Earlier this year, we, as attorneys, were blessed by the Colorado Supreme Court’s decision to completely overhaul the procedure for practicing law in Colorado. Dubbed the Colorado Civil Access Pilot Project, or CAPP for short, its new procedures apply in (1) “Business Actions” (2) filed between Jan. 1, 2012, and Dec. 31, 2013 (3) in Adams, Arapahoe, Denver, Gilpin, or Jefferson counties.
For what constitutes a “Business Action”, see page 8 of Chief Justice Directive 11-02, available here. Notable exclusions from CAPP include: actions solely for the payment of rent on real property, CRCP 120 proceedings, actions brought by financial institutions solely for the collection of debt, employment actions other than disputes concerning the breach of a non-compete or theft of trade secrets, construction defect claims, negligence actions for physical injuries, and actions involving a statute or rule that contains distinct timeframes for the proceedings.
I have had the opportunity to represent parties in two CAPP cases this year — one as a plaintiff and one as a defendant. Our CAPP plaintiff case was filed in late March. I don’t have much to report from this case because it settled shortly thereafter, but I did take notice of how quickly we were required to make our initial disclosures. Under CAPP, the plaintiff is required to file initial disclosures no later than 21 days after service of the complaint. This felt like a very quick turnaround. We definitely had to do a little more work on the front end to meet the deadline. These initial disclosures consist of:
[A] statement listing all persons with information related to the claims and a brief description of the information each such individual is believed to possess, whether the information is supportive or harmful. The statement shall also include a certification that the party has available for inspection and copying all reasonably available documents and things related to the claims, along with a description by category and subject area of the documents and things being disclosed, whether they are supportive or harmful.
Again (it was not a typo two sentences ago), these disclosures must be filed with the court and served on the opposing party or parties.
A few things to note here: First, regarding the scope of the initial disclosure statement, the CAPP authors have emphasized that “all documents” means all documents, whether supportive or harmful. Based on the wording of C.R.C.P. 26(a)(1), I think lawyers were already under an obligation to produce everything, but the CAPP authors seem to think that many attorneys don’t give over the juicy stuff unless asked. Second, the scope of discovery changed from “relevant to” to “related to.” Based on my reading, it appears that “related to” is a broader standard. Third, this initial disclosure statement is somewhat narrow in that no counterclaims have yet been brought. So the scope of discovery at that point is only documents “related to” the claims in the complaint. However, if counterclaims are brought, the plaintiff has to file an additional disclosure statement (discussed more below). Finally, I took note of how different it is to give documents to a defendant who has not yet filed an answer.
The CAPP case where our firm represents the defendant has been much juicier. That case was filed in early March and remains ongoing. I’ve observed a couple CAPP pitfalls in this case. First, file your initial disclosure statement. The CAPP deadlines are structured such that one deadline begins only after the previous deadline has been met. Under the CAPP rules, the answer is not due until 21 days after the plaintiff files the disclosure statement. Technically, if you don’t file your disclosure statement, the defendant doesn’t have to answer. Second, the CAPP courts are issuing delay reduction orders shortly after the filing of the complaint. One of the provisions of the DROs is for the plaintiff to set a case management conference within seven days after the last answer is filed. Note, this deadline is not in the CAPP rules, so watch out for it.
At this point in the case, if I were to identify the biggest difference between CAPP and the Colorado Rules of Civil Procedure it would be that, if counterclaims are filed, the CAPP pleading/initial disclosure stage can take a long time. As I said, this case was filed in early March, and the final disclosure statement is not due until mid-to-late June. Time will tell whether the CAPP rules can justify this lengthy pre-discovery period by significantly reducing the length and burden of discovery. If not, I don’t think the CAPP rules will make litigating any more efficient than under the CRCP.