Posted by: Andrew Toft
November 20, 2011
Topic: Disclosure/Discovery

On November 19 the Denver Bar Association held its Bench/Bar Retreat, "Civil Access Pilot Project in the District Courts: Limits on Discovery in Business Cases," regarding the Civil Access Pilot Project ("CAPP"). CAPP is effective for many types of cases filed on or after January 1, 2012, in the Adams County, Arapahoe County, Denver County, Gilpin County and Jefferson County district courts. There are Pilot Project Rules ("PPR") that govern pretrial process in CAPP actions filed after January 1, 2012. Anyone filing cases in CAPP district courts should read Chief Justice Directive 11-02 and must be familiar with the rules and time periods found at http://www.courts.state.co.us/Courts/Civil_Rules.cfm. Amended Appendix A in the CJD lists both the case types included in CAPP and specific exclusions from CAPP. PPR 1 states that the Colorado Rules of Civil Procedure will govern except to the extent there is an inconsistency, in which case the PPR will take precedence. The impact of the PPR on the handling of CAPP cases will be significant. Time deadlines, pleading requirements, discovery, use of experts, judicial involvement, disclosures and the procedural impact of the filing of a motion to dismiss will all change under the PPR. Relevant to my post last week regarding In re Averyt v. Wal-Mart Stores, Inc., released November 7, 2011, by the Colorado Supreme Court, http://www.courts.state.co.us/Courts/Supreme_Court/opinions/2011/11SA66.pdf, PPR 9.1 states:

Discovery shall be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and shall comport with the factors of proportionality in PPR 1.3 (emphasis added).

Compare PPR 9.1 to In re Averyt, in which the Colorado Supreme Court stated in pertinent part:

As a general rule, however, discovery is not required for public documents that are equally available to all parties....In addition, we apply this general rule in the context of automatic disclosures because nothing in Rule 26 requires disclosure by a party of documents which it would not be required to produce, if requested, under C.R.C.P. 34 [footnote omitted].

Modifying the facts of In re Averyt, in which the impeaching public document was obtained by plaintiff's counsel after a jury trial had commenced, what are counsel's obligations if a potentially impeaching public document is found well prior to trial, perhaps even before discovery is closed?

How should the apparent inconsistency between In re Averyt and PPR 9.1 (let alone CRCP 16 and CRCP 26) be resolved? In my opinion, the trial judge should discuss counsels' obligations under In re Averyt and PPR 9.1 with counsel at the case management conference mandated by PPR 7. If the judge does not raise this issue, in my opinion counsel should strongly consider bringing the issue to the attention of the judge to get direction from the court.

Andrew M. Toft

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