The general life cycle of civil litigation: Complaint, Answer, Disclosures, Discovery, Trial. In this case, before the court would allow full discovery, it required the plaintiffs to provide prima facie evidence to support their toxic tort allegations of exposure, injury, and causation arising from the proximity of natural gas drilling operations near their home. Finding the plaintiffs’ evidence lacking, the court dismissed their case entirely. The court of appeals reversed holding that the modified case management order issued by the trial court was not authorized by CRCP 16. The Court agreed, “tapping the brakes,” as the dissent describes it, on active case management. The Court held that CRCP 16, in the context of Rules like 12, 37, and 56, does not authorize a court to fashion its own summary judgment-like filter and dismiss claims during the early stages of litigation.
Tag Archives: Discovery
William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2015CO26 (April 20, 2015)
In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)
Jeopardy – Answer: a “subpoena” is different from “discovery,” but an “administrative hearing or proceeding” is the same as a “civil suit.” Question – why does CRS 12-36.5-104, establishing the peer review privilege, extend to a subpoena issued in an administrative proceeding? Reviewing this question pursuant to CAR 21, the Court held that the privilege protects all the records of a professional review committee from all subpoenas and all discovery, and renders such records inadmissible in civil suits including administrative proceedings of an adjudicatory nature. In this case, a doctor was denied a Colorado medical license and appealed the denial. She sought certain Letters of Concern issued by the Medical Board. An ALJ issued a subpoena for the letters. The Board objected and then appealed via CRCP 106 and CRS 24-4-106. Because the records were protected, the Board won.
The Institute for the Advancement of the American Legal System, has released a report detailing their Preliminary Analysis of the CAPP process. From the IAALS blog, here is a partial summary of their findings:
Our initial analysis reveals that the CAPP process as a whole has succeeded in achieving many of its intended effects, including a reduced time to disposition, increased court interaction, proportional discovery and costs, and a lower level of motions practice. Much of the positive feedback relates to CAPP’s early, active, and ongoing judicial management of cases, with many calling for this to become a permanent feature of the rules. For those cases that are at least minimally contested, one of the challenges of the project relates to differences between simple and complex cases. The first part of the CAPP process (rolling and staggered deadlines for pleadings and initial disclosures) appears to work better in simple cases, while it can fall apart in complex cases. The second part of the CAPP process (everything from the joint case management report forward) appears to provide a real benefit for complex cases, while it can be too much for simple cases. This is just one nuance in the results, and the full report will provide interesting reading for those engaged in these issues—both inside and outside of Colorado.
The CAPP Rules were implemented by the Colorado Supreme Court to test whether “adopting certain rules regarding the control of the discovery process reduces the expense of civil litigation in certain business actions, and . . . the use of modified rules of Civil Procedure concerning the pleading, discovery and trial management of certain cases” would improve the civil litigation process. As noted by the IAALS:
[T]he CAPP rules were designed to bring the disputed issues to light at the earliest possible point, tailor the process proportionally to the needs of the case, provide active case management by a single judge, and move the case quickly toward trial or other appropriate resolution.
All civil litigators in Colorado should be carefully following the progress of this Pilot Project. The Colorado Supreme Court has already issued opinions requiring judges to actively intervene early in the discovery process. In DCP Midstream, LP, v. Anadarko Petroleum Corp.; Kerr-McGee Oil & Gas Onshore LP; and Kerr-McGee Gathering LLC, 2013 CO 36 (June 24, 2013) the Court noted that:
The overriding purpose of the Colorado Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action.” C.R.C.P. 1. To this end, our rules reflect a growing effort to require active judicial management of pretrial matters to reduce delay and the increased costs associated with it. “Delay devalues judgments, creates anxiety in litigants and uncertainty for lawyers, results in loss or deterioration of evidence, [and] wastes court resources.” . . . Delay also increases costs. The increased costs associated with protracted litigation may force a party into an unwarranted settlement or may deter a party from bringing a viable claim. Active judicial management is necessary to address these problems, and our rules have evolved to stress this principle.
Regardless of form, active case management in civil cases is now the rule and not the exception.
Colorado courts often look to the Federal Rules of Civil Procedure for guidance when interpreting the CRCP. The reasoning has been that Colorado’s rules are substantially similar to the Federal rules. That may be changing. As noted HERE by the Institute for the Advancement of the American Legal System, the Judicial Conference Advisory Committees on Bankruptcy and Civil Rules have proposed amendments to their respective rules and forms. Specifically, Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and Appendix of Forms.
HERE is a link to the redline copy of all the changes, including substantial changes to the Bankruptcy Rules.
