On Friday, October 30, 2015, the Colorado Supreme Court announced Rule Change 2015(08), amending Chapter 38 of the Colorado Rules of Civil Procedure, “Public Access to Information and Records.” The changes amended the title of the rules from “Public Access to Records and Information” and added an extensive new Rule 2, “Public Access to Administrative Records of the Judicial Branch.” The rule follows the Colorado Open Records Act (CORA) but is not identical, and the introductory paragraph to Rule 2 states, “Many of the rule’s deviations from CORA reflect simple changes to language and streamlined organization of the rule for clarity and to better serve the public. Other, substantive deviations from CORA reflect the unique nature of the records and operations of the Judicial Branch. These changes are addressed in comments throughout the rule. The rule pertains only to administrative records and does not contemplate or control access to court records.” The previously numbered Rule 2 was renumbered as Rule 3 but suffered no other amendments.
On Friday, September 11, 2015, the Colorado State Judicial Branch announced Rule Change 2015(07), effective September 9, 2015. The rule change affects C.R.C.P. 121, §§ 1-2 and 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure. The changes are minor, generally changing references to out-of-state or foreign attorneys and reflecting that foreign attorneys may be admitted under Rules 205.3 or 205.5 of the Rules Governing Admission to the Bar (C.R.C.P. Chapter 18). For a redline of the changes, click here.
The Colorado Supreme Court issued its opinion in Board of County Commissioners of Summit County v. Rodgers on Tuesday, September 8, 2015.
Nature of Directed Verdict—Nature of Summary Judgment—Colorado Civil Procedure.
The Supreme Court held that Colorado’s directed verdict rule, CRCP 50, allows trial courts to issue partial directed verdicts. CRCP 50 should be read in tandem with Colorado’s summary judgment rule, CRCP 56, which allows partial summary judgment, as well as the federal directed verdict rule, which permits partial directed verdicts. In addition, the Court concluded that plaintiffs invited the trial court to consider their various allegations of discriminatory acts as separate acts rather than as a pattern. Therefore, the trial court did not err in directing verdicts on some, but not all, of plaintiffs’ multiple claims in their 42 USC § 1983 lawsuit. Accordingly, the Court reversed the court of appeals’ opinion in its entirety and remanded the case for further proceedings consistent with this opinion.
Effective July 1, 2015, the Colorado Supreme Court has adopted a series of amendments to the Colorado Rules of Civil Procedure designed to significantly reduce the cost of and delays in litigation and to create a new culture for the handling of lawsuits. The amended rules will increase involvement of judges to establish early and personal judicial oversight of pretrial activities; provide for expedited discovery motions; change the breadth of required disclosures; limit discovery to what is needed, not what is wanted; limit expert discovery; clarify obligations when responding to interrogatories and requests for documents; and strengthen judges’ ability to award sanctions for noncompliance with these rules. The newly amended rules are available at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes/2015.cfm (click on Rule Change 2015(05)).
These revised pretrial rules will apply only to cases filed on or after July 1, 2015. Cases filed before then will continue to be governed by the older rules. This article explains, for both judges and lawyers, the nature of and justification for the changes and how the changes endeavor to foster a new culture and paradigm for handling civil cases in a way that will be faster and less expensive, while preserving the necessary search for and application of justice.
Reasons for the Changed Rules
With the approaching termination of the Civil Action Pilot Project (CAPP) in early 2014, the Colorado Supreme Court asked its Civil Rules Committee to consider what should be done with those rules. The Civil Rules Committee appointed a subcommittee that considered and recommended a number of amendments to the rules, which were discussed, modified, and approved by the entire Committee. The Supreme Court solicited written comments, held a public hearing to discuss the proposals, and adopted the recommended amendments with a few changes.
The reasons for these changes arose in conjunction with a dramatically increased nationwide recognition of the problem and the need for revised rules. The proposed rules were described in the April 2015 article in The Colorado Lawyer (“Part I: A New Paradigm”). The primary influences on the changes were (1) the changes to the Federal Rules of Civil Procedure (Federal Rules) recommended by the federal Judicial Conference Committee on Rules of Practice and Procedure, which are expected to be effective December 1, 2015; and (2) the June 30, 2015 expiration of CAPP for the handling of business actions applicable in five of the Denver metropolitan counties. The more specific reasons and justifications for substantive changes in Colorado’s various amended rules are discussed below. The amendments contain a number of other organizational and non-substantive technical and conforming changes that are not detailed in this article.
It is significant that the Supreme Court has adopted not only the revised rules (New Rules) discussed below, but also a set of Comments that are published along with the New Rules. Thus, interpretation of the New Rules, if necessary, should begin with an analysis of any pertinent provisions of the Court’s “2015 Comments.”
Rule 1—Scope of Rules
Other than the belated removal of the reference to the “Superior Court,” gone for so long that most readers will have never heard of it, the reason for amending Rule 1 was to make clear the intended breadth of its impact. Thus, securing “the just, speedy, and inexpensive determination of every action” is no longer simply a basis for “liberal construction” of the Civil Rules. As amended, Rule 1 now requires that the rules are also to be “administered and employed by the court and the parties” to achieve a just, speedy, and inexpensive determination of all cases. (Emphasis added).
The amended language in Rule 1 is taken verbatim from the change recommended for Federal Rule 1. As explained by the federal Advisory Committee on Civil Rules (Advisory Committee), a significant reason for bringing parties under the requirements of Rule 1 is to emphasize the need for the parties, and their counsel, to cooperate with each other to bring about the expeditious and effective processing of cases.
No one challenges the proposition that litigation moves much more smoothly, quickly, and efficiently when parties, and especially the lawyers, cooperate with each other in handling lawsuits. Although it is difficult to legislate civility, with the broadening of Rule 1’s applicability, lawyers can expect courts to remind them regularly of the importance—and effectiveness—of cooperating among themselves.
