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Advisory Committee on Rules of Evidence Meeting May 12, 2023

VERMONT ADVISORY COMMITTEE ON THE RULES OF EVIDENCE
AGENDA

Friday, May 12, 2023
2:00 PM via TEAMS

1. Call to Order
2. Minutes from February 2023 Meeting
3. Committee Membership (Corbett)
Recruiting new members to succeed John Boylan and Dickson Corbett as committee members.
4. Old Business
a. Lawyer Referral Privilege (Marsh and Paolini). In 2017, the committee considered a proposed evidentiary privilege for communications with non-attorneys employed by lawyer-referral services. The request for a privilege arose out of concern that individuals making intakes through referral services are not lawyers and may not be considered a representative of the lawyer as defined in Rule 502, and thus the communications made during that initial intake may be unprotected. The privilege expansion was recommended for consideration by an American Bar Association resolution.
Teri Corsones appeared before the committee in 2017 and requested adoption of the privilege. As of then, the VBA had not encountered any problems, but similar organizations in other states had faced subpoenas from opposing parties seeking out this information. An amendment to Rule 502 was considered in 2017, and the committee resolved to take the issue under consideration.
In September 2017, a draft rule of the proposed privilege was considered by the committee without agreement as to whether an expansion of the attorney-client privilege or a separate privilege was warranted. Additional concerns were raised regarding whether the scope of the privilege was limited to organizations that provide a public service or included commercial operations. Additional testimony was requested by the committee.
Following the pandemic hiatus, the committee requested an update about the continuing need for the privilege. Bob Paolini and Pamela Marsh will present about the need for the privilege and about proposed language to address the identified problem.
b. Restyled Rules (Rushlow). At our last meeting, we approved submission of amendments to the rules to eliminate the use of gendered pronouns and assumptions throughout the rules. Next step is for drafting of the reporter’s notes and submission to the Vermont Supreme Court as a proposed rule.
c. Rule 615 (Corbett). A proposed amendment to the federal rules would clarify that trial courts have the authority to issue orders that extend beyond the courtroom, including orders having the effect of prohibiting sequestered witnesses from obtaining access to trial testimony. Proposed next step is for a subcommittee to consider further this proposed amendment for adoption in Vermont, as well as whether further amendments may be needed to clarify the authority of judges conducting remote evidentiary hearings.
d. Rule 804a (Corbett). A public comment has been raised about whether Rule 804a should be amended to reflect the existence of the family division (the rule was written prior to the creation of the family division, and references in the rule to civil proceedings have reportedly been interpreted as excluding the family division). The issue was recently addressed by a Vermont Supreme Court decision; further clarification may or may not be necessary.
5. New Business
None
6. Public Comment
a. Cross-References (Corbett). A public comment was received in which the commenter noted two concerns about cross-references contained in the rules, as follows:
The first one is with V.R.E. 404(a)(2). The reporter’s notes mention that the rule was amended in 2011 to specifically the effect of Vermont’s victim shield law. However, the rule, at least as I see it on Westlaw, cites 12 V.S.A. § 3255 (on the attachment of personal property in civil actions) instead of 13 V.S.A. § 3255 (the actual victim shield law).
Additionally, V.R.E. 503(d)(7) contains an exception from the patient’s privilege for proceedings under Chapter 55 of Title 33. However, Chapter 55 of Title 33 was repealed in its entirety effective January 1, 2009, when its provisions were rewritten and reorganized into other chapters of Title 33. I see that the rule was amended in 2016 simultaneously to the reorganization of the material from former V.R.F.P. 4 into current V.R.F.P 4.0-4.3, so it seems that the reference to Chapter 55 should have been amended.
7. Adjournment
IF YOU WISH TO ATTEND THE MEETING, PLEASE EMAIL
dickson.corbett@vermont.gov
FOR A VIDEOCONFERENCE LINK

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