Colorado's New Rules of Civil Procedure, Part Ii: Rediscovering Discovery
| Publication year | 1994 |
| Pages | 2711 |
| Citation | Vol. 23 No. 12 Pg. 2711 |
1994, December, Pg. 2711. Colorado's New Rules of Civil Procedure, Part II: Rediscovering Discovery
This is the second article describing the substantial changes in pretrial preparation and discovery for civil cases. The changes are effective January 1, 1995, and comprise significant revisions to Rule 16 of the Colorado Rules of Civil Procedure and most of the discovery rules.
The first article, Part I, appeared in the November 1994 issue of The Colorado Lawyer.(fn1) It described the circumstances which led to the adoption of the Colorado Rules of Civil Procedure ("new Rules") and the history of those Rules. Part I suggested that the new Rules reflect the Colorado Supreme Court's insistence on the adoption by the trial bench and bar of new attitudes: (1) increased professionalism and decreased discovery abuse; (2) increased judicial oversight and decreased expense; and (3) increased "front-loading" of case preparation and decreased delay.
Part I also discussed the totally rewritten Rule 16, which mandates increased initial participation in case preparation by lead counsel and by the trial court, the new requirement of disclosing costs of discovery to clients before discovery commences and the requirements for the Case Management Order and a new Trial Management Order.
Part I also detailed the provisions of new Rule 26 which call for automatic disclosure before the commencement of discovery of "disputed facts alleged with particularity in the pleadings," under new Rule 26(a)(1). Finally, it discussed the second major change in new Rule 26---the sharply limited discovery under new Rule 26(b)(2), which can only be expanded following specific approval by the trial court upon a showing of good cause.(fn2)
This Part II focuses on the more detailed aspects of the revised new Rules 30--37 as they relate to discovery and sanctions and on related changes in Rule 121.
A central feature to remember with respect to the new Rules is that the most important changes created in each of the individual discovery rules is not contained in those specific rules at all. The most significant of the revisions are those contained in new Rules 16 and 26.
The first of the major shifts in the way practitioners will be affected is that, without prior approval of the trial court, no discovery will be allowed until after the Case Management Order is submitted to the trial court.(fn3) The impact of this change is that, rather than serving initial interrogatories along with the complaint, or placing notice of an immediate deposition of the plaintiff's president, for example, on receipt of the complaint, all parties will be limited to engaging in other actions required to be taken under the new Rules. Under new Rule 16(b), the time for automatic disclosures and discovery does not start to run until the case is "at issue."(fn4) Therefore, motion practice under Rule 12 will effectively stay any discovery until a couple months after the trial court has ruled on such motions.
Instead of engaging in immediate discovery, parties will need to prepare initial meetings of lead counsel [new Rule 16(b)] to discuss issues of what and how much will have to be disclosed under new Rule 26(a)(1). They will need to gather information, interview witnesses, collect documents and prepare lists to comply with the disclosure requirements under that same Rule. Counsel will need to discuss settlement postures with their clients to prepare for new Rule 16(b) settlement conferences which must be held prior to the submission of a Case Management Order. Lead counsel for the opposing parties also must meet to negotiate the terms of the Case Management Order which must be submitted forty-five days after the case is at issue.
Discovery is not being deferred out of some kinder and gentler motive of giving counsel leisure time to perform all the other tasks that have now been imposed on them under the new Rules. Discovery is being deferred primarily to force the parties to wait until after receipt of the initial automatic disclosures mandated
Richard P. Holme, Denver, is a member of the firm of Davis, Graham & Stubbs, L.L.C., and a member of the Standing Committee on Civil Rules.
Under the provisions of new Rule 26 (d), some discovery may commence once the Case Management Order has been submitted to the trial court. However, that permissible discovery is only the limited discovery allowed under new Rule 26(b)(2). Any discovery beyond that must be deferred until after the trial court has approved some or all of any additional requested discovery, which must have been set forth in the proposed Case Management Order.
A party may ask the trial court for an order allowing earlier discovery where the exigencies of the particular case necessitate it, such as where there are factual issues surrounding a defendant's motion to dismiss for lack of personal jurisdiction, a Rule 12 motion which is converted into a Rule 56 motion for summary judgment, or a motion for preliminary injunction. This request may be made either pursuant to the terms of new Rule 26(b)(2) or, in the case of the summary judgment motion, under Rule 56(f). Indeed, it is probably a wise tactical move in the summary judgment setting to file a motion under both of those rules. However, in the summary judgment situation, the parties should be aware that the trial court may limit any such discovery purely to disputed facts relevant to the summary judgment issues. There is no need for the court to allow general discovery.(fn5)
The second major impact of new Rule 26 on all of the remaining discovery rules is its limitation on the quantity of discovery to be permitted as a matter of course in all cases. Thus, it is new Rule 26(b)(2) which limits depositions to one of each adverse party and of two other persons, limits interrogatories to thirty single question interrogatories, limits requests for documents to twenty single requests and limits requests for admissions to twenty single requests for admission.
These restrictions, the bases for obtaining waivers from these limits and permission to engage in further discovery; some of the issues raised by the language of the rules; and some of the tactical considerations which can be impacted by these limitations were discussed in greater length in Part I of this article.(fn6)
The spirit, intent and attitudinal changes reflected in the new Rules can be easily derived from the first section of the revised deposition rule, new Rule 30(a). This subsection, which has been substantially shortened from its earlier form, seems on first reading to be a benign grant of authority to take depositions without leave of court. However, as one begins to understand the "subject to" and "except" language, it is apparent that the new Rule takes away more than it gives. It creates severe limitations on the "right" to take depositions; enforces judicial involvement in the process; discourages some unprofessional tactics; and cuts down on the early, and often thoughtless, expenditure of discovery costs.
Thus, the grant of power to take depositions is immediately hemmed in by the fact that such power is "subject to" the limitations of new Rule 26(b)(4)(A) (which allows expert depositions only after their opinions have been disclosed) and new Rule 26(d) (which precludes taking of any depositions until after submission of a proposed Case Management Order).
Without so much as a new sentence, the new Rule then imposes an additional "exception" to the power to take depositions by incorporating the limitations in new Rule 30(a)(2). That new Rule provides that leave of court must be obtained if a party wants to take (1) more depositions than the number authorized by the Case Management Order, (2) a second deposition of a person, (3) an early deposition of a person who is expected to leave the state before a deposition could be taken under the new Rule or (4) the deposition of a person in prison.
New Rule 30 also includes a number of clarifying and modernizing provisions relating to the mechanics and procedures to be utilized in arranging and taking depositions.
Added to the requirement in Rule 30 (b)(1) that reasonable notice be given to all parties of the intent to take a person's deposition, is the new requirement that such notice be provided in accordance with new Rule 121 § 1--12. That Rule, which has previously provided that reasonable notice is five days, has been amended so that it is now clear that the five-day period is to be calculated in accordance with Rule 6 and essentially means five business days. Thus, in order to assure the five business days, any notice of less than seven days must exclude Saturdays, Sundays and legal holidays. If the notice is served by mail, an additional three days must also be provided for mailing, under Rule 6(e).
In addition to clarifying how the minimum notice is to be computed, new Rule 121 § 1--12 mandates that even before sending out a notice of deposition, counsel seeking the deposition must make good faith efforts to reach several agreements with other counsel. The lawyer desirous of taking a deposition must first attempt to schedule a time for taking the deposition which is both convenient and "economically...
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