Rule 12—Defenses and Objections
The changes to Rule 12 are largely cosmetic. Rule 12(a) is broken into several subsections to make its provisions somewhat easier to find and read. Also, a number of changes were made to amend gender-based terminology.
It is noteworthy, however, and consistent with the aim of making litigation more just, speedy, and inexpensive, that the 2015 Comment to Rule 12 also pointedly notes that, “The practice of pleading every affirmative defense listed in Rule 8(c), irrespective of a factual basis for the defense, is improper under C.R.C.P. 11(a).” The 2015 Comment notes that defenses may be pleaded only if well founded in fact and warranted by existing law or a good-faith argument for changing existing law. If an adequate basis for a defense is subsequently discovered, a defendant may then move to amend the answer to add it.
Rule 16—Case Management
The case management provisions of Rule 16(b) through (e) are largely rewritten, and the central focus of case management has been significantly changed. The primary change has been to involve the trial judge in case management personally and actively from an early stage of the case. As noted in “Part I: A New Paradigm” in describing the proposed amendments to the Federal Rules, the federal Advisory Committee said, “What is needed can be described in two words—cooperation and proportionality—and one phrase—sustained, active, hands-on judicial case management.” Likewise, this judicial involvement and oversight were crucial and widely appreciated aspects of CAPP by both lawyers and judges. Early, active judicial case management is also an important factor emphasized by leading judges nationwide.
Early judicial involvement should include review and discussion of a number of matters, depending on the individual case. It can and should include identifying pleading and discovery issues proportional to the needs of the case, narrowing the claims and defenses, focusing and targeting discovery, establishing limits on allowable discovery, emphasizing the expectation that parties must cooperate civilly and efficiently, and setting a firm trial date.
New Rule 16 provides that the initial case management conference will be held within forty-nine days of the at issue date of the case. There is nothing in the Rule, however, that precludes a judge from initiating an earlier, in-person (or telephonic or video) status conference. Indeed, a number of judges use such early conferences. There are several matters that can be accomplished at such an early status conference and probably within about fifteen minutes. For example, the court can impress on the parties its view of the importance that counsel cooperate and maintain civility; and in smaller cases, it can urge the parties to give serious consideration to using Simplified Procedure under Rule 16.1 as a means of avoiding the need to prepare a proposed case management order (proposed order). (One of the reasons Simplified Procedure was successful during its pilot phase, under Judges Harlan Bockman and Christopher Munch, but was not as successful later, was that the pilot judges specifically urged parties to use simplified procedure, but subsequent judges generally have not affirmatively encouraged its use.) The court can also urge parties to demonstrate genuine cooperation and to agree on appropriately proportional discovery in their proposed order so they can avoid the necessity of a subsequent initial case management conference, as provided in Rule 16(d)(3). Additionally, the court can encourage reducing unnecessary claims and defenses, as well as targeting initial discovery on a key issue or issues in the case.
To facilitate meaningful case management, the parties will need to communicate early in the case to prepare a proposed order that will provide the court the basic information it needs to meaningfully participate. The new Rule 16 also anticipates an expanded use of oral motions and the potential for more regular contact between the parties and the judge to keep the case moving efficiently.
The revisions to Rule 16 reflect several matters learned both from CAPP and from the case management experience of the members of Civil Rules Committee. Under CAPP, case management conferences were to be attended in person by lead counsel; they were to be preceded by a fairly extensive report of pertinent matters; and they were then followed by a case management order from the judge. Thereafter, courts were instructed by CAPP to provide “active case management,” including prompt conferences by telephone if permitted by the court. Firm trial dates were to be set at the case management conference and not changed absent extraordinary circumstances.
After more than two years of experience with CAPP, the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver published its report of the case data and experience of lawyers and judges with CAPP based on surveys, interviews, and reviews of case filings. For lawyers, “CAPP’s focus on early, active and ongoing judicial management of cases received more positive feedback than any other aspect of the project.” Similarly, judges found that the initial case management conference was “the most useful tool for determining a proportionate pretrial process.”
The use of the “presumed case management order” was adopted by the Colorado Supreme Court in 2002 as a means of reducing the time attorneys spend preparing individual proposed orders. Nonetheless, the intervening years have shown that it also isolated the judges from involvement in the early and frequently most expensive and time-consuming aspects of litigation. The presumed case management order also had the somewhat perverse effect of disengaging the lead trial lawyers from much thought or collaboration with opposing counsel about the genuine needs of the case. Thus, in some cases, much of the pretrial disclosure and discovery was left in the hands of junior lawyers with less experience and little or no independent responsibility and accountability to the judicial system. The prevailing culture of “leave no stone unturned regardless of the cost” remained unchanged.
Prior to the current amendments, Rule 16(b) normally meant that no case management order would be issued by the court. The Rule itself became the “presumptive” order, unless the parties filed either a stipulated or disputed case management order within forty-two days of the at-issue date. Experience suggests that having an actual court order improves compliance with the discovery terms and is easier to enforce, when needed. Without judicial awareness of pretrial activities, lawyers’ financial incentives and concerns about protection against possible future malpractice claims meant that many cases proceeded on a “give us everything” basis without independent oversight and supervision.
Although Rule 16(b) focuses on the initial case management conference, courts and parties should note that nothing in this rule prevents additional status conferences when the need becomes apparent. Indeed, in complex cases, it may be desirable to have regularly scheduled status conferences (for example, “3:30 p.m. on the last Friday of every month”) to deal with new issues that may have arisen or to determine which conference can be cancelled if no new problems have arisen that would benefit from the court’s participation and oversight.
Rule 16(a)—Purpose and Scope
First, and importantly, the Civil Rules Committee did not revise Rule 16(a). The message and meaning of that section remain significant and should create the environment for the remainder of Rule 16 (and all other pretrial matters).
