Tag Archives: CRCP 26

Short Summary of notable changes to the Rules of Civil Procedure effective July 1, 2015

Major changes to the Colorado Rules of Civil Procedure have been in the works for the last few years.  The Civil Access Pilot Project tested many rule changes and the Court took comments and opinions from the public and attorneys earlier this year.  Those changes have now become a reality for civil litigators.  HERE IS A LINK TO THE REDLINE OF THE RULE CHANGES.

The Colorado Rules of Civil Procedure that have been amended are as follows: Rules 1, 12, 16, 16.1, 26, 30, 31, 33, 34, 37, 54, and 121 §1-22, and the Proposed Case Management Order.

If you are familiar with the CAPP Rules, many of these changes will come as no surprise. The new rules are not duplicative of the CAPP rules, however.

Also, the new “Proposed Case Management Order” is not the same as the old “ICMC Joint Reports” that were filed before.  In person or telephonic attendance at an initial case management conference is required unless dispensed of by the court upon the joint request of the attorneys.

CHANGES AND OFFICIAL COMMENTS WORTH NOTING INCLUDE:

Comments to CRCP 1:

“[1] The 2015 amendments are the next step in a wave of reform literally sweeping the nation. This reform movement aims to create a significant change in the existing culture of pretrial discovery with the goal of emphasizing and enforcing Rule 1’s mandate that discovery be administered to make litigation just, speedy, and inexpensive. One of the primary movers of this reform effort is a realization that the cost and delays of the existing litigation process is denying meaningful access to the judicial system for many people.

[2] The changes here are based on identical wording changes proposed for the Federal Rules of Civil Procedure. They are designed to place still greater emphasis on the concept that litigation is to be treated at all times, by all parties and the courts, to make it just, speedy, and inexpensive, and, thereby, noticeably to increase citizens’ access to justice.”

CRCP 16(11) & (12) – CASE MANAGEMENT:

(11) Discovery Limits and Schedule. Unless otherwise ordered by the court, discovery shall be limited to that allowed by C.R.C.P. 26(b)(2). Discovery may commence as provided in C.R.C.P. 26(d) upon service of the Case Management Order. The deadline for completion of all discovery, including discovery responses, shall be not later than 49 days before the trial date. The proposed order shall state any modifications to the amounts of discovery permitted in C.R.C.P. 26(b)(2), including limitations of awardable costs, and the justification for such modifications consistent with the proportionality factors in C.R.C.P. 26(b)(1).

(12) Subjects for Expert Testimony. The proposed order shall identify the subject areas about which the parties anticipate offering expert testimony; whether that testimony would be from an expert defined in C.R.C.P. 26(a)(2)(B)(I) or in 26(a)(2)(B)(II); and, if more than one expert as defined in C.R.C.P. 26(a)(2)(B)(I) per subject per side is anticipated, the proposed order shall set forth good cause for such additional expert or experts consistent with the proportionality factors in C.R.C.P. 26(b)(1) and considering any differences among the positions of multiple parties on the same side as to experts.

CRCP 26(b)(4)(D) – DISCLOSURES (limitations):

(D) Rule 26(b)(3) protects from disclosure and discovery drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded, and protects communications between the party’s attorney and any witness disclosed under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(I) relate to the compensation for the expert’s study, preparation, or testimony;

(II) identify facts or data that the party’s attorney provided and which the expert considered in forming the opinions to be expressed; or

(III) identify the assumptions that the party’s attorney provided and that the expert relied on in forming opinions to be expressed.

COMMENT 20 TO CRCP 26 also notes the following about expert disclosures:

“The 2015 amendment also requires that, if a deposition reveals additional opinions, previous expert disclosures must be supplemented before trial if the witness is to be allowed to express these new opinions at trial. Rule 26(e). This change addresses, and prohibits, the fairly frequent and abusive practice of lawyers simply saying that the expert report is supplemented by the “deposition.” However, even with the required supplementation, the trial court is not required to allow the new opinions in evidence.”

CRCP 33(b)(1) – INTERROGATORIES

(1) An objection must state with specificity the grounds for objection to the Interrogatory and must also state whether any responsive information is being withheld on the basis of that objection. A timely objection to an Interrogatory stays the obligation to answer those portions of the Interrogatory objected to until the court resolves the objection. No separate motion for protective order pursuant to C.R.C.P. 26(c) is required.

CRCP 34 – REQUESTS FOR PRODUCTION

COMMENT 3:

“[3] Rule 34 is changed to adopt similar revisions as those proposed to Fed. R. Civ. P. 34, which are designed to make responses to requests for documents more meaningful and transparent. The first amendment is to avoid the practice of repeating numerous boilerplate objections to each request which do not identify specifically what is objectionable about each specific request. The second amendment is to allow production of documents in place of permitting inspection but to require that the production be scheduled to occur when the response to the document request is due, or some other specific and reasonable date. The third amendment is to require that when an objection to a document request is made, the response must also state whether, in fact, any responsive materials are being withheld due to that objection. The fourth and final amendment is simply to clarify that a written objection to production under this Rule is adequate to stop production without also filing a motion for a protective order.”

CRCP 37 – DISCOVERY SANCTIONS

COMMENT 3:

“[3] The threat and, when required, application, of sanctions is necessary to convince litigants of the importance of full disclosure. Because the 2015 amendments also require more complete disclosures, Rule 37(a)(4) now authorizes, for motions to compel disclosures or discovery, imposition of sanctions against the losing party unless its actions “were substantially justified or that other circumstances make an award of expenses manifestly unjust.” This change is intended to make it easier for judges to impose sanctions.”

