Chapter 13 - § 13.2 • WHAT CAUSES DISCOVERY ABUSE?

• Jurisdiction: Colorado

§ 13.2 • WHAT CAUSES DISCOVERY ABUSE?

Judge Gorsuch of the Tenth Circuit Court of Appeals recognized that the lengthy history of the rules of procedure began in 1937 with the notion that the rules would help ensure "the just, speedy, and inexpensive determination of every action." F.R.C.P. 1, cited in Lee v. Max Int'l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011). But, as Judge Gorsuch noted, "To date, that promise remains elusive, more aspirational than descriptive." Id. The institution of discovery and disclosure rules, especially Rule 37, was specifically "designed to increase the managerial role of the trial court in the discovery process and reduce discovery abuse." Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 977 (Colo. 1999). The objective of those new rules was to eliminate "hide-the-ball" and "hardball" tactics and discovery was "created to end the fox-and-hounds, or trial by ambush, method for the trial of civil actions." Committee Comment [8], C.R.C.P. 16; Posey v. Dist. Ct., 586 P.2d 36, 38 (Colo. 1978) (Kelley, J., dissenting). Though many older practitioners would be quick to claim that the new disclosure and discovery rules have made it more likely that cases will involve discovery abuse, this author believes such memories of the "good ol' days" lack evidentiary support.

As in most things, whether a practice constitutes abuse is generally in the eyes of the beholder. As a practitioner, you may see opposing counsel's meaningful responses to your own discovery requests as abuse while simultaneously viewing your own obstreperous responses as carefully drafted. Often, when the judge presiding over a case is presented with failures to comply with the rules, the judge either scolds both sides without meaningful rulings, or takes no action whatsoever. There is plenty of blame shared by all three sides of the litigation equation.

Many times, what appears to be abusive discovery conduct begins with the parties themselves; whether the litigant is an individual or a business entity, there are pieces of information that a litigant may never want to see the light of day. While some of the desires of litigants to hold certain information close is proper under the rules, still other pieces of information are required to be provided, despite the wishes of the client or his or her attorney.

Practitioners who blindly follow their client's dictates in withholding information, without serious consideration of whether the information should be properly...