(a) Purpose and Scope. The purpose of this Rule 16 is to establish a uniform, court-supervised procedure involving case management which encourages professionalism and cooperation among counsel and parties to facilitate disclosure, discovery, pretrial and trial procedures.
This purpose carries added weight and reemphasizes the expansion of Rule 1’s requirement that court and parties now also administer and employ these rules to secure the just, speedy, and inexpensive determination of every action.
Rule 16(b)—Case Management Order
This section of Rule 16 has been completely revised. The parties must now prepare and submit to the court a proposed order not later than forty-two days after the case is at issue. There is now an approved form—JDF 622—that can be downloaded and filled in to comply with this requirement. The proposed order is to be submitted in editable format so that the court can make whatever amendments to the proposed order it deems to be appropriate and desirable. It is expected that many proposed orders will have attached pages providing the information requested in the form. Also, when the parties are not in agreement on certain issues, each party must supply on the form its own version of the information sought by any particular inquiry.
Although there are a number of items of information that must be included, the judges who had experience with the use of a detailed form under CAPP have concluded that the greater amount of information was necessary for them to effectively provide guidance at the case management conference. While the required information will necessitate more thought and more conferring at the outset of the case by parties and their counsel, this information should, in any event, be discussed early in the case if the goal of just, speedy, and inexpensive is to be approached. Furthermore, although some lawyers complain that preparation of this information is unnecessary “front-loading” of expense, counsel and parties will need this same information to evaluate and expedite any possible settlement or to consider the wisdom of proceeding to trial.
Each of the requirements contained in revised Rule 16(b) is described below. Readers are cautioned to read the text of the rules, because not all details of each subsection are discussed.
Rule 16(b)(1)—At-issue date. The at-issue date still triggers the timing requirements of the proposed order, initial disclosures, and discovery. The at-issue date remains the day when all parties have been served and all Rule 7 pleadings have been filed, or defaults or dismissals have been entered. The at-issue date is included in the proposed order for the court’s information.
Rule 16(b)(2)—Responsible Attorney. As in the prior Rule 16(b)(2), the responsible attorney is charged with organizing and preparing the proposed order and the steps leading to the preparation of that order. Normally, the responsible attorney will be plaintiff’s counsel, unless the plaintiff is pro se; in that case the responsible attorney may be the defendant’s counsel. The proposed order must identify the responsible attorney and provide contact information for the court’s use.
Rule 16(b)(3)—Meet and Confer. Within two weeks of the at-issue date, lead counsel and unrepresented parties are to confer about the case and the proposed order. The rule specifically calls for these conferences to be person-to-person (“in person or by telephone”) so that ordinary e-mails are insufficient to comply. Indeed, it is anticipated that preparing proposed orders may require multiple conferences and meetings. To ensure these conferences take place in a timely fashion, the rule also requires that the proposed order list the dates and identities of persons participating in those conferences. The conferences are held to discuss the basis for the claims and defenses, anticipated initial disclosures, the proposed order, and possible dates for the case management conference. The responsible attorney, who has arranged the conference, must obtain a date for the case management conference from the court. This sounds like a lot of time and effort, but if started in a timely fashion (and much can be done even before the final pleadings are filed), it should normally be easy to accomplish, because the time between the at-issue date and the case management conference can be up to seven weeks, and the proposed order does not have to be filed until one week before the case management conference.
Rule 16(b)(4)—Description of the Case. To advise the court of the nature of the case, each party must prepare a one-page (double-spaced) description of the case, including identification of the issues to be tried. Obviously, this is not intended to be a detailed factual recitation or a regurgitation of the entire complaint. It simply needs to be enough for the court to tell, for example, whether this is a single or multiple car accident, an antitrust case, or a building defect dispute. If publishers such as West Publishing can summarize a case decision in a paragraph or two, it was felt that parties to the litigation should also be able to describe the case succinctly.
Rule 16(b)(5)—Pending Motions. When there are motions under Rule 12 or otherwise that have not been resolved or ruled on when the proposed order is submitted, they are to be listed so the court will be reminded of them. Parties should be prepared to argue or discuss those motions at the case management conference, even if the time for full briefing has not expired. The court may decide them at that time, either by written order or orally from the bench.
Rule 16(b)(6)—Evaluation of Proportionality. For other than smaller, routine cases, this may be one of the more important parts of the proposed order. It will not be unusual for one of the major topics of discussion at the case management conference to be the proportionality of desired discovery, with the court deciding how much discovery is appropriate under the circumstances of the case. To the extent that the parties are seeking either more discovery than the limits set out in Rule 26(b)(2) or are seeking to limit even that discovery, this is the portion of the proposed order in which to address those issues. Parties should at least discuss the proportionality considerations listed in Rule 26(b)(1) that are relevant to the case at hand. These may include: (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. Individual cases may have additional matters that a court should consider, and they should be identified in this section of the proposed order.
Rule 16(b)(7)—Initial Exploration of Prompt Settlement and Prospects for Settlement. The parties are required to discuss possible settlement, describe the prospects for settlement, and provide future dates for mediation or arbitration. Experience shows that more than 95% of the cases will not go to trial, so this requirement merely reflects that reality and seeks to have the parties start the discussions earlier rather than later. The discussion may also be helpful in organizing discovery. For example, if the defendant believes that liability is probably going to be established but that it needs to understand the plaintiff’s damages before settlement discussions are likely to be useful, the parties or court may suggest phasing discovery to focus on damages before going into all other areas. This way, settlement can be reopened before unnecessary sums are spent on less pertinent issues. Thus, in this example, proposed dates for settlement could be set for shortly after the projected date for completing discovery on damages.
