Chapter 3 - § 3.6 • RESPONDING TO REQUESTS FOR PRODUCTION

• Jurisdiction: Colorado

§ 3.6 • RESPONDING TO REQUESTS FOR PRODUCTION

§ 3.6.1—Making Objections

Both Colorado and Federal Rule 34 require that the responding party object with specificity to any request and "state whether any responsive materials are being withheld on the basis of that objection." See C.R.C.P. 34(b); F.R.C.P. 34(b)(2)(C). The Colorado rule was amended in 2015 to conform to the federal rule and "to avoid the practice of repeating numerous boilerplate objections to each request which do not identify specifically what is objectionable about each specific request." 2015 advisory committee notes.

If a party fails to serve timely objections that are due on or prior to the deadline for responding substantively, it waives its right to object. C.R.C.P. 34(b); F.R.C.P. 34(b)(2)(A); Mueller v. Dist. Court, 610 P.2d 104, 105 (Colo. 1980); Hall v. Sullivan, 231 F.R.D. 468, 473-74 (D. Md. 2005); Fonville v. Dist. of Columbia, 230 F.R.D. 38, 42 (D.D.C. 2005) (collecting cases). When responding to requests for production, one must also make specific objections to each request, or risk waiving those objections. See Scott v. Matlack, Inc., 39 P.3d 1160, 1173-74 (Colo. 2002), as modified (Feb. 4, 2002) (affirming sanctions for failure to produce documents where only general objections initially made to requests). If a party believes it has a valid legal reason for not responding to a discovery request (e.g., the information is privileged), it must object or file a motion for a protective order at the time discovery is sought. If the party does not respond to the request or file for a protective order, it waives its objection. See id.

However, one exception to this rule in Colorado is that the constitutional privilege against self-incrimination is not waived by failing to serve a timely response. The Fifth Amendment privilege against self-incrimination must be waived knowingly, intelligently, and voluntarily, and courts generally will not infer these requirements from a party's failure to respond to a discovery request. See Mueller, 610 P.2d at 105-06.

§ 3.6.2—Objections Based on Burden and Expense

The fact that production of documents would be burdensome and expensive or would hamper some of a party's business operations is generally not in itself a reason for sustaining an objection to discovery. See In re Folding Carton Antitrust Litig., 76 F.R.D. 420, 426 (N.D. Ill. 1977); Laufman v. Oakley Bldg. & Loan Co., 72 F.R.D. 116, 121 (S.D. Ohio 1976); Alexander v. Parsons, 75 F.R.D. 536, 538-39 (W.D. Mich. 1977). Courts have the power under Rule 26(c), however, to protect parties from discovery requests that are unduly burdensome or expensive. See C.R.C.P. 26(c); F.R.C.P. 26(c). A party requesting discovery may not shift the financial burden of preparing its case to the responding party by suggesting that discovery expenses may ultimately be assessed against either party as costs. "A defendant cannot be required to finance the legal action of his [or her] adversary." See Bristol Myers Co. v. Dist. Court, 422 P.2d 373, 376 (Colo. 1967); see also Jessee v. Farmers Ins. Exch., 147 P.3d 56, 59-60 (Colo. 2006); Niagara Duplicator Co. v. Shackleford, 160 F.2d 25, 26-27 (D.C. Cir. 1947) ("We do not believe that the last clause 'and may prescribe such terms and conditions as are just' operates to allow the court to cast on the producing party the burden and expense of making the copies or photostats.").

As discussed in § 3.4.3, F.R.C.P. 26(b)(2)(B) relieves the producing party from its obligation to produce ESI when the information is "not reasonably accessible" because of the costs and burden of production. The party from whom discovery is sought bears the burden of showing that the...