University of Denver

Vermont Adoption of 2015 Federal Rule Amendments

The Vermont Supreme Court amended its Rules of Civil Procedure in July 2017 to incorporate or adapt the 2015 Federal Rule Amendments. On March 24, 2017, the Vermont Supreme Court Advisory Committee voted unanimously to recommend that the amendments to the Rules of Civil Procedure be revised to conform discovery and other rules to the recent amendments. The proposed amendments were sent out for comment and the Legislative Committee on Judicial Rules considered the amendments in June 2017. They were adopted by court order on July 14, 2017. The rule changes went into effect September 18, 2017.

Notably, the Vermont Supreme Court adopted the proportionality language of the federal rule amendments in Rule 26(b)(1) verbatim, which significantly redefines the scope of discovery under the former Vermont rule. Discovery must be relevant to any party’s claim or defense and proportional to the needs of the case, taking into account a series of five factors. As with the federal rule changes, the “reasonably calculated” language was removed. Next, the amendments authorize the allocation of discovery expenses and add language that requires objections to be stated with specificity. According to the Reporter’s notes, the Vermont amendments do not adopt the provision in the federal rules that allows a party to produce copies of documents or electronically stored information in place of inspection because “it permits the party to avoid actual inspection in a situation where actual inspection might be important.”

Other significant amendments include an amendment to Rule 1 that requires the rules be employed by both the court and the parties to secure the “just, speedy, and inexpensive determination of every action.” Vermont’s Rule 37(f) was revised to clarify the consequences of a party failing to preserve electronically stored information, but the rule does not adopt the language from Federal Rule of Civil Procedure 37(e).

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