Rule 16(b)(8)—Proposed Deadlines for Amendments. This provision moves the date for amending pleadings and adding parties up to two weeks from the deadline in prior Rule 16(b)(8). However, if this deadline is unnecessary or can be moved sooner to the case management conference, that fact should be addressed in this portion of the proposed order. The justification for fifteen weeks following the at-issue date is: seven weeks for the case management conference, five weeks for the first set of discovery responses, and three weeks to prepare any amendments. Of course, nothing prevents parties from taking depositions to investigate this subject following the case management conference or requesting expedited written discovery responses related to this issue. Parties should be prepared for the possibility that the court may not believe that much time is needed and may expedite this deadline to keep the case moving.
Rule 16(b)(9)—Disclosures. The parties’ initial disclosures under Rule 26(a)(1) are due twenty-eight days following the at-issue date—that is, three weeks before the case management conference deadline. The proposed order must state when those disclosures were actually made and when the documents were produced. Because parties sometimes disagree on whether the disclosures are complete, this proposed order requests that any objections to the other parties’ disclosures be addressed here. This way, there is a significant likelihood that the judge can rule on those issues at the case management conference without further delay. Indeed, Rule 26(a)(1) specifically prohibits filing motions objecting to allegedly inadequate disclosures prior to the case management conference. This is required because the adequacy of disclosures normally can be more easily addressed in person at the case management conference at the same time the court is considering issues of proportionality.
Rule 16(b)(10)—Computation and Discovery Relating to Damages. Rule 26(a)(1)(C) requires (and has for years) disclosure of categories of damages, a computation of damages, and supporting documents. That requirement is not changed in the New Rules. However, experience has shown that frequently claimants will assert that they have not been able to establish those calculations or to have gathered the supporting documents. Because this information is often crucial to resolving the case through settlement discussions, this new provision demands at least that if the disclosures have not been made, the claiming party must explain why it was unable to provide the disclosures as required and when it expects that it can produce those disclosures and documents. If the court believes the delay does not result from inability to provide the damages or that the delay is too distant, it may well shorten those time limits when it issues the case management order.
Rule 16(b)(11)—Discovery Limits and Schedule. This provision essentially incorporates the presumptive limits on discovery contained in Rule 26(b)(2), although it expressly permits parties to request more or less discovery and allows the court to either increase or decrease those limits after considering the proportionality factors in Rule 26(b)(1). Parties should expect to be asked to support any changes in discovery when they attend the case management conference. The changes in authorized discovery may not only impact numbers of deponents or allowed hours of depositions, but might also limit the number of interrogatories, requests to produce documents, or requests for admissions. Before attending the case management conference, parties should think about what specific written discovery they might want, especially interrogatories and requests for admission, because some judges and lawyers believe that such discovery is often unproductive or not proportional.
This provision also establishes that discovery may not commence until the case management order is served. This delay is incorporated to allow the court to expand or limit discovery before the parties begin under possibly erroneous assumptions as to what discovery will be allowed or limited. Likewise, the deadline for discovery is set for not later than forty-nine days before trial—a date the court can alter if appropriate.
A provision relating to discovery limits allows the court to consider limits on awardable costs. For example, a court might include in the order that it will not allow recovery of videotape charges for depositions, travel costs for out-of-state depositions of relatively unimportant witnesses, or travel costs for the depositions that could be taken telephonically. The parties can consider how badly they really need that discovery.
Rule 16(b)(12)—Subjects for Expert Testimony. This subsection asks the parties to identify subject areas for anticipated expert testimony both for retained experts and for percipient witnesses of facts who may also be asked to provide opinion testimony (such as the investigating police officer, the attending physician, or a party’s accountant). If parties on one side of a case are seeking more than one retained expert per subject, they must show the good cause for them, consistent with proportionality. (A case for negligent heart surgery may justify more experts than a case for negligent setting of a broken arm.) Sometimes, parties on one side of the case may have different perspectives and need additional experts, which this provision allows. For example, plaintiffs in medical malpractice cases may sue hospitals, nurses, and doctors, each of whom may want to have available expert testimony as to why they are not liable but other defendants might be. The same problem can be routinely expected in building defect cases.
Rule 16(b)(13)—Proposed Deadlines for Expert Disclosures. Expert disclosures are to be made within the time limits established in Rule 26(a)(2)(C), unless some different date is set in this subsection. For example, it might be expeditious for discovery to focus on liability at the outset and, therefore, to have liability experts provide their disclosures early so parties can attempt to settle or so the court could consider summary judgment on that issue before the parties undergo the entire panoply of discovery.
Rule 16(b)(14)—Oral Discovery Motions. A significant number of judges have found that requiring discovery disputes to be presented on short notice and orally is much faster, cheaper, and more efficient than using an extended written motion briefing schedule and then plowing through dozens of pages of briefs. Other judges require that motions be written and fully briefed. Because of the substantial potential savings in time and expense of oral motions, it was felt desirable to bring this issue to everyone’s attention and to have the judge advise the lawyers of the judge’s practice in this respect. If the lawyers are not already aware of the court’s procedures, they should leave unmarked the choice of “(does)(does not) require discovery motions to be presented orally” in the proposed order. The judge can then mark out the inappropriate one or may insert a more extensive description of the judge’s desires concerning discovery motions.
Rule 16(b)(15)—Electronically Stored Information. The federal courts have tended to impose exhaustive and frequently onerous requirements on parties with respect to preservation, production, and handling of electronically stored information (ESI). The Colorado Civil Rules Committee on the other hand has been reluctant to impose specific requirements on all Colorado cases primarily because more than 50% of the civil cases seek relief of under $100,000 and very few seek as much as $1 million. Thus, while cases will almost inevitably have some information that is in the form of ESI, a large proportion of those cases in Colorado courts will not involve unusual amounts of relevant ESI, and parties acting in good faith can normally find it easy to agree on and produce that information.
