Supreme Court of Vermont Office of State Court Administrator

PATRICIA GABEL, ESQ., State Court Administrator GREGG MOUSLEY, Chief, Finance & Administration [email protected] [email protected] Mailing Address: JEFFERY LOEWER, Chief Information Officer Office of Court Administrator [email protected] 109 State Street TARI SCOTT, Chief, Trial Court Operations Montpelier, VT 05609-0701 [email protected] Telephone: (802) 828-3278 SCOTT GRIFFITH, Chief, Planning and Court Services FAX: (802) 828-3457 [email protected] www.vermontjudiciary.org

TO: Rep. Laura Sibilia, Chair, Joint Information Technology Oversight Committee Sen. Dick Sears, Jr. Chair, Joint Legislative Justice Oversight Committee

FROM: Patricia Gabel, Esq., State Court Administrator

DATE: September 1, 2020

RE: Report Pursuant to Act 120 of 2020, Sec. A.18

Act 120 of 2020, Sec. A.18., requires the Judiciary, among others, to report to the Joint Information Technology Oversight Committee and the Joint Legislative Justice Oversight Committee not later than September 1, 2020 on the status of how software vendors that the State currently engages for the provision of services are bringing contracts and user agreements into compliance with Vermont law so as not to contain presumptively unconscionable terms per 9 V.S.A. chapter 152.

9 V.S.A. chapter 152, which was enacted in 2019, addresses terms of contracts that will be in effect after the effective date of the chapter, which is October 1, 2020.

The Judiciary has a procurement process, informed by Bulletin 3.5 of the Agency of Administration, through which we utilize the Office of the Vermont Attorney General for consultation. In addition, for contracts with software vendors, we utilize the template provided by the State’s “STANDARD CONTRACT FOR TECHNOLOGY SERVICES” to ensure uniform compliance across the branches of Vermont government whenever possible. Importantly, Act 120, Sec. A.18 references “standard- form contract to which only one of the parties to the contract is an individual.” Any contracts that the Judiciary enters with a software vendor would not be one where either party is an “individual.”

The Judiciary’s Next Generation Case Management System (NG-CMS) does utilize the services of an e-filing platform from Tyler Technologies, Inc. (Tyler) called Odyssey File and Serve (OFS). When attorneys or other potential users of OFS register on the system, they “click-thru” an “Odyssey File & Serve Usage Agreement.” In preparation for the October 1, 2020 effective date of Act 120 of 2020, Sec. A.18, the Judiciary, along with a representative from the Vermont Attorney General’s Office, have been meeting with Tyler regarding this agreement to review whether it may contain “presumptively unconscionable terms per 9 V.S.A. chapter 152.”

These meetings, in which Tyler has been a constructive participant, have identified several areas to be addressed in the agreement to ensure compliance with 9 V.S.A. chapter 152 by October 1. We received a proposed draft from Tyler on August 28 that, based on an initial review by the Attorney General’s Office, removes those provisions that might be interpreted to be presumptively unconscionable under 9 V.S.A. chapter 152.

cc. Sen. Randy Brock, Vice Chair Sen. Jane Kitchel Sen. Christopher A. Pearson Rep. Seth Chase Rep. Sen. Philip Baruth Sen. Virginia Lyons Sen. Cheryl Hooker Rep. Alice M. Emmons, Vice Chair, Joint Legislative Justice Oversight Committee Rep Rep, Rep Rep Charles Shaw Mike Ferrant Peggy Delaney Jeff Loewer, Vermont Judiciary Steve Klein, Joint Fiscal Office

9.1.2020 ∙ JUD Report Pursuant to Act 120 of 2020, Sec. A.18 2