February 10, 2016

Five Cybersecurity Tech Tips: Worries to Give You the Willies

Editor’s Note: This post originally appeared on Attorney at Work on January 29, 2016. Reprinted with permission. See below for information about ordering Colorado CLE’s homestudy for our program, “Data Privacy & Information Security: Meeting the Challenges of this Complex and Evolving Area of the Law.”

By Sharon Nelson and John Simek

A keyboard with a red button - Privacy

A keyboard with a red button – Privacy

There are lots of cybersecurity worries to give you the willies in the wee hours of the morning, but we were asked to pick five. So here are some of the most common threats for lawyers to keep in mind.

1. Ransomware. We continue to see law firms struck by ransomware, which is a type of malware that encrypts your data (restricting your access to it) and then demands a ransom payment — usually in bitcoins — to get your data back. Training your employees not to click on suspicious attachments or links in email will help. They should stay away from suspicious sites as well since ransomware can be installed by just “driving by” an infected website.

Overwhelmingly, from a technological standpoint, you can defeat ransomware by having a backup that is immune to it. This can mean, particularly for solo lawyers, that you back up and then disconnect the backup from the network. For others, it means running an agent-based backup system rather than one that uses drive letters. Make sure your IT consultant has your backup engineered so that backups are protected — that way, even if you are attacked with ransomware, you can thumb your nose at the thief’s demands for money because you can restore your system from your backup. Of course, this means backups need to be made frequently to avoid any significant data loss.

2. Employees. Employees are by nature rogues. Every study made shows employees will ignore policies (assuming they exist) to do what they want to do. This often means people bring their own devices (BYOD) which may be infected when they connect to your network. They may also bring their own network (BYON) or bring their own cloud (BYOC). Certainly, your policies should disallow these practices (in our judgment) or, at least, manage the risks by controlling what it is done by implementing a combination of policies and technology.

Oh, and employees steal your data or leave it on flash drives or their home devices, too. This means you have “dark data” — data you don’t know about and over which you have no control. This means you may miss data required in discovery because you don’t know it exists. Your data may not be protected in compliance with federal or state laws and regulations. And you have no way to manage the data because you don’t know it is there. Once again, a combination of policies and technology should be in place to prevent these issues.

3. Targeted phishing. This is perhaps the greatest and most successful threat to law firm data. Someone has you in their sights — often they have done research on your law firm. They may know the cases you are involved in — and who your opponents are. They may know the managing partner’s nickname. Everything they know about you, they may use to get you to click on something (say, an email from an opponent referencing a specific case and saying “The next hearing in ___ case has been rescheduled as per the attachment). Many a lawyer has clicked on such attachments — or a link within an email.

The best solution to protect yourself from targeted phishing is training and more training — endlessly. One California firm was targeted by multiple phishing attacks but survived them because the lawyers and staff who received such emails questioned their authenticity.

Forget the loss of billable time. The loss of money, time and even clients due to a data breach can be far worse.

4. Interception of confidential information. Start with the proposition that everyone wants your data, including cybercriminals, hackers and nation states (including our own). Frankly, if they want your data and they have sophisticated tools, they will get it. So shame on you if you are not employing encryption (which is now cheap and easy) to protect confidential data transmitted and received via voice, text, and email. Encryption today is a law firm’s best friend. You may choose to use it always or in cases where it is warranted — but you surely should have the capability of encrypting.

5. Failure to use technology to enforce passwords policies. First, let us say that you should use multi-factor authentication where available and use it to protect sensitive data. But failing that, we recognize that passwords are still king in solo practices and small to midsize firms. Therefore, have your IT consultant assist you in setting up policies that can be enforced by technology, requiring that network passwords be changed every 30 days, not reused for an extended period of time — and mandating strong passwords (14 or more characters in length, utilizing upper- and lowercase letters, numbers and symbols). Passphrases are best. Iloveattorneyatwork2016! would do nicely.

There are many other “willies” out there, but address them one digestible chunk at a time!

Sharon D. Nelson (@SharonNelsonEsq) and John W. Simek (@SenseiEnt) are the President and Vice President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm based in Fairfax, VA. Popular speakers and authors, they have written several books, including “The 2008-2015 Solo and Small Firm Legal Technology Guides” and “Encryption Made Simple for Lawyers.” Sharon blogs at Ride the Lightning and together they co-host of the Digital Detectives podcast.