Where, however, it appears early in the case that a significant amount of the discoverable ESI will be involved, the parties must discuss, attempt to resolve, and report in the proposed order (1) issues of any search terms that should be used; (2) production, preservation, and restoration of ESI; (3) the form of production (for example, native format, with or without metadata, etc.); and, if significant, (4) an estimate of the related cost of such production. Here, as in many aspects of litigation, genuine cooperation and communication among counsel can save thousands of dollars, weeks or months of time, and substantial brain damage to all concerned. This provision does not attempt to draw a sharp line between whether and when such details are to be included, because this decision must be made on a case-by-case basis. Whatever is decided, the parties should expect to be asked about it by the judge at the case management conference.
Even if discovery of ESI is relatively simple and noncontroversial, it is important to address this topic soon after the case is at issue so the parties can understand what problems, if any, might be anticipated. Even an agreement that the parties will work together and do not need special provisions can smooth the way for better cooperation, less time, and less expense.
Rule 16(b)(16)—Trial Date and Length of Trial. The parties should discuss and report on their sense as to when they expect to complete discovery, as well as the expected length of the trial itself. In most cases, the parties should expect that the court will set a trial date during the case management conference. However, some courts decline to set trial dates until the completion of discovery or some other date further into the case preparation. This provision allows for both situations. Still, most judges expect that the case will be tried on the first trial date, so parties should not count on easy or automatic extensions of a trial date.
Rule 16(b)(17)—Other Appropriate Matters. This portion of the report is simply a catch-all for other issues unique to the particular case.
Rule 16(b)(18)—Entry of Case Management Order. Once the proposed order is prepared for filing, lead counsel are to approve and sign it before filing. After the case management conference and after reviewing and making any changes the court deems necessary or appropriate, the court shall sign the document, at which time it will become the official case management order and will bind the parties thereafter, unless modified pursuant to Rule 16(e).
Rule 16(c)—Pretrial Motions
The provisions of the prior Rule 16(c) (modified case management orders) are completely deleted because that section related to modifications of presumptive case management orders, which have been repealed. Modification of those orders is now moot. In its place, the provisions of former Rule 16(b)(9) have been moved verbatim to Rule 16(c). Thus, the need to file pretrial motions and motionsin limine thirty-five days before trial, summary judgment motions ninety-one days before trial, and challenges to the admissibility of expert testimony seventy days before trial remain intact.
Rule 16(d)—Case Management Conferences
Again, because the prior version of this section related to resolution of disputed modified case management orders, or specially requested case management conferences, this section has been completely rewritten and is now a focal point of the effort to bring early, active judicial case management to the forefront of civil litigation. The impetus for this change was from several sources. The ACTL Final Report states:
We believe that pretrial conferences should be held early and that in those conferences courts should identify pleading and discovery issues, specify when they should be addressed and resolved, describe the types of limited discovery that will be permitted and set a timetable for completion. We also believe the conferences are important for a speedy and efficient resolution of the litigation because they allow the court to set directions and guidelines early in the case.
This conclusion was bolstered by the interviews with outstanding trial judges, virtually all of whom use in-person, initial case management conferences.
Similarly, an amendment to Federal Rule 16(b) strikes the prior reference to scheduling conferences (the federal term for case management conferences) being held by “telephone, mail, or other means.” Although the text of the federal rule suggests that scheduling conferences are to be conducted in person, the accompanying Committee Note urges that the conference be held “in person, by telephone or by more sophisticated electronic means,” anticipating video conferences. The Note adds that a “scheduling conference is more effective if the court and parties engage in direct simultaneous communication.”
Colorado Rule 16(d)(1) requires that the case management conference be held no later than forty-nine days (seven weeks) after the case is at issue. There is no prohibition on the court setting an earlier conference or on the parties seeking an earlier date from the court.
Rule 16(d)(2) provides that lead counsel for the parties and any unrepresented parties are to be present at the case management conference in person, unless allowed by the court to attend by telephone or video conference, if available. That subsection calls for parties to be prepared to “discuss the proposed order, issues requiring resolution and any special circumstances of the case.” Experienced judges who have previously used in-person case management conferences suggest that there are a number of matters that can be discussed and clarified to create case preparation procedures that are in fact just, speedy, and inexpensive.
Rule 16(d)(3) provides the one exception for personal case management conferences. Where all parties are represented by counsel and counsel agree, they may submit a request to the court to dispense with a case management conference. This does not, however, dispense with the need to prepare and file a proposed order. The court can grant the request if (1) there appear to be no unusual issues that might be better dealt with by the court early in the case; (2) counsel appear to be working together collegially; and (3) the proposed order appears to be consistent with the best interests of the parties and is proportional to the needs of the case. It is expected that it will be the smaller cases and those with fewer factual and legal issues for which courts will more likely dispense with the case management conferences. Counsel can clearly aid their request if they can demonstrate by a clear, concise, and limited proposed order that they are—and are likely to continue to be—working together in the spirit of obtaining a just, speedy, and inexpensive resolution.
Rule 16(e)—Amendment of Case Management Orders
All amendments to case management orders, whether for extension of deadlines or otherwise, must be supported by specific showings of good cause for the timing of the request and for its necessity. If applicable, the showing of good cause needs to address the provisions of Rule 26(b)(2)(F), describing factors for determining good cause, discussed below. Although this amended rule is essentially the same as the prior version of this rule, because the details of the new case management orders are more extensive, there may be more need to request amendments. If counsel agree to changes that do not affect the court (for example, they agree to take depositions two weeks before trial), the parties must assume that if the agreement is breached by one of the parties, the court will refuse to enforce the agreement and will look askance at counsel willing to act inconsistently with the case management order.
 See CRCP 1(b).
