Rule 43.1 Remote and Hybrid Proceedings with Participation or Testimony by Video or Audio Conference

(a) General Provisions.

(1) All proceedings will be scheduled for in-person participation by parties, counsel, witnesses and other necessary participants unless otherwise ordered pursuant to this rule.

(2) Subject to the requirements of this rule, in any evidentiary or nonevidentiary proceeding the court may permit or require participation by some or all of the parties, counsel, or other necessary participants, or testimony by a witness, using contemporaneous video or audio conference transmission from one or more different remote locations.

(b) Definitions. In this rule:

(1) “Audio conference” means participation or testimony by interactive audio-only technology, including telephone, that permits two or more individuals or groups to communicate orally with each other contemporaneously and meets the technical requirements established pursuant to subdivision ( l ).

(2) “Evidentiary” proceeding means one in which live oral testimony is taken. All other proceedings are nonevidentiary.

(3) “Hybrid” proceeding means one in which participants participate: in person. or by video or audio conference.

(4) “Remote” proceeding means one in which all participants participate by audio or video conference.

(5) “Video conference” means participation or testimony by the use of an interactive technology that sends and receives video, voice/audio, and data signals so that two or more individuals or groups can communicate with each other contemporaneously using cameras, audio microphones, audio speakers, and computer monitors, and similar technology that meets the technical requirements established pursuant to subdivision ( l ).

(c) Remote or Hybrid Nonevidentiary Proceedings.

(1) On the Court’s Own Initiative.

(A) Standing Order. A judge assigned to a particular unit or division of the superior court has discretion to order that nonevidentiary proceedings of a particular type be scheduled as remote or hybrid proceedings. The court may make exceptions to a standing order.

(B) Order in Particular Case. In its discretion, the court in a particular case may order that:

(i) a nonevidentiary proceeding be a remote or hybrid proceeding; or

(ii) some or all parties, counsel, or other persons be required or permitted to participate in a nonevidentiary proceeding in person or by video or audio conference.

(2) By Motion or Stipulation of the Parties.

(A) A party may move for, or the parties may stipulate to, a remote or hybrid nonevidentiary proceeding.

(B) A party may move or the parties may stipulate that a nonevidentiary proceeding be hybrid or some or all parties, counsel, or other persons be required to participate in person.

(C) A motion filed pursuant to this paragraph must be served on other parties and filed reasonably in advance of the proceeding. The court may specify a date for other parties to respond to the motion other than the date prescribed in Rule 7(b). A stipulation under this paragraph must be filed reasonably in advance of the proceeding.

(D) In its discretion, the court may grant or deny the motion or stipulation in whole or in part.

(d) Remote or Hybrid Evidentiary Proceedings.

(1) On the Court’s Own Initiative.

(A) Standing Order. For good cause based on a consideration of any relevant factors in subdivision (h), a judge assigned to a particular unit or division of the superior court may order that evidentiary proceedings of a particular type be scheduled as remote or hybrid proceedings. The court retains discretion to permit or require in-person participation and to alter the terms of a standing order in a particular case.

(B) Order in Particular Case. For good cause based on a consideration of the relevant factors in subdivision (h), the court in a particular case may order that:

(i) an evidentiary proceeding be a remote or hybrid proceeding; or

(ii) particular parties, counsel, witnesses, or other persons be required to participate in an evidentiary proceeding by video or audio conference.

(2) By Motion or Stipulation of the Parties.

(A) A party may move for, or the parties may stipulate to, a remote or hybrid proceeding.

(B) A party may move, or the parties may stipulate, that some or all parties, counsel, witnesses, or other persons be required or permitted to participate in a particular manner: in person, or by video or audio conference.

(C) A motion under this paragraph must be served on the other parties and filed reasonably in advance of the proceeding. The motion must state whether the other parties consent to the motion. The court may specify a date for responding to the motion other than the date prescribed in Rule 7(b). A stipulation under this paragraph must be filed reasonably in advance of the proceeding.

(D) [Omitted]

(E) In ruling on a motion under this subdivision, the court must consider the relevant factors in subdivision (h) to determine whether good cause exists to have a remote or hybrid proceeding or permit or require participation for some or all participants by video or audio conference.

