situations where an efiler is unable to make an efiling because the electronic filing system is unavailable, and the efiler will be prejudiced by inability to meet a time deadline. Under Rule 5(c)(2), the technological failure is at the efiler's end and prevents access to the internet or to the electronic filing system. In general, such a technological failure is not grounds to allow the efiler to claim the initial attempted filing time and date once the reason for the technological failure is repaired and a new successful efiling is made. The rule, however, allows the court to extend the deadline for good cause in situations of extreme prejudice. An important factor in determining whether the deadline should be extended is whether the efiler could have filed nonelectronically and sought permission to do so under Rule 3(b)(3) to avoid the prejudice.
Rule 5(c)(3) deals with the situation where the technological failure is at the electronic filing system end. In such a situation, the efiler must first make a reasonable effort to file nonelectronically under Rule 3(b)(7). If nonelectronic filing is unavailable, to eliminate the prejudice, any filing deadline is automatically extended to when use of electronic filing system is restored.
Rule 5(d) sets out the processes for staff review of an efiling, acceptance or rejection of the efiling, notice to the efiler, correction of noncompliant efilings, and case number assignment. The more-detailed process for review and acceptance or rejection of an efiling with respect to public-access compliance is set out in V.R.P.A.C.R. Rule 7(a)(3) and (4) and controls for that review. For example, Rule 5(d)(3) gives the efiler 7 days to correct an efiling that is noncompliant with these rules. V.R.P.A.C.R. 7(a)(4)(ii) provides that if review requires an efiler correction, the time limit for such correction is set by the reviewer. The reviewer-determined correction time limit for public-access compliance controls with respect to that correction.
Essentially, staff review covers each of the items listed in Rule 5(b). Note that if correction is required, the efiler must follow the instructions on the electronic filing site for making a corrected efiling, so the reviewer knows that the initial filing was rejected and the reason for the rejection in making the new review decision. When a filing has been accepted, the date and time of filing for all purposes under the applicable rules of procedure are the date and time that the initial filing was submitted and scanned into the electronic system as long as the correction was made within the allotted time.
Another issue is presented under Rule 5(d)(5), in cases where service has preceded filing to commence the action, as provided in V.R.C.P. 3. In such cases, a responsive pleading may be filed prior to filing of the summons and complaint. Such pleadings will be retained by the system administratively in a "holding" file, pending filing of the summons and complaint, upon which, the case will be opened, and a case number assigned.
Under Rule 5(e), the efiler must also make service by the method or methods specified in Rule 11, in addition to meeting the requirements for efiling in Rule 5(b). 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 Rule 11(d). As noted in Rule 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 Rule 11(b).
Rule 5(f) continues the substance of 2010 V.R.E.F. 4(g) with respect to how motions and supporting materials must be efiled. Rule 5(f)(1), (2), and (3) contains provisions similar to 2010 V.R.E.F. 4(g)(1), (2), and (3). Rule 5(f)(4)(A), (B), and (C) is consistent with 2010 V.R.E.F. 4(g)(4), but is displayed in separate subdivisions for clarity.
The intent and meaning of alternative and independent forms of relief is the same as under the 2010 rules. "Alternative forms of relief" address the same issues by providing remedies that are mutually exclusive and may be of decreasing impact on the party against whom relief is sought. For example, in a motion filed under V.R.C.P. 37(b), a defendant claiming that a plaintiff has refused to comply with discovery obligations and orders may request dismissal of a claim or an action and may request in the alternative that if the court does not dismiss, the court preclude plaintiff from using nondisclosed evidence at trial. In another example, a motion to dismiss for failure to state a claim under V.R.C.P. 12(b)(6) or a motion for judgment on the pleadings under V.R.C.P. 12(b)(3) may be combined with a motion for summary judgment under Rule 56. These are single motions based on the same facts and legal requirement; only the relief sought is different.
"Independent forms of relief," conversely, address independent issues and provide different and independent remedies, as when two or more unrelated motions are combined in a single document. For example, a motion entitled "Motion to Enforce Settlement Agreement, Motion to Compel, and Motion to Dismiss Counterclaim" contains three separate motions, each relating to a different set of facts and having a different legal foundation. In another example, a "Motion to Extend Time for Service" and a "Motion for Alternative Service," which asks for service by a tack order, are requests under different rules that requires a different factual basis. In these examples, each motion relates to a different set of facts and has a different legal foundation.
Rule 5(f)(4)(D) is added to cover a situation where supporting materials are efiled to support multiple memoranda of law. In such a situation, the pages of the supporting materials must be numbered, and there must be a table of contents.
Rule 5(g) is a placeholder for future action with respect to criminal history information, which is filed in criminal cases by the prosecution for consideration in establishing conditions of release of a charged defendant. Typically, the source of the criminal history information is the Federal Bureau of Investigation which in turn gathers it from state and local law enforcement sources, including from those in Vermont. It includes arrest, prosecution, and conviction information and may contain law enforcement investigatory information. In response to a request from the Vermont Criminal Information Center, the Supreme Court through its rules committees is considering what part or parts of the criminal history information provided for conditions of release of a charged defendant should be considered not publicly accessible under federal and state law. The answer to the question is likely to depend on the nature of the information provided so this rule separates the criminal history information into parts that are relevant to the public access issue.