 The Subcommittee members included Rules Committee members: Court of Appeals Judge Michael H. Berger (Committee Chair); Richard P. Holme (Subcommittee Chair); David R. DeMuro; Judge Lisa Hamilton-Fieldman; Judge Ann B. Frick; Thomas K. Kane; Richard W. Laugesen; David C. Little; Professor Christopher B. Mueller; Teresa T. Tate; Judge John R. Webb; and Judge Christopher C. Zenisek. Outside members of the subcommittee were Judge Herbert L. Stern, III; Judge E. Eric Elliff; Gordon (Skip) W. Netzorg; and John R. Rodman.
 See Holme, “Proposed New Pretrial Rules for Civil Cases—Part I: A New Paradigm,” 43 The Colorado Lawyer 43 (April 2015), www.cobar.org/tcl/tcl_articles.cfm?articleid=8860.
 See id. at 46-47. Following publication of Part I: A New Paradigm, on April 29, 2015, the U.S. Supreme Court approved the amendments and submitted them to Congress, which could change them, but has only done so on one prior occasion. See online.iaals.du.edu/2015/05/04/supreme-court-adopts-amendments-to-the-federal-rules-of-civil-procedure.
 See Holme supra note 3 at 47-48 (description of CAPP).
 The Denver Superior Court was a civil court with a jurisdictional limit of $5,000. It was abolished in 1986.
 Memorandum from Judge David Campbell to Judge Jeffrey Sutton re Proposed Amendments to the Federal Rules of Civil Procedure B-2 (June 14, 2014), available from the author.
 Id. at B-2 to B-3.
 Holme, supra note 3 at 48.
 American College of Trial Lawyers/Institute for the Advancement of the American Legal System (ACTL/IAALS), “Working Smarter Not Harder: How Excellent Judges Manage Cases” (2014) (“Working Smarter”), iaals.du.edu/images/wygwam/documents/publications/Working_Smarter_Not_Harder.pdf.
 See, e.g., id. at Appendix D.
 Rule 16(b) and 16(d)(1).
 See ACTL/IAALS, supra note 10 at 7.
 Pilot Project Rule (PPR) 7.1.
 PPR 7.1 to 7.2.
 PPR 8.1 to 8.4.
 PPR 8.5.
 See Gerety and Cornett, “IAALS, Momentum for Change: The Impact of the Colorado Civil Access Pilot Project” (Oct. 2014) (CAPP Final Report), iaals.du.edu/images/wygwam/documents/publications/Momentum_for_Change_CAPP_Final_Report.pdf. The CAPP Final Report was preceded by a preliminary report: Gerety and Cornett, “IAALS, Preliminary Findings on the Colorado Civil Access Pilot Project” (April 2014), iaals.du.edu/images/wygwam/documents/publications/Preliminary_Findings_on_CAPP.pdf.
 CAPP Final Report, supra note 18 at 23.
 Id. at 24.
 PPR 7.1 to 7.2; and PPR Appendix B.
 See Holme, “‘No Written Discovery Motions’ Technique Reduces Delays, Costs, and Judges’ Workloads,” 42 The Colorado Lawyer 65 (March 2013), www.cobar.org/tcl/tcl_articles.cfm?articleid=7995. See also ACTL/IAALS, supra note 10 at 21-22.
 See, e.g., FRCP 26(f)(3)(C); Zubulake v. UBS Warburg LLC, 217 FRD 309 (S.D.N.Y. 2003); U.S. District Court for the District of Kansas, “Guidelines for Cases Involving Electronically Stored Information,” www.ksd.uscourts.gov/guidelines-for-esi.
 ACTL/IAALS, “Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System” 2 (rev. ed., 2009), iaals.du.edu/images/wygwam/documents/publications/ACTL-IAALS_Final_Report_rev_8-4-10.pdf.
 See ACTL/IAALS supra note 10 at 10-20.
 2014 Rules Report at 19 (May 2014), available from the author.
 See, e.g., 2015 Comment to CRCP 16(d). See also ACTL/IAALS, supra note 10 at 10-20 and Appendix D; Prince, “A New Model for Civil Case Management: Efficiency Through Intrinsic Engagement,” 5 Court Review 174, 189-92 (2014).
Colorado Court of Appeals: Determination of “Good Cause” for Removal of Trustees Under Colorado Library Law Subject to Judicial Review
The Colorado Court of Appeals issued its opinion in High Plains Library District v. Kirkmeyer on Thursday, July 2, 2015.
Commissioners—Board of Trustees—Library District—Preliminary Injunction—Removal—Good Cause—Judicial Review.
Members of the Weld County Board of County Commissioners (commissioners) adopted resolutions to remove the board of trustees (board) of the High Plains Library District (district). Plaintiffs, the trustees and the district, filed a complaint and sought a preliminary injunction to prevent the removal. The district court granted a preliminary injunction (1) prohibiting the trustees’ removal and (2) limiting the trustees’ ability to enter into any new contracts, begin new projects, or adopt new policies until the resolution of this action.
On appeal, the commissioners argued that the district court erred in allowing evidence regarding the existence of good cause “in fact” under CRS § 24-90-108(5) for the removal of the trustees because the decision to remove the trustees was a ministerial or administrative act of each legislative body and is therefore not subject to judicial review. Review under CRCP 106(a)(4) is the exclusive remedy for determining whether a governmental body exercising a quasi-judicial function has abused its discretion or exceeded its jurisdiction. Therefore, the district court had the authority to review the existence of good cause for removal under CRS § 24-90-108(5).
The commissioners also argued that the district court abused its discretion in granting the preliminary injunction. Specifically, it contended that plaintiffs did not demonstrate a reasonable probability of success on the merits. Defendants did not provide evidence of any facts supporting their stated reasons for good cause in removing the board. Accordingly, the district court did not erroneously apply the law or otherwise make a decision that was manifestly arbitrary, unreasonable, or unfair when it granted plaintiffs’ motion for a preliminary injunction in this matter. The order was affirmed.
