Vt. R. Elec. Filing. 9
Reporter's Notes-2020
Rule 9 addresses signatures on two types of documents, those created by or on behalf of the filer for the litigation-labeled "procedural documents" in the 2010 version of the rule, and those documents that are evidence with respect to issues in the
litigation-called documents "relevant to the merits" in the 2010 version of the rule. Rule 9 generally follows the organization and content of Rule 7 of the 2010 Vermont Rules for Electronic Filing.
This rule first addresses signatures on litigation documents created by the filer. The rules of procedure governing each of the divisions of the superior court require all, or virtually all, documents created by the filer to be signed by the filer. See V.R.C.P. 11(a) ("Every pleading, written motion, and other document that requires a signature shall be signed by at least one attorney of record in the attorney's individual name, or if a party is not represented by an attorney, shall be signed by the party") (governs civil, family, and environmental proceedings); V.R.Cr.P. 7(b) (the indictment or information "shall be signed by the prosecuting officer on his oath of office"), V.R.Cr.P. 49(d) ("Every written motion, written notice or similar paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's original name, whose address shall be stated. A defendant who is not represented by an attorney shall sign the motion, notice or similar paper and state his address"); V.R.P.P. 11(a) ("The petition shall be signed by each petitioner. Every other pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party.").
In general practice most documents prepared for the litigation are signed. Typically, paper filings have been accompanied by a signed transmittal letter addressed to the court clerk. Such a letter is unnecessary for electronic filings that are filed into statewide electronic casefiles. Attachments to a pleading or motion are not required to be signed.
The signing requirements are not changed by this rule either for electronic or nonelectronic signing. The method for signing for electronic filing is simplified. The filing alone constitutes the filer's signature for all purposes. Multiple options of displaying a signature are authorized by Rule 9(a)(2).
Litigation documents of the type described above may be signed by one or more parties or their attorneys. In such a case, Rule 9(b)(1) requires that the document contain a display of each signature as provided in Rule 9(a)(2) or (3). The filing of the document is the equivalent of the filer's signature and additionally is a representation of the filer that parties and attorneys have consented to their signature as displayed. Under Rule 9(b)(3), the filer must retain the original or an electronic copy of the filing for the duration of the litigation or a period of two years, whichever is longer, in case a dispute arises over whether the signature of a nonfiler was authorized.
Where a litigation document is filed nonelectronically, a signature that complies with the applicable rule of procedure is required under Rule 9(a)(3).
Signatures for the second type of document, that is documents that are evidence with respect to the merits of the litigation, are addressed in Rule 9(a)(4). The electronic filer must scan the document, including the signature or signatures, and file a PDF version of the document. The nonelectronic filer can file the original or a legible copy, unless a rule or provision of law dictates otherwise.
The procedure for filing a document signed under oath is provided in Rule 9(c). There are two methods for efiling. An efiler may follow the procedure set out in 4 V.S.A. § 27b that states the efiler may file "the document with the following language inserted above the signature and date: 'I declare that the above statement is true and accurate to the best of my knowledge and belief. I understand that if the above statement is false, I will be subject to the penalty of perjury.' " 4 V.S.A. § 27b(a). Alternatively, an efiler may efile a copy and retain the original or electronic copy of the filing for the duration of the litigation or a period of two years, whichever is longer, in case a dispute arises.
A nonelectronic filer must have the original document signed and notarized but is not required to submit the original for filing. The filer may either bring the document to any court location for court staff to scan into electronic form or make a photocopy of the original and send it to the court for filing, such as by mailing. If the original is not filed, the nonelectronic filer must retain the document in the manner and for the duration specified in subparagraph (c)(1)(B) herein. Caution should be used in nonelectronic filing of the original of any signed and notarized document because under Rule 12(b), the court is not required to maintain a nonelectronically filed paper document after it has been converted to electronic form. This may not be of concern for paper documents routinely submitted in proceedings on court forms such as applications to proceed in forma pauperis, or for assignment of counsel, or affidavits of income and assets in the family division. However, this may present particular concerns as to preservation of an original signed and notarized document that is of use and value outside of a case in which it may be filed. See Reporters Notes to Rule 12(b).
Subdivision (d) continues Rule 7(d) of the 2010 Vermont Rules for Electronic Filing with minor wording changes. The system for judicial and court personnel electronic signatures is in place and has worked since its adoption.