 

CLE Homestudy: Data Privacy & Information Security — Meeting the Challenges of this Complex and Evolving Area of the Law

This CLE presentation took place Friday, January 22, 2016. Order the homestudy here: CDMP3 audioVideo OnDemand.

The 2015 Amendments to the Federal Rules of Civil Procedure (Part 3 of 3)

Editor’s Note: This is Part 3 of a three-part series discussing the 2015 changes to the Federal Rules of Civil Procedure. Part 1 discussed the changes to Rules 1, 4, and 16, and is available here. Part 2 discussed the changes to Rule 26, and is available here

Bill_GrohBy William C. Groh, III

Changes to Rules 30, 31, and 33

Rules 30 and 31, which govern depositions, have been amended to account for the changes to Rule 26. Both rules require that when the parties seek leave of court to conduct depositions, “the court must grant leave to the extent consistent with Rule 26(b)(1) and (2).” Rule 33, governing interrogatories, has also been amended to reflect the proportionality requirements of Rule 26(b).

Rule 34

Like Rules 30, 31, and 33, the amendments to Rule 34 (governing requests for production) incorporate the changes to Rule 26. They also require greater specificity in objecting to discovery requests. New Rule 34(b)(2)(B) requires the responding party to “state with specificity the grounds for objecting to the request, including the reasons.”

New Rule 34(b)(2)(C) further clarifies this requirement by requiring that “an objection must state whether any responsive materials are being withheld on the basis of that objection.” In practical terms, however, a party will not necessarily have detailed knowledge of withheld documents. This is especially so if a responding party has conducted a limited search for documents based on an objection: how can the party specify what has been “withheld” in these circumstances?

The Committee Notes address these questions, providing that in objecting to a request, “[t]he producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.” [1]  The Committee Notes also address the issue of limited searches, providing that “an objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘withheld.’”[2]

Finally, Rule 34(b)(2)(B) has been amended to reflect the “common practice” of producing documents rather than permitting inspection.[3] The new rule provides that “[t]he responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”[4]

Rule 37

The amendments to Rule 37(e) provide more guidance regarding the failure to preserve ESI. Prior Rule 37(e), adopted in 2006, provided that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” While the rule implied authority to impose sanctions on a finding of bad faith, it provided no other specific criteria.

New Rule 37(e) provides a more comprehensive framework for courts to issue sanctions in the event of loss of ESI where “a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” As a preliminary matter, while New Rule 37(e)(1) requires a finding of prejudice resulting from a negligent failure to preserve ESI, it does not place a burden of proving or disproving prejudice on one party or the other. The Committee Notes indicate that under certain circumstances, it would be unfair for the party that did not lose the information to demonstrate prejudice. Under other circumstances, however, the content of the lost information might be “fairly evident” and perhaps unimportant in light of other available information; the Committee Notes suggest that the party seeking relief should be required to demonstrate prejudice under those circumstances.[5] In light of these considerations, the rule leaves the court with discretion as to how best to assess prejudice.[6]

Once prejudice has been found, New Rule 37(e)(1) states that the court “may order measures no greater than necessary to cure the prejudice.” The court is afforded wide discretion in fashioning appropriate remedies, depending on the circumstances. The Committee Notes caution, however, that “authority to order measures no greater than necessary to cure prejudice does not require the court to adopt measures to cure every possible prejudicial effect.”[7]

No finding of prejudice is required, however, to impose sanctions when a party has acted “with the intent to deprive another party of the information’s use in the litigation.”[8] Sanctions for the willful destruction of ESI include (1) presumptions that the lost information was unfavorable to the party, (2) adverse jury instructions, or (3) dismissal of the action or default judgment.[9] The Committee Notes caution that these more punitive remedies should not be confused with the “curative” remedies available under Rule 26(e)(1), noting that courts should:

ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent to deprive another party of the lost information’s use in the litigation. An example of an inappropriate (e)(1) measure might be an order striking pleadings related to, or precluding a party from offering any evidence in support of, the central or only claim or defense in the case. On the other hand, it may be appropriate to exclude a specific item of evidence to offset prejudice caused by failure to preserve other evidence that might contradict the excluded item of evidence.[10]