On Monday, June 1, 2015, the Colorado State Judicial Branch released Rule Change 2015(04) and Rule Change 2015(05). Rule Change 2015(04) amends Rule 32, “Sentence and Judgment,” of the Colorado Rules of Criminal Procedure. The changes are significant and amend many procedural aspects of sentencing. The changes were adopted and effective May 22, 2015.
Rule Change 2015(05) amends the Colorado Rules of Civil Procedure. The changes are extensive and mirror the changes to the Federal Rules of Civil Procedure. According to the new Comment to Rule 1, “The 2015 amendments are the next step in a wave of reform literally sweeping the nation. This reform movement aims to create a significant change in the existing culture of pretrial discovery with the goal of emphasizing and enforcing Rule 1’s mandate that discovery be administered to make litigation just, speedy, and inexpensive. One of the primary movers of this reform effort is a realization that the cost and delays of the existing litigation process is denying meaningful access to the judicial system for many people.” The rule change also added a new form, JDF 622, “Proposed Case Management Order.” The changes were adopted by the Colorado Supreme Court on May 28, 2015, and are effective July 1, 2015, for cases filed on or after July 1, 2015.
On Thursday, June 25, 2015, CLE will host a program to discuss the new rule changes and what they will mean for Colorado attorneys. Richard Holme, Hon. Thomas Kane, and Hon. Michael Berger will discuss the new rules and their significance. Don’t miss this important opportunity to learn about the requirements of the new Rules.
Colorado Court of Appeals: Parties to Dissolution Have Affirmative Duty to Disclose Information Under Rule 16.2
The Colorado Court of Appeals issued its opinion in In re Marriage of Hunt on Thursday, May 7, 2015.
Legal Separation—Business Valuation—CRCP 16.2(e)—Mandatory Disclosures—Reallocation.
In July 2012, wife petitioned for legal separation of the parties’ marriage. One month later, husband filed a certificate of mandatory disclosures under CRCP 16.2. In September 2012, based on an agreement reached in mediation, the parties entered into a memorandum of understanding (MOU) dividing the marital value of a business, Big R Construction Company (Big R), owned and operated by husband. In March 2013, wife filed a motion for relief from the MOU provisions relating to Big R, which was denied.
On appeal, wife contended that husband violated CRCP 16.2(e) by not disclosing mandatory financial information regarding Big R, and therefore, the district court erred by not granting her motion to reopen the property division under CRCP 16.2(e)(10). Husband had an affirmative duty to disclose financial information regarding Big R, and he violated CRCP 16.2(e) by failing to disclose all personal and business financial statements prepared in the last three years; loan applications and agreements from 2011 and 2012; a 2010 appraisal of Big R’s real property; and a 2012 appraisal of its equipment. Without husband having violated the disclosure requirements of CRCP 16.2, wife would have been bound by her decision to enter into the MOU, acknowledging the uncertain value of Big R. Because husband violated CRCP 16.2(e), however, the plain language of CRCP 16.2(e)(10) applies, which allows a five-year period within which to reallocate “material assets or liabilities, the omission or non-disclosure of which materially affects the division of assets and liabilities. Accordingly, the district court should have applied CRCP 16.2(e)(10) and granted wife’s motion to reopen the property division, despite the MOU language. The district court’s order was reversed and the case was remanded.
Colorado Supreme Court: Appeal Not Properly Before Supreme Court Because No Issues Finally Decided by Trial Court
The Colorado Supreme Court issued its opinion in East Cherry Creek Valley Water & Sanitation District v. Wolfe on Monday, May 11, 2015.
CRCP 54(b)—Final Judgment of a Claim—Dismissal of Appeal for Lack of Jurisdiction—Prayer for Relief in a Change of Water Right Application Case.
The Supreme Court held that this appeal was not properly before it under CRCP 54(b) because the trial court did not enter final judgment on any claim for relief in this litigation. Here, East Cherry Creek Valley’s application pleaded one claim for relief: that the water court issue a change decree granting its change of water right application from irrigation use to domestic, municipal, augmentation, and exchange uses in connection with the 5.472 Greely Irrigation Company shares it owns. Accordingly, the Court reversed the water court’s certification order, dismissed the appeal, and returned the case for further proceedings consistent with this opinion.
Colorado Court of Appeals: Amended Complaint Could Not Avoid Jurisdictional Time Bar Because It Did Not Relate Back to Original Complaint
The Colorado Court of Appeals issued its opinion in Auxier v. McDonald on Thursday, April 23, 2015.
CRCP 106(b) Time Limits in Relation to CRCP 106(a)(4).
The Fritzes obtained a building permit to construct an accessory structure at a Salida address adjacent to plaintiff Auxier’s property. Auxier objected and appealed several decisions related to the project to the City of Salida Planning Commission. The Planning Commission affirmed the issuance of the building permit on January 10, 2013.
On January 25, Auxier filed a complaint in the district court, alleging four claims for relief and naming the Salida City Administrator, the Fritzes, and Chalk Creek Initiative, LLC as defendants. Auxier filed an amended complaint on March 25, seventy-four days after the Planning Commission’s final decision. The amended complaint added the City of Salida, the City Council, and the Planning Commission as defendants. It also added a CRCP 106(a)(4) claim against the Planning Commission.
Defendants moved to dismiss the claims against them. The district court found Auxier’s CRCP 106(a)(4) claim untimely because it had not been filed within twenty-eight days of the Planning Commission’s final decision and did not relate back to the original complaint. It therefore dismissed this claim for lack of subject matter jurisdiction. Construing Auxier’s claim against the Administrator as seeking mandamus relief under CRCP 106(a)(2), the court dismissed it for failure to state a claim on which relief could be granted.