(e) Presiding Remotely. A judge may preside remotely for a remote or hybrid proceeding without notice to the parties. When a proceeding is scheduled for in-person participation or a motion for an in-person proceeding is granted, a judge may preside from a remote location but must provide the parties with notice reasonably in advance of the hearing unless there are grounds for an exception under (g).

(f) Notice to Parties. All hearing notices must:

(1) specify whether the proceeding is in person, remote, or hybrid; and

(2) provide the process for requesting an alternative means of participation.

(g) Exception. The court may make exceptions to the notice and time requirements of this rule upon a showing by a party or a finding by the court of unanticipated and unintended events, or other good cause, that would prevent timely notice.

(h) Factors. In determining whether to have a remote or hybrid proceeding or to permit or require participation by audio or video conference, the following factors apply:

(1) Whether the locations involved in the proceeding have technological capabilities that satisfy the standards adopted pursuant to subdivision ( l ), and whether any in-person location has adequate air flow;

(2) The health, safety, and convenience of the parties, jurors, court personnel, counsel, and proposed witnesses and the health of persons who may be dependent on or reside with these persons; the importance, complexity, and nature of the proceeding or testimony; the expected duration of the proceeding; the cost of producing a witness in person in relation to the importance of the offered testimony; the time and expense associated with travel; and the expected duration of the proceeding or a witness’s testimony;

(3) Whether the moving party attempted to procure the physical presence of a witness;

(4) Whether a witness or other participant is incarcerated or otherwise institutionalized;

(5) Whether satisfactory provision can be made for confidential communications between lawyers and their clients or witnesses;

(6) Whether there is assurance satisfactory to the court of the identity of any witness appearing by video or audio conference and whether the oath can be administered to that witness in a manner consistent with the laws of Vermont;

(7) Whether the procedure would allow for full and effective examination and cross-examination of witnesses by all parties and the court, including access to any documentary or other tangible evidence necessary to the examination or cross-examination of any witness;

(8) Whether any undue prejudice would result to a party or witness;

(9) Whether the use of video or audio conferencing technology diminishes or detracts from the dignity, solemnity, and formality of the proceeding or undermines its integrity, fairness, or effectiveness;

(10) Whether conditions may be imposed to ensure the fairness of the proceeding and the reliability of the evidence, and to protect public health;

(11) Whether the proceeding involves a matter of public interest and whether public access can be adequately provided either in-person or remotely;

(12) With regard to audio conferences, whether participation or testimony by video is not feasible or cannot be obtained without imposing substantial cost or burden; and

(13) In remote or hybrid proceedings where at least one person is participating by audio conference, whether the audio connections and equipment employed are adequate to enable all participants to hear the proceedings and to speak at all appropriate times during the hearing; and whether any statements made by audio on the record will be recorded as part of the record of the court proceeding; and

(14) Any other factors that the court may determine to be relevant.

(i) Conduct of Proceedings. In any remote or hybrid proceeding, the court may:

(1) impose conditions to ensure the fairness of the proceeding and the reliability of the evidence, and to protect public health;

(2) suspend or modify the proceeding, or reschedule the matter if the court finds that the personal appearance of some or all participants is required, some other change in the manner of proceeding is necessary, and for evidentiary proceedings, that there is no longer good cause to allow participation by video or audio conference based on the factors in subdivision (h);

(3) apportion the expense of any video or audio conference among the parties upon final resolution of the case.

(j) Jury Selection. Jury selection is governed by the provisions of this rule applicable to evidentiary proceedings.

(k) Stalking Proceedings. All proceedings under 12 V.S.A. §§ 5131-5138 will be hybrid unless upon a party’s request or on the court’s own initiative, the court orders participation by a particular method: in person or by video or audio conference. Requests by a party need not comply with Vermont Rule of Civil Procedure 7 but must be served pursuant to Vermont Rule of Civil Procedure 5.

(l) Technical Standards. The Supreme Court by Administrative Order will establish technical standards that must be applied in all proceedings under this rule.