Lastly, and while not incorporated into Rule 37(e) itself, the Committee Notes provide considerable analysis as to how courts should determine whether a party has taken reasonable steps to preserve ESI. The Committee Notes describe factors to address in considering when a duty to preserve may have arisen, as well as proportionality factors in evaluating what preservation measures may have been reasonable.[11] They also emphasize that Rule 37(e) does not apply when a party loses information despite reasonable preservation efforts.[12] Finally, the Committee Notes explore the distinction between independent common law or statutory duties to preserve information and the obligations triggered under New Rule 37(e).[13] Litigants attempting to evaluate the sufficiency of preservation efforts should reference these notes in addition to the existing case law.

Rules 55 and 84

Rule 55, governing default judgments, has also been amended to clarify the difference between entry of default and entry of a final judgment. An entry of default that does not dispose of all issues in the case may be set aside for good cause under New Rule 55. If, on the other hand, an entry of default results in a final judgment under Rule 54, such a judgment can be set aside only under the standards of Rule 60. Finally, Rule 84 has been amended to abrogate the appendix of forms.

Conclusion

The 2015 Amendments to the Federal Rules may very well reinvigorate many preexisting standards for the conduct of discovery in federal courts. While many contend that the amendments to Rule 26 will spawn considerable motions practice, others argue that the amendments will ultimately help streamline the discovery process. Other developments, such as the new framework for sanctions under Rule 37(e), will provide the court with additional tools to deal appropriately with failure to preserve ESI.


[1] 2015 Committee Notes, supra note 4 at 34.

[2]. Id.

[3]. Id. at 38.

[4]. New Rule 34(b)(2)(B).

[5]. Id. at 43, 47.

[6]. Id.

[7]. Id. at 44.

[8]. New Rule 37(e)(2).

[9]. New Rule 37(e)(2)(A), (B), and (C).

[10]. 2015 Committee Notes, note 4 at 44.

[11]. Id. at 39-41.

[12]. Id. at 41.

[13]. Id. at 40 (“The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation, and the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case.”).


Bill Groh is an experienced commercial litigator who has represented individuals and small businesses in a variety of fields since 2005. Mr. Groh frequently handles matters involving both intellectual property and commercial litigation issues, including trademark infringement, copyright infringement, trade secret infringement, civil disputes involving breach of contract, business partnerships, allegations of breach of fiduciary duty, conversion, civil theft, actions for dissolution of partnership interest, and other such disputes that are increasingly common in modern business.

The 2015 Amendments to the Federal Rules of Civil Procedure (Part 2 of 3)

Bill_Groh

Editor’s Note: This is Part 2 of a three-part series discussing the 2015 changes to the Federal Rules of Civil Procedure. Part 1 discussed the changes to Rules 1, 4, and 16, and is available here. Part 3 will discuss the changes to Rules 30, 31, 33, 34, 37, 55, and 84. 

By William C. Groh, III

Rule 26

The changes to Rule 26(b)(1), which governs the scope of discovery, have generated considerable controversy and debate. The amended rule introduces two main changes. First, it does away with the “reasonably calculated to lead to the discovery of admissible evidence” language while clarifying the definition of “relevant information” in relation to the proper scope of discovery.[1] Second, the amended rule emphasizes that discovery must be “proportional to the needs of the case,” introducing a six-factor test by which the courts must determine proportionality.[2]

Redefining “Relevance”

The “relevance” standard under New Rule 26(b)(1) is narrower and more streamlined than in the prior rule. While Prior Rule 26(b)(1) allowed for discovery relevant to any claim or defense,[3] it also allowed for discovery of “any matter relevant to the subject matter involved in the action” upon a showing of good cause. It provided that “relevant” information need not be admissible “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”[4] New Rule 26(b)(1) is more restrictive. It does away with the “relevant to the subject matter” and “reasonably calculated” standards. The new rule requires that discovery be “relevant to any party’s claim or defense.” Discovery fitting this relevance criterion “need not be admissible in evidence to be discoverable.”[5]

