Chapter 8 - § 8.1 DISCLOSURES IN STATE DISTRICT COURT

• Jurisdiction: Colorado

§ 8.1 Disclosures in State District Court

§ 8.1.1 Non-Simplified Procedure Civil Cases—C.R.C.P. 26(a)(1) Disclosures

Mandatory Disclosures

All parties in non-simplified procedure civil cases are required to exchange their mandatory C.R.C.P. 26(a)(1) disclosures within 30 days after the case is at issue.¹ Parties must make their disclosures based on information then known and reasonably available, whether or not the other party's disclosures are sufficient, and whether or not the disclosing party has completed its investigation into the facts of the case.² In short, the fact that a party needs more information from the other party or that investigation into the claim has not been completed does not relieve a party from its disclosure obligations.

The mandatory disclosures must include the name, address, and telephone number of any person "likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings."³ The disclosure should include who the person is—not just his or her name—and the subjects of the information the person is likely to have.⁴ The attorney should be mindful that a party must disclose all persons likely to have evidence, whether or not the information they have is likely to support or disprove the party's own case. This requirement is broader than that of the Federal Rules of Civil Procedure, which only require disclosure of persons likely to have information regarding the disclosing party's claims and defenses.⁵ Accordingly, in state court, parties must also disclose the names of persons who have information harmful to their case, not just those who have information helpful to their case. So a party who knows about the existence of "smoking gun" evidence against him or her must disclose it. (This disclosure rule pertains to civil cases. If the party has a Fifth Amendment right against self-incrimination with regard to the evidence, that party and his or her attorney should discuss the option of asserting that right in the civil case.)

Mandatory disclosure provisions also require parties to identify all documents, data compilations, and other tangible items in their possession, custody, or control that are relevant to the "disputed facts alleged with particularity in the pleadings." The disclosure must also identify the location of all evidence that is not privileged or otherwise protected from disclosure. The disclosing party must make all items available for copying or inspection without the need for a request for production pursuant to C.R.C.P. 34.⁶ The aim of this provision is to enable a party to request copies or an inspection of the other party's evidence simply by asking. The disclosure requirement puts an affirmative duty on each party to come forward and identify all evidence that is relevant to the controversy and also to produce that evidence upon a simple request, if it was not attached to the disclosures.

Mandatory disclosure provisions under C.R.C.P. 26(a)(1) direct that each party set forth in detail all categories and amounts of damages being claimed and identify all documentation relating to those damages. The disclosing party should be careful to continue to supplement its damage calculations and categories because the opposing party has no obligation to do further discovery on the issue of damages than what is disclosed. Accordingly, if a party intends to claim damages but has not sufficiently identified or supported them in its disclosures, it may face the exclusion of any evidence on the subject at trial.⁷

Again, there is an affirmative obligation: (1) to disclose all evidence known or reasonably available at the time of the initial disclosures; and (2) to produce those documents or other evidence without the need for the opposing party to make a formal discovery request. An oral request should be sufficient, but to document compliance or noncompliance, the requesting attorney should follow up the oral request in writing.

The final category of disclosures mandated by C.R.C.P. 26(a)(1) is all insurance information pertaining to coverage of the claims involved in the case. The insurance documentation must be made available for copying or inspection.⁸

Counsel should be aware that these disclosure requirements are intended to replace formal discovery to a large extent. In practice, however, this replacement has not occurred, and parties continue to be forced to propound formal discovery to receive information they believe is relevant to the case. Courts are increasingly losing patience with parties and their attorneys who continue to resist voluntary and full disclosure of information and evidence.

Failure to disclose information under C.R.C.P. 26(a)(1) is punishable by sanctions under C.R.C.P. 37(c), as well as sanctions particularly referenced in Rule 26.⁹ The available sanctions can extend to the seriously prejudicial sanctions of exclusion of evidence, the dismissal of claims, or the striking of defenses.

The parties must supplement their disclosures in accordance with C.R.C.P. 26(e) when new information is learned and when any information given previously is found to be incorrect.

Expert Disclosures

Information regarding a party's expert witnesses must be disclosed pursuant to C.R.C.P. 26(a)(2). The disclosures required for expert witnesses include: (1) identification of the witness; (2) identification of the expert witness's fields of experience; and (3) a written report or summary of the expert's opinions and the basis of those opinions.¹⁰ The Colorado Rules of Civil Procedure, unlike the Federal Rules, allow the parties to use a summary of the expert's opinions, which...