Reporters Notes-2021 Amendment
Rule 5 is amended in three respects in connection with the introduction of efiling in the Supreme Court.
First, subdivision (b)(4) is amended to make clear that an efiling of a notice of appeal cannot be rejected for failure to pay a required entry fee to the judiciary at the time the notice of appeal is filed, or for failure to file a request to waive the fee. See V.R.A.P. 3(b)(1)(a); 32 V.S.A. § 1431. Although V.R.A.P. 3(b)(1)(A) requires paying the filing fee with the filing of the notice of appeal, subparagraph (b)(1)(D) states that an appellant's "failure to take any step other than a timely filing of a notice of appeal does not affect the appeal's validity, but is ground for the Supreme Court to take any appropriate action, including dismissal." Thus, the validity of the notice of appeal cannot be affected by the failure to pay the entry fee. Note that the amendment relates to the filing of the appeal entry fee and not to any required payment to the efiling vendor.
New subdivision (e) is added to specify that court staff will perform clerk review for filings in the Supreme Court, to specify the permissible grounds for rejecting an efiling in the Supreme Court, and to provide for corrections of rejected efilings in the Supreme Court. The grounds for rejecting an efiling in the Supreme Court are limited and the decision whether to reject an efiling is committed to the discretion of the staff reviewer. The process for correcting a filing is the same as for filings to the superior court. The rule does not apply to filings that are rejected by the efiling system for failure to comply with system requirements. In addition, the rule does not limit any remedy the Supreme Court may impose for violation of procedural requirements.
Former subdivision (e) is renumbered (f) and is divided into two parts, one applicable to motion efilings in both the Supreme and superior court and the other applicable only to superior court efiling. The requirements with respect to motions seeking multiple forms of relief are applicable in both the Supreme Court and the superior court. The terminology is explained in the original Reporter's Notes to 2020 V.R.E.F. 5(f)(1) & (2). The requirements enable the efiler to choose a proper description of the filing in the efiling system, supplementing it if necessary with an additional description of what is being filed. Note that V.R.A.P. 27(d)(2), as amended simultaneously with this rule, imposes the same requirements for motions seeking separate forms of relief in the Supreme Court, irrespective of whether filed electronically or on paper. In both the superior courts and Supreme Court efilers must separate responses from new motions. Also V.R.A.P. 27 and 32(g) impose additional content and formatting requirements for motions filed in the Supreme Court.
Other motion filing requirements related to supporting material in former subdivision (f), now (g), remain applicable only in the superior court. Motion practice in the Supreme Court is typically less complex than in the superior court, making it unnecessary to apply the additional requirements in the Supreme Court.
Third, the requirement in former subdivision (g), now (h), for separation of criminal history information that is efiled in a criminal case is made applicable only in the superior court. As the original Reporter's Notes to Rule 5(g) explain, the requirement is a placeholder for differential treatment of criminal history information with respect to public access. Since the separation, and public access classification, occur in the superior court, it is already part of the record if the case reaches the Supreme Court.
Reporter's Note-2021 Emergency Amendment
Under the prior language of Rule 5, all electronic filings were reviewed prior to entry into the Judiciary's electronic case management system in accordance with the rule's requirements and Rule 7 of the Vermont Rules for Public Access to Court Records. Rule 5(d) is amended following entry of the decision and order of the U.S. District Court for the District of Vermont in Courthouse News Service, et. al. v. Patricia Gabel, et. al., Case No. 2:21-cv-00132 on November 19, 2021. The amendments comport with new procedures for the processing of the initial civil complaint, essentially providing for public access to the same, prior to clerk review and acceptance pursuant to Rule 5(d). The amendments do not alter an electronic filer's obligations under Rule 5(b), including compliance with Rule 5(b)(5) and (6). The amendments also do not alter the process of clerk review of new civil complaint filings otherwise prescribed by Rule 5(d).
Beginning on Friday, December 10, 2021, initial civil complaints submitted using the Odyssey File and Serve code "initial filing" were automatically entered in the Judiciary's electronic case management system without a prior staff review and acceptance. Previously, all electronic filings, including initial complaints and associated documents in such cases, were reviewed by staff before being entered into the electronic case management system. Some initial civil complaints are excepted from the automatic entry, including those in small claims actions, stalking/sexual assault actions, and those within the original jurisdiction of the Supreme Court, or within the jurisdiction of criminal division, family division, environmental division, probate division, or the judicial bureau.
Once initial filings are automatically entered into the case management system, documents and information designated by the electronic filer as public will be viewable to the public on courthouse public access terminals and on the Public Portal website for users with elevated access roles.
Documents submitted under other filing codes in the same envelope or in other envelopes will continue to be reviewed and manually accepted by staff prior to being entered into the case management system.
Pursuant to Rules 7(a)(3) and (4) of the Vermont Rules for Public Access to Court Records, court staff will review all initial complaints after they are entered into the system for the presence of nonpublic information that should not be publicly viewable. As with all cases under the present rules in which this screening reveals that nonpublic documents or information are part of the initial filing, court staff will take corrective or remedial actions authorized by Rules 7(a)(3) and (4) to protect such information from public view and will send notice to the efiler along with a specification of what corrective actions are needed to fix defects in the filing.
Note that Rule 6 is not amended so procedures for review of complaints filed non-electronically remain the same as they have been.