The elimination of the “reasonably calculated to lead to the discovery of admissible evidence” language is technically less substantive than it may seem. The Committee Notes point out that the wording of Prior Rule 26(b)(1) has caused practitioners to cite the “reasonably calculated” language as the general standard for the scope of discovery instead of the true “relevance” standard.[6] The Committee Notes emphasize that the appropriate scope is “relevance” to claims and defenses, and New Rule 26(b)(1) removes the “reasonably calculated” language to prevent further confusion.[7]

New Rule 26(b)(1) also no longer permits discovery that is merely “relevant to the subject matter involved in the action,” even on a showing of good cause.[8] Discovery under the new rule must be “relevant to any party’s claims or defense,” but what does that mean in practice? The Committee Notes cite illustrative examples including “other incidents of the same type, or involving the same product”; “information about organizational arrangements or filing systems”; and “information that could be used to impeach a likely witness.”[9] The Federal Rules Advisory Committee first introduced these examples in the Committee Notes to the 2000 amendments to Rule 26. The Committee Notes to the 2000 amendment acknowledge that a bright-line rule distinguishing “relevance to claims and defenses” from “relevance to subject matter” is not practical, given the case-specific nature of the criteria.[10]

New Rule 26(b)(1) also no longer expressly describes the scope of discovery as including “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”[11] This change is cosmetic. As the Advisory Committee explains, “[d]iscovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples.”[12]

The above changes refocus the scope of discovery on relevance to claims and defenses. These changes make it more likely that courts will sustain objections to discovery of subject matter that is not in itself “relevant” to the parties’ claims and defenses as expressed in the pleadings.

The Six-Factor “Proportionality” Test

Possibly the flagship feature of the 2015 amendments to Rule 26, New Rule 26(b)(1) requires that, in addition to being relevant, discovery be “proportional to the needs of the case.” The New Rule also sets out six factors that guide the determination of “proportionality”:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Many public commentators have expressed both optimism and concern about the “new” requirements that the proportionality test would impose on litigants and the courts. Opponents argued that a formal proportionality test would make discovery more difficult by imposing a new layer of motions practice over “proportionality” in every case. As one commentator wrote:

I strongly oppose the amendment to Rule 26(b) injecting a proportionality test into the Rules. Under the current Rules, many of my adversaries routinely include boilerplate objections in to their responses to virtually every discovery request that I send. If this proposed change is adopted, I am confident that those boilerplate objections will be joined by an objection that the discovery requests are not proportional to the needs of the case. This, in turn, will generate unnecessary litigation over proportionality every time that a new discovery request is served.[13]

Other commentators expressed optimism about the changes. As one supporter wrote:

This change would provide a significant improvement compared to the overbroad scope of discovery defined by current Rule 26(b)(1) by reducing the costs and burdens in discovery practice. In addition, I support moving the proportionality language presently found in Rule 26(b)(2)(C)(iii) to 26(b)(1). This modification would remind parties that the principle of proportionality applies to all discovery and would encourage parties and judges to focus on what discovery should mean to each individual case.[14]

In addressing these and other comments, the Advisory Committee emphasized that Rule 26 already includes most of the above “proportionality” requirements.[15] Indeed, the only new factor is “the parties’ relative access to relevant information.” Other proportionality factors found in the old version of 26(b)(2)(C) include (1) analysis of the burden imposed by the discovery versus its likely benefit, (2) the importance of the issues at stake, (3) the amount in controversy, (4) the resources of the parties, and (5) the importance of the discovery in resolving the issues. In other words, the “proportionality” test does not introduce an altogether “new” standard so much as it re-emphasizes and re-prioritizes existing standards. The amended criteria are designed to refocus norms of discovery practice by giving existing proportionality requirements more conspicuous treatment in the rules.

The proportionality test found in New Rule 26(b)(1) borrows much of its language from Prior Rule 26(b)(2)(C), which allowed the courts to limit discovery upon a determination that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Prior Rule 26(b)(1) subjected the scope of discovery to the “limitations imposed by 26(b)(2)(C)” but only incorporated the limiting language by reference. The new rule expressly imports this language from Prior Rule 26(b)(2)(C) and places it “front and center” in Rule 26(b)(1).