Three significant changes are:
1) The scope of discovery under Rule 26. The proposed change includes this change to 26(b)(1), which would now read in its entirety as follows:
Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
2) A new procedure for early requests for documents would also be added as follows:
(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served.
(B) When Considered Served. The request is considered as served at the first Rule 26(f) conferences.
3) A completely new Rule 37(e) – Failure to Preserve Discoverable (not just electronic) Information. For example, in the event that discoverable information has not been preserved, the court may “impose any sanction listed in Rule 37(b)(2)(A) or give an adverse- inference jury instruction, but only if the court finds that the party’s actions:
(i) caused substantial prejudice in the litigation and were willful or in bad faith; or
(ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”
The proposed rule also includes a detailed list of factors to be considered in assessing a party’s conduct.
Other important changes were made to timelines, and the number of requests for admission were presumptively limited.
“All comments on these proposed amendments will be carefully considered by the rules committees, which are composed of experienced trial and appellate lawyers, judges, and scholars. Please provide any comments on the proposed amendments, whether favorable, adverse, or otherwise, as soon as possible but no later than February 15, 2014. Comments concerning the proposed amendments may be submitted electronically by following the instructions at . Hard copy submissions may be mailed to the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, Suite 7-240, Washington, D.C., 20544. All comments are made part of the official record and are available to the public.”
William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2013 COA 106 (July 3, 2013)
“Coal seam gas stinks.” – Anti-fracking poster. In this case, home-owner Plaintiffs sued four oil and gas companies claiming pollutants from drilling activities at three well sites contaminated their air, water, and land around their home. The trial court issued a modified case management order that required Plaintiffs to make a prima facie case in support of their toxic tort claims before discovery began — commonly called “Lone Pine” orders. Plaintiffs produced evidence of well water contamination and expert reports, but not evidence that the drilling caused their injuries. The trial court dismissed with prejudice. The court of appeals reversed because: 1) trial courts lack discretion under CRCP 16(c) to issue such orders; 2) the case was not complex or extraordinary enough to depart from normal procedure; and 3) existing procedures protect against meritless claims.
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.
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.
The Institute for the Advancement of the American Legal System has released its report examining CRCP 16.1. That Rule provides for a simplified pretrial procedure for actions seeking $100,000 or less from any one party. The original goal was to reduce the time to disposition and reduce costs for litigants. IAALS’s survey, however, suggests it has not been particularly effective, and that it does not address the concerns of litigants. For example, it notes that attorneys are highly skeptical of using disclosures as an alternative to discovery. The following commentary in the report is particularly enlightening:
“One attorney noted that the disclosure process has become ‘an art in evasion,’ another likened the task of continually having to request disclosure of relevant information to ‘pulling teeth,’ and a third noted the inability to ‘test the completeness and accuracy’ of disclosures.”
To read the full report, click HERE.
The CLR would like your opinion — please leave a comment below. (Please note comments may be submitted anonymously and are moderated before they are posted.)
Rarely do courts invite review of their opinions, but in this case the court of appeals urged the Supreme Court to review “the potential inconsistency” between CRE 301 and precedent holding that the res ipsa loquitur doctrine shifts the burden of proof to the defendant. This is a medical malpractice case in which the facts of what actually happened during an angiogram were hotly contested. In Weiss v. Axler, 137 Colo. 544 (1958) the Supreme Court expressly held that if the doctrine applies, the defendant must prove the absence of negligence. In 1979, CRE 301 was adopted, and expressly states that presumptions (such as a presumption of negligence) do not shift the burden of proof. The court of appeals held that Weiss remains good law, and the trial court erred by refusing to instruct the jury that the burden shifted to the defendant to show he was not negligent. A new trial was ordered.
In Re Stacy Warden and Chris Warden as representatives of Noah Warden, a minor child v. Exempla, Inc. d/b/a Exempla Healthcare, et. al., 2012CO74 (December 20, 2012)
As we have re-discovered, after a tragedy people look for a cause. In this medical malpractice case, a baby was born with brain damage after being deprived of oxygen. The parents claim the cause was failure to monitor the baby during birth; the hospital claims the damage preceded labor. Three of Plaintiff’s experts were excluded. The Court reversed the exclusions. The first expert was excluded because she did not respond to Defendants’ experts. The Court disagreed, as she might refute Defendants’ theory of causation which relied heavily on a study she critiqued. Two experts addressing the child’s life expectancy were excluded as an “ambush.” The testimony should have been initially disclosed, but the delay was harmless because: 1) the trial is months away, 2) the importance to Plaintiff’s claim, 3) Defendants’ own experts raised the defense, and 4) lack of evidence of bad faith.