On appeal, Auxier argued it was error to dismiss his CRCP 106(a)(4) claim as untimely. He contended that it related back to his original complaint, which gave “ample notice” of facts giving rise to a CRCP 106(a)(4) claim against the Planning Commission. The Court of Appeals disagreed. Auxier’s original complaint did not give notice of a claim against anyone in the City other than the Administrator, and did not give notice of any claim regarding abuse of discretion or exceeding its jurisdiction of any governmental body. Under these circumstances, his original complaint did not give ample notice of a CRCP 106(a)(4) claim against the Planning Commission, and the district court properly treated Auxier’s claim against the Planning Commission in the amended complaint as a new claim.
Auxier further argued that CRCP 106(b) permitted him to add a Rule 106(a)(4) claim after the twenty-eight-day limitations period expired because his original complaint alleging other claims for relief was filed within twenty-eight days of the Planning Commission’s final decision. The Court disagreed. Auxier’s original complaint did not seek review under CRCP 106(a)(4), so his amended complaint seeking such review did not relate back to his original complaint. The judgment was affirmed.
The Colorado Supreme Court is seeking public comment on proposed changes to the Colorado Rules of Civil Procedure. Amendments to rules 1, 12, 16, 16.1, 26, 30, 31, 34, 37, 54, and 121, § 1-22 are proposed; some of the amendments, including those for Rule 16, “Case Management and Trial Management,” are extensive. A redline of the proposed changes is available here.
Written comments to the proposed rule changes can be submitted to Christopher Ryan, the Clerk of the Colorado Supreme Court, at 2 East 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 17, 2015.
A public hearing on the changes will be held on April 30, 2015, at 1:30 p.m. in the Colorado Supreme Court courtroom. The courtroom is located on the 4th floor of the Ralph Carr Justice Center at 2 East 14th Avenue in Denver.
The Colorado Court of Appeals issued its opinion in Reisbeck, LLC v. Levis on Thursday, December 4, 2014.
Quiet Title—CRCP 60(a).
Plaintiffs Reisbeck, LLCand Robert Jersin are the record owners of real property in Adams County (property). Reisbeck owns an undivided 85% interest and Jersin owns an undivided 15% interest in the property.
In 1947, defendant Arthur Levis obtained a right-of-way across the property for a “rail spur.” However, no rail spur was ever constructed on the property. To clear the record encumbrance, Reisbeck’s counsel commenced an action under CRCP 105 to quiet title to the property in Reisbeck and Jersin against any claims of Levis and all unknown persons claiming any interest in the property. Jersin was joined as an involuntary party plaintiff.
Defendants were served by publication, and no answers or responsive pleadings were filed. Reisbeck’s counsel moved for entry of default. The judgment form submitted named “Reisbeck, LLC” as plaintiff. However, Reisbeck, LLC does not exist; its proper name is Reisbeck Subdivision, LLC. The district court granted the motion and entered default judgment in plaintiffs’ favor. Following entry of judgment, Reisbeck’s counsel discovered the name error. He filed a motion under CRCP 60(a), seeking relief and asking the court to amend the judgment and correct the name. The court denied the request.
On appeal, plaintiffs argued it was an abuse of discretion to deny the request for relief. The Court of Appeals agreed. CRCP 60(a) is a safety valve allowing the district court to correct, at any time, an honestly mistaken judgment that does not represent the understanding and expectations of the court and the parties. Here, there was nothing in the record indicating that the error by counsel was anything other than an honest mistake. The corrected judgment would represent the parties’ expectation in pursuing the quiet title action and the court’s intention in issuing the judgment. No different or additional liability would be imposed on any existing defendant and no party previously not named would need to be added. The district court’s order was reversed and the case was remanded to amend the judgment.
The Colorado Supreme Court announced Rule Change 2014(14), effective October 30, 2014, and 2014(15), effective November 1, 2014. Rule Change 2014(14) amends Rule 47, “Jurors,” of the Colorado Rules of Civil Procedure. Rule Change 2014(15) amends Rule 2.2, “Summons — Content and Service,” Rule 3, “Advisement,” and Rule 3.7, “Detention,” of the Colorado Rules of Juvenile Procedure, and it adds a new Rule 3.9, “Counsel.” The changes to the Rules of Juvenile Procedure coordinate with changes to the Colorado Revised Statutes pursuant to HB 14-1032.
C.R.C.P. 47(u), “Juror Questions,” was amended to clarify that juror questions will be reviewed with counsel for the parties outside the hearing of the jury, to permit jurors to ask follow up questions in writing, and to prohibit jurors from orally questioning any witness. The amendments specify that the court retains discretion to address juror questions or permit follow up questions. Click here for a redline of the changes to Rule 47.
The changes to the Rules of Juvenile Procedure are extensive. Rule 2.2 was amended to subdivide different types of juvenile proceedings and specify summons procedures for each type of proceeding. The changes to Rule 3 were relatively minor, adding language to clarify timing for the juvenile’s advisement and changing some wording. The changes to Rule 3.7 were much more extensive, detailing procedures for juvenile detention and court oversight of the detainer. New Rule 3.9, “Counsel,” deals with appointed counsel in juvenile delinquency proceedings, and includes provisions for appointment of counsel, waiver of counsel, and withdrawal of counsel. Click here for a redline of the changes to the Rules of Juvenile Procedure.
In addition to the rules changes, two Chief Justice Directives were amended to comply with HB 14-1032. The Colorado Supreme Court amended CJD 04-04 and added new CJD 14-01. CJD 04-04 was amended to eliminate specified procedures related to the appointment of counsel in juvenile delinquency proceedings. CJD 14-01 was added to adopt new procedures for the appointment of defense counsel in juvenile delinquency proceedings. Both CJDs are effective November 1, 2014.