The Committee Notes describe the above changes as a re-emphasis of current standards, stating:

The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections. Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.[16]

Something old, something new. For better or for worse, commentators generally agree that, by putting the question of proportionality front and center, disputes over proportionality will likely increase motions practice as the new rule takes effect. The Tenth Circuit did not require courts to make formal findings applying the proportionality factors as they existed under the old rules.[17] Courts and litigants generally did not systematically apply these factors in discovery or related motions practice. As the District of Maryland observed:

Despite the obvious utility of the [Prior] Rule 26(b)(2) factors in tailoring discovery to accommodate fair disclosure without imposing undue burden or expense, they have tended largely to be ignored by litigants, and, less frequently than desirable, used by the courts, sua sponte, to manage discovery. Instead, particularly with respect to disputes involving Rule 33 and Rule 34 discovery, the focus of the litigants tends to be the party seeking discovery’s perceived “right” to all information relating to the broad “subject matter” of the litigation, without any reflection as to the real usefulness of the information sought, or the burden or expense required to produce it, countered by the party resisting the discovery’s unparticularized claims of burden, expense, irrelevance, and privilege.[18]

It is therefore important to consider how courts might formally apply the six criteria as a group in the context of determining whether challenged discovery meets the proportionality requirements of the new rule.

Factor 1: importance of the issues at stake. The Rules Committee deliberately chose “the importance of the issues” as the first of the six factors, placing it before even “the amount in controversy.” The Committee made this decision to emphasize that the amount in controversy does not trump issues of substantive justice.[19] What constitutes an “important issue,” however, remains open to question. The Advisory Committee cites the earlier 1983 Committee Note, which discussed this concept in terms of “vitally important personal or public values,” stating:

The 1983 Committee Note recognized “the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.” Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.[20]

The placement of “importance of the issues” before “amount in controversy” was also in response to comments strongly objecting to a prior version of the amendment that placed “amount in controversy” first. As one attorney warned, “[f]ew of our cases are likely to garner in excess of six figures, so putting ‘the amount in controversy,’ before ‘the importance of the issues at stake,’ spells the death knell for employment litigation.”[21]

Other comments questioned the wisdom of requiring judges to evaluate the “importance” of some cases over others. As one commentator noted:

One judge will assess the “importance of the issues at stake” vastly differently from another or perhaps even differently than the judge himself might on another day (for reasons initially described in Judge Jerome Frank’s “Courts on Trial,” but that are becoming more well-documented through studies of decision-making based on “implicit biases” or “blind spots”). Judges—like all humans—are likely to value issues with which they have experience over issues with which they have little or no experience. Justice Thurgood Marshall presumably would place greater value on civil rights issues based on his legal background; Justice Tom Clark, who he replaced, presumably would place greater value on national security issues and corporate fraud or antitrust issues based on his experiences. . . .[22]

Nonetheless, New Rule 26(b)(1) provides potential ammunition for those seeking discovery in cases implicating important policy questions, even if the amount in controversy is relatively small. On the other hand, the “importance of the issues” criterion could pose an obstacle in cases involving small amounts in controversy, high discovery costs, and garden-variety legal issues.

Factor 2: the amount in controversy. This criterion is relatively straightforward, though not uncontroversial. Cases involving low amounts in controversy implicitly mandate a more streamlined approach to discovery, lest the parties spend more than the case’s monetary value on costly discovery issues.

Consideration of the amount in controversy invites analysis of the costs of the proposed discovery. An amount in controversy of $20,000 would theoretically weigh against allowing a discovery request that would cost $20,000 to comply with. On the other hand, what if the discovery costs are high because the responding party’s records are disorganized or difficult to search?

One may expect courts to tackle this problem by assessing whether the responding party’s asserted costs are reasonable under the circumstances. However, with information storage and retrieval technology rapidly changing even from year to year, it would be difficult for the courts to develop objective metrics that would keep pace with changing technology.

Factor 3: parties’ relative access to relevant information. As the “new factor” in the equation, the Advisory Committee Notes describe “Relative Access” as an attempt to address the problem of “information asymmetry.” As the Committee Notes point out:

One party—often an individual plaintiff—may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.[23]

This factor therefore deals with whether the party seeking discovery has reasonable access to the information requested by other means. Even if the requesting party technically has other means of access, this factor may still favor discovery if the producing party can produce the requested information quickly and easily.

