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Colorado Supreme Court, En Banc, Calls for “Active Judicial Management” of Discovery Productions

Posted on August 5th, 2013

The Colorado Supreme Court recently handed down a ruling regarding disputes over discovery productions and electronic data in civil litigation. Their solution? More court intervention and “active judicial management” of pre-trial discovery matters.

The case is DCP Midstream, LP v. Andarko Petroleum Corporation, Case No. 12SA307 (Colo. 2013)(en banc). Plaintiff alleged eleven breach of contract claims and put defendant on notice that it anticipated additional claims. Plaintiff sought millions of paper and electronic documents in this complex business litigation regarding the oil and gas industry.

Defendant objected to plaintiff electronic discovery requests, claiming that many of the requests were outside the proper scope as permitted by the Colorado Rule of Civil Procedure (CRCP) 26(b)(1). The defendant claimed that the requests were not regarding a “claim or defense,” but were a mere fishing expedition in anticipation of filing additional claims. The lower court held that the requests were proper and ordered compliance.

The state Supreme Court looked to the purpose of CRCP 26 regarding the proper scope of discovery. CRCP 26 was amended in 2002 to reflect the federal rule addressing scope. Although it had previously allowed discovery relevant to the “subject matter,” the amended rule further limited discovery to only relevant information stemming from a “claim or defense.” The court noted that the amended rule signaled to parties that they are not entitled to discovery productions for claims not already identified in the pleadings.

An important take-away to this case is the Colorado Supreme Court’s direction to state judges that they must assert “active judicial management” of discovery disputes to control excessive discovery. Discovery must be tailored by the courts using the cost-benefit and proportionality factors in CRCP 26(b)(2)(F). The Supreme Court noted that the trial court made no findings when it ruled on the scope of discovery in this case. This was an abuse of discretion, and the court remanded with instructions that the trial court to take an active role in determining the proper scope and tailor the discovery production accordingly.

ILS – Plaintiff eDiscovery Experts

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