Chapter 18 - § 18.5 • ATTORNEY FEES FOR DISCOVERY VIOLATIONS — C.R.C.P. 37

• Jurisdiction: Colorado

§ 18.5 • ATTORNEY FEES FOR DISCOVERY VIOLATIONS — C.R.C.P. 37

In addition to statutes seeking to prevent frivolous claims and lawsuits, Colorado also has a statute that seeks to make the discovery process more efficient and keep discovery issues from overwhelming the court system.⁵⁶ If a party files a motion compelling disclosure or discovery, and the motion is granted or the discovery or disclosure is provided after the filing of the motion, the court may require the party or attorney that necessitated the filing of the motion to pay the other party's reasonable expenses, including attorney fees, incurred in making the motion.⁵⁷ This provision of the Colorado Rules of Civil Procedure gives parties incentive to comply with reasonable discovery requests. If the party filing the motion to compel did not make a good faith effort to obtain the disclosure or discovery, or if the opposing party's nondisclosure, response, or objection was substantially justified, then the court will not award expenses or attorney fees.⁵⁸

In an effort to keep discovery-related conflicts from congesting the court system, Rule 37 also states that if a motion to compel discovery is denied, the court may require the moving party or attorney to pay the opposing party's reasonable expenses, including attorney fees, incurred in challenging the motion.⁵⁹ However, the court will not award expenses if it finds that the motion to compel was substantially justified or that other circumstances would make an award of expenses unjust.⁶⁰ If a motion is granted in part and denied in part, the court can apportion the reasonable expenses amongst the parties in a just manner.⁶¹

The trial court has broad discretion in the imposition of sanctions for failure to make disclosures or cooperate in discovery.⁶²

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Notes:

^[56] C.R.C.P. 37.

^[57] C.R.C.P. 37(a)(4).

^[58] Id.

^[59] C.R.C.P. 37(a)(4)(B).

^[60] Id.

^[61] C.R.C.P. 37(a)(4)(C).

^[62] Pfantz v. Kmart Corp., 85 P.3d 564, 567 (Colo. App. 2003); In re Marriage of Emerson, 77 P.3d 923, 927 (Colo. App. 2003); Prefer v. PharmNetRx, LLC, 18 P.3d 844, 849 (Colo. App. 2000); Burt v. Beautiful Savior Lutheran Church, 809 P.2d 1064, 1069 (Colo. App. 1990).