CRCP 121 1-22 COSTS AND ATTORNEY FEES

COSTS. A party claiming costs shall file a Bill of Costs within 21 days of the entry of order or judgment, or within such greater time as the court may allow. The Bill of Costs shall itemize and provide a total of costs being claimed. Taxing and determination of costs shall be in accordance with C.R.C.P. 54(d) and Practice Standard § 1-15. Any party that may be affected by the Bill of Costs may request a hearing within the time permitted to file a reply in support of the Bill of Costs. Any request shall identify those issues that the party believes should be addressed at the hearing. When required to do so by law, the court shall grant a party’s timely request for a hearing. In other cases where a party has made a timely request for a hearing, the court shall hold a hearing if it determines in its discretion that a hearing would materially assist the court in ruling on the motion.

 

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Proposed revisions to CRCP – Public Hearing April 30, 2015

[A message from the CBA Chair of the Litigation Section. A link to a Redline version of the proposed changes is provided below]

Dear Colleagues:

There are, pending before the Colorado Supreme Court, proposed changes to the Colorado Rules of Civil Procedure. Significant changes to Rules 16, 26, 34, 37 and 54 are proposed which raise lots of questions. Do you understand the meaning of “proportionality” as defined in proposed new Rule 26(b)(1)? Can you depose an expert in 3 hours as limited by proposed new Rule 26(b)(4)(A)? Do you agree with the limitations on discovery relative to an expert’s opinion as provided in proposed Rule 26(b)(4)(D)?

The public hearing concerning the proposed rule changes which will be held on April 30, 2015. The Supreme Court is presently seeking public comment about the proposed rules in advance of that hearing. April 17, 2015 is deadline for submission of written public comments.

The Litigation Section Council is working toward formulating comments on behalf of the Litigation Section membership to be submitted to the Supreme Court. If you have comments concerning the proposed rule changes that you would like to have considered by the Council, please submit your comments to Greg Martin the Section’s CBA staff liaison at gmartin@cobar.org no later than March 5, 2015.

A redlined version of the proposed revisions can be found as a link in the Winter, 2015 CBA Litigation Section Newsletter on the CBA website, and are attached to this e-mail. Thank you.

Peter R. Black
Chairperson, CBA Litigation Section Council

2015 proposed rule changes CRCP – redline

1 Comment

Filed under Administrative, Proceedure

Mountain-Plains Investment Corporation; John Robert Fetters, Jr.; Joann Dransfeldt Fetters; A. Sue Fetters; and John R. Fetters III, v. Parker Jordan Metropolitan District, 2013COA123 (August 15, 2013)

“Sunlight is the most powerful of all disinfectants.” Justice Brandeis. Plaintiffs sought access to emails between a quasi-governmental agency (District), its management company, and its consultants on a water project. Plaintiffs sued for violations of the Colorado Open Records Act (CORA), because the District claimed it did not possess emails sent only between its consultants, and sought $16k for production of the records it did have. CORA defines public record as one “made, maintained, or kept by the state.” The court held that, while emails to or from the District or its management company are public record, those only between its consultants were not made, maintained, or kept by the District. Further, the court found the fee structure of $25/hour for collection of records and segregation and logging of privileged materials reasonable under CORA.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1034-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9060&courtid=1

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Filed under Administrative, Government

DCP Midstream, LP, v. Anadarko Petroleum Corp.; Kerr-McGee Oil & Gas Onshore LP; and Kerr-McGee Gathering LLC, 2013 CO 36 (June 24, 2013)

Do courts manage cases “to secure the just, speedy, and inexpensive determination of every action?” (CRCP 1). They should. Here, Plaintiff sought information about thousands of gas wells and contracts, though it sued on far fewer. The trial court permitted broad discovery. In a wide-reaching opinion, the Court reversed and ordered all trial courts to actively manage discovery when objections to scope arise under CRCP 26(b). Those objections should be explicitly addressed in the context of the cost-benefit, proportionality, and other “good cause” factors in CRC 26(b)(2)(F). The Court would not distinguish between discovery of “claims and defenses” and “subject matter,” though the concurrence would have. The Court also reiterated that the attorney-client privilege applies to a Title Opinion if it is a confidential communication made in the course of obtaining advice.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA307.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9000&courtid=2

1 Comment

Filed under Contracts, Evidence, Interlocutory Review

In Re: Gateway Logistics, Inc. and Gateway Freight Solutions, Inc. v. Christopher Smay, Republic Cargo, and Republic Freight, 2013CO25 (April 15, 2013)

“If you want to keep a secret, you must also hide it from yourself.” – George Orwell. In this interlocutory appeal, the Court reviewed an order by the trial court to allow the plaintiffs to inspect personal and business computers, smartphones, other electronic devices belonging to the lead Defendant (and his wife, who is not a party to the case), and approximately three years of defendants’ telephone records. The Court, making the rule absolute (reversing the trial court and remanding the case) held: 1) the assertion of privacy requires a trial court to apply the balancing test in In Re District Court and failing to do so is an abuse of discretion; 2) people have a privacy interest in their electronically stored information and their telephone records; and 3) a nonparty’s status as such must be considered. Here, the trial court failed to apply the balancing test and was ordered to do so.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA287.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8907&courtid=2

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Filed under Evidence, Interlocutory Review