The Changes to Colorado and Federal Civil Rule 45
| Publication year | 2013 |
| Pages | 57 |
| Citation | Vol. 42 No. 12 Pg. 57 |
Articles
The Civil Litigator
The Changes to Colorado and Federal Civil Rule 45
By William C. Groh.
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editor
Timothy Reynolds, Boulder, of Bryan Cave HRO—(303) 417-8510, timothy.reynolds@bryancave.com
About the Author
William C. Groh, III is a commercial and civil litigator in solo practice in Lakewood. He began practice in Northern Virginia in 2005 before relocating to the Denver area in 2011—(720) 515-4764, wcgroh@gmail.com.
The amendments to rules governing Colorado and federal subpoenas promise substantial changes to subpoena practice. New CRCP 45 allows subpoenas solely for documents while significantly expanding procedures to protect information. New FRCP 45 clarifies the role of the trial court in hearing compliance-related motions and simplifies the rules governing service of out-of-state parties.
On January 1,2013, significant changes to Colorado Rule of Civil Procedure (CRCP) 45 went into effect. Changes to Federal Rule of Civil Procedure (FRCP) 45 take effect on December 1,2013. New CRCP 45 substantially increases procedural protection of privileged information, especially in the context of subpoenas to service providers, such as attorneys, clergy, orphysicians. It also offers additional safeguards designed to reduce unnecessary burdens on subpoenaed persons while providing them more information about their rights and obligations. New CRCP 45 also permits records subpoenas without a witness appearance, allows greater flexibility in payment of witness fees, and clarifies that subpoenas are not to be used to circumvent discovery limits.
The changes to FRCP 45 are less comprehensive but still significant, especially in the context of subpoenas requiring compliance in a district other than the trial court. New FRCP 45 allows compliance-related motions to be transferred to the trial court either under exceptional circumstances or with the subpoenaed person's consent. New FRCP 45 also clarifies rules governing service of subpoenas on the parties and resolves a long-standing controversy over whether a party can compel out-of-state party witnesses to travel more than 100 miles to testify.
Changes to CRCP 45
Many of New CRCP 45's requirements are considerably more specific than the old rule. These changes promise greater procedural clarity for litigants while specifying greater protections for subpoenaed parties.
The New Form
New CRCP 45 entitles the subpoenaed person to significantly more information concerning the parties to the case and their attorneys, as well as the subpoenaed person's rights and obligations in responding. In addition to the information required by Old CRCP 45, the subpoena now must identify the serving party, along with the names and contact information of all attorneys of record and pro se parties. Deposition subpoenas must state the method for recording the testimony. Subpoenas for records must include an attachment quoting the provisions of New CRCP 45(c) and (d). These provisions delineate the protections available to the subpoenaed parties, as well as then-duties in responding to the subpoena. The new subpoena forms JDF 80 and 80.1 are available on the Colorado Supreme Court's website.[1]
Increased Protections for Subpoenaed Persons
New CRCP 45 introduces additional protections to subpoenaed persons that largely mirror the requirements of Federal Rule 45. Old CRCP 45 allowed motions to quash "unreasonable and oppressive" subpoenas, but did not specifically require the issuing party or attorney to avoid unduly burdening the subpoenaed person. Like the federal rule, New CRCP 45(c)(1) now includes this duty:
A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney's fees, on a party who fails to comply.
The issuing party or attorney failing to comply with this duty is subject to sanctions. The standard for imposing sanctions is higher than the standard for granting a motion to quash. Federal courts applying this rule have equated the standard for sanctions under Rule 45(c) with the standard for discovery sanctions under FRCP 26(g), looking for evidence of bad faith in issuing the subpoena.[2]
Document Subpoenas and Compliance
Old CRCP 45 allowed production of subpoenaed documents only at a deposition or hearing.[3] Although it was accepted practice for the parties and the witness to waive the appearance by agreement if the witness has produced the subpoenaed documents,[4] New CRCP 45 has obviated the need for this practice by permitting records subpoenas.[5]
New CRCP 45 also introduces specific time requirements for records subpoenas.[6] Records subpoenas must be served at least fourteen days before the date of compliance, and the subpoenaed person must wait at least fourteen days before producing documents. This time period can be shortened by court order on an expedited hearing, or by written agreement among all parties, the privilege holder (if any), and the person subpoenaed.
Protection of Privileged Information
In addition to mandatory time requirements governing records subpoenas, New CRCP 45 is designed to encourage resolution of privilege issues before subpoenas are served on certain service providers, such as attorneys, clergy, or physicians.[7] New CRCP 45(c)(2)(B) (i) provides:
If a subpoena commands production of records from a person who provides services subject to one of the privileges established by C.R.S. § 13-90-107, or from the records custodian for that person, which records pertain to services performed by or at the direction of that person ("privileged records"), such a subpoena must be accompanied by an authorization signed by the privilege holder or holders or by a court order authorizing production of such records.
If a subpoena is served without the required authorization, the rule prohibits the subpoenaed person from disclosing the privileged records to the issuing party.[8] However, this requirement is triggered only under certain specific scenarios. An authorization is not necessary just because the subpoenaed person provides privileged services or might have access to privileged records.
For example, an authorization may be required to subpoena an attorney for records relating to the attorney's legal representation of a third party. On the other hand, an authorization is not required to subpoena the attorney for records unrelated to the attorney's legal services. An authorization is also not necessary to subpoena a corporation for...
To continue reading
Request your trial