The Vermont motion to compel: any Superior Judge will hear it — but only one of them

Vermont's Rule 37 opens with a sentence no other state's version contains, and it answers a question most rules do not raise: which judge.

Any judge — once

Rule 37(a)(1) begins:

An application for an order may be made to any Superior Judge. When such an application has been made to one judge and has been acted upon by that judge, it shall not be presented to any other judge except by direction of the first judge because of that judge's necessary absence.

Two rules in two sentences, and they belong together.

Access is wide. The motion does not have to wait for the judge assigned to the case. Any Superior Judge may hear it, which in a small judiciary with a rotating bench keeps discovery moving.

And then it closes. Once a judge has acted upon the application, it goes to no one else. The only exception is narrow and is not yours to invoke: "by direction of the first judge because of that judge's necessary absence." A litigant who dislikes the ruling cannot re-present the dispute in a different county, and the rule says so in terms.

The practical consequence is that the first application matters more in Vermont than elsewhere. There is no second bite dressed up as a renewed motion before a different judge.

Discovery outside Vermont

The same paragraph handles evidence that is somewhere else:

On matters relating to a deposition being taken or production of documents or things or entry on land being sought outside the state, an application for an order may also be made to any court having general civil jurisdiction in the place where the deposition is being taken or the production or entry is sought.

Note the breadth. This is not confined to depositions — it reaches production of documents or things and entry on land. And "may also" preserves the Vermont option; the out-of-state court is an addition, not a substitute.

No certification requirement — and what follows from that

Vermont's Rule 37 contains no conferral certificate. Nothing in it requires you to confer before filing, and nothing requires you to say that you did. That distinguishes it from North Dakota, Wyoming and most federal-model states.

Two qualifications matter before anyone treats that as a license to file.

Rule 26(c) does require one for a protective order — a motion must be "accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action." The obligation exists in Vermont; it simply attaches to the other side of the dispute.

And the fee provision does the work. Which brings us to the part of this rule that should govern how you decide to file at all.

Fees, in both directions, without an escape for the movant

Rule 37(a)(4) is stricter than the federal version, and the difference is easy to miss because the sentences look familiar:

If the motion is granted, the judge shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the judge finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

And the reverse:

If the motion is denied, the judge shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the judge finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

"Shall" both ways, with only two exceptions on each side. The federal rule and its restyled descendants carry a third — no award where the movant filed before attempting in good faith to obtain the discovery. Vermont has no such clause, because it has no conferral requirement for the exception to enforce.

So the incentive is direct rather than procedural. There is no certificate to file and no box to tick; the discipline comes from the fact that a motion the judge thinks should never have been made costs you the other side's fees.

A split result is apportioned: where the motion "is granted in part and denied in part, the judge may apportion" the expenses.

The clocks

Forty-two days rather than the more common forty-five. It is a small difference and exactly the kind that produces a premature motion.

Losing the motion can cost you more than the motion

The last sentence of Rule 37(a)(2) gives the judge a power that does not appear in every state's rule:

If the judge denies the motion in whole or in part, the judge may make such protective order as the judge would have been empowered to make on a motion made pursuant to Rule 26 (c).

The opposing party does not have to have asked. A denied motion to compel can produce, in the same order, a protective order restricting the discovery you were pursuing.

Once an order is disobeyed

Rule 37(b)(1) is unusually wide, because it tracks the same "any Superior Judge" structure:

If a deponent fails to be sworn or to answer a question after being directed to do so by any Superior Judge or, when the deposition is being taken outside the state, by the court in the place in which the deposition is being taken, or, if a person, not a party, fails to permit production of documents or things or entry upon land under Rule 34 after being directed to do so by any Superior Judge or, when production or entry is being sought outside the state, by the court in the place where the documents, things, or land are located, the failure may be considered a contempt of court.

It reaches nonparties expressly, and it covers refusals to permit production and entry as well as refusals to answer.

Rule 37(b)(2) supplies the sanctions against a party who disobeys an order: facts taken as established, preclusion of claims or defenses, striking pleadings, staying proceedings, dismissal, default judgment, and contempt for anything but a physical or mental examination order. Expenses follow unless the failure was substantially justified.

Supplementation, and the jury

Rule 37(c)(1) attaches a consequence to the duty to supplement:

A party that without substantial justification fails to supplement responses as required by Rule 26 (e) is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.

Additional sanctions are available, and the list includes one worth asking for where a party has held material back and then relied on it: the court's remedies "may include informing the jury of the failure to make the disclosure."

Planning, and lost evidence

Rule 37(e) prices a refusal to plan: a party or attorney who "fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26 (f)" may be ordered to pay the resulting expenses and fees.

Rule 37(f) is Vermont's spoliation provision, and it is deliberately narrower than the federal one:

If electronically stored or other evidence that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from loss of the evidence, may order measures no greater than necessary to cure the prejudice.

Two departures from the federal model. It covers "electronically stored or other evidence" — paper and physical objects included — where the federal rule is confined to ESI. And it stops at curative measures. There is no second tier authorising an adverse inference or dismissal on a finding of intent to deprive. In Vermont the remedy for spoliation under this rule is to fix the prejudice, not to punish.

A short checklist

1. Confer anyway. No rule requires it, but a motion that should not have been brought costs you fees.
2. Choose your judge once. Any Superior Judge may hear the application; none of the others will hear it again.
3. Use the out-of-state route for depositions, production and entry beyond Vermont — it is available in addition, not instead.
4. Count 42 days, not 45, for a recently served defendant.
5. Expect no third exception to the fee shift. There is no "you did not confer" escape here.
6. Weigh the downside honestly — a denied motion draws a mandatory award and may draw a protective order with it.
7. Ask for contempt against a nonparty under Rule 37(b)(1) where production or entry was refused after an order.
8. Use Rule 37(c)(1) where late supplementation is followed by reliance on the material.
9. Read Rule 37(f) before pleading spoliation — the remedy is curative, and it covers more than ESI.
10. Price the motion before filing it. In Vermont, both sides are exposed on every one.

Where these rules live

• V.R.C.P. 26 — General Provisions Governing Discovery
• V.R.C.P. 33 — Interrogatories to Parties
• V.R.C.P. 34 — Production of Documents and Things
• V.R.C.P. 36 — Requests for Admission
• V.R.C.P. 37 — Failure to Make Discovery: Sanctions
• Responding to a Vermont complaint
• Vermont summary judgment

This page explains what the rules say. It isn't legal advice, and an individual court's scheduling order may set discovery deadlines this page does not cover.