Factor 4: the parties’ resources. While New Rule 26(b)(1) requires consideration of the parties’ resources, the Advisory Committee has cautioned against an overuse of this factor in limiting or allowing discovery. Citing prior Committee Notes on the subject, the Committee Notes state:

[C]onsideration of the parties’ resources does not foreclose discovery requests addressed to an impecunious party, nor justify unlimited discovery requests addressed to a wealthy party. The 1983 Committee Note cautioned that “[t]he court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.”[24]

Where the parties’ resources are a factor, a protective order under New Rule 26(c)(1)(B), which explicitly provides for the allocation of expenses, can also shift the costs of producing the discovery in appropriate cases.

Factor 5: the importance of the discovery in resolving the issues. The “importance” factor requires assessment of the degree to which the discovery is necessary to prove a claim or defense. Courts analyzing this factor may consider the discovery’s relevance to a claim or defense as well as whether the issues implicated are central to the case.[25]

Factor 6: whether the burden or expense of the proposed discovery outweighs its likely benefit. While much case law currently addresses the cost-benefit analysis of discovery, the Committee Notes also point out that this analysis should consider the ever-evolving capability of electronic search methods, stating:

The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.[26]

These comments make clear that the relevance of today’s arguments about burden and expense may change significantly as new means of search and retrieval of ESI become commonplace.

This factor is also controversial. While it may limit unnecessarily burdensome discovery, commentators have expressed concern that “burdensomeness” arguments provide opportunities for gamesmanship. Comments submitted by the American Association for Justice cautioned that “this factor upends the incentives for defendants to preserve documents in an easily accessible format and encourages them to ensure that discovery will be too expensive or difficult to retrieve.”[27] On the other hand, the courts have been and remain equipped to compel important discovery if it finds a party’s alleged “burden” in producing the discovery appears to be self-inflicted.[28]

Other considerations regarding the proportionality test. Some public commentators have expressed concern that the “proportionality” test will burden the party seeking discovery with demonstrating proportionality.[29]

The Committee Notes imply a shared burden to demonstrate (or refute) proportionality, pointing out that the proportionality test “does not place on the party seeking discovery the burden of addressing all proportionality considerations,” and is not intended to “permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” [30]

While courts have not yet interpreted the “shared” burden to demonstrate proportionality, existing case law suggests that each party will be required to present facts within their possession in objecting to or compelling discovery.

As the District of Colorado has observed:

When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. . . . However, when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.[31]

Shifting the cost of discovery. Rule 26(c)(1)(B) has also been amended to recognize expressly the court’s authority to allocate discovery costs as part of a protective order. Such orders may be especially useful in cases in which the parties cannot agree on proportionality. Depending on the circumstances, a party may seek a cost-shifting protective order as a way to resolve controversies over the burdensomeness of particular requests.

Early discovery requests and discovery sequencing. New Rule 26(d)(2) allows parties to deliver Rule 34 production requests ahead of the Rule 26(f) conference. Under the new rule, responses are not considered served until the conference occurs. Responses are due within 30 days (not 33)[32] after the conference. The new rule allows the parties to stipulate or move the court for longer deadlines. Finally, New Rule 26(d)(2) allows the parties to stipulate as to the sequence of discovery without requiring a motion or court order.


 

[1]. See New Rule 26(b)(1).

[2]. Id.

[3]. Prior Rule 26(b)(1).

[4]. See id.

[5]. See New Rule 26(b)(1).

[6]. 2015 Committee Notes, supra note 4 at 24.

[7]. Id.

[8]. See New Rule 26(b)(1).

[9]. 2015 Committee Notes, supra note 4 at 23.

[10]. Fed.R.Civ.P. 26 at Committee Notes to 2000 Amendment. The 2000 Committee Notes emphasize that “[t]he dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision,” and caution that the relevance of particular information to the case “depends on the circumstances of the pending action.”

[11]. New Rule 26(b)(1).

[12]. 2015 Committee Notes, supra note 4 at 23.

[13]. Comment from Allan Karlin, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2171.

[14]. Comment from Gregory Grisham, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2218.

[15]. See 2015 Committee Notes,  supra note 4 at 19.

[16]. Id.

[17]. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1194 (10th Cir. 2009) (finding that Fed.R.Civ.P. 26(b)(2)(C)(iii) does not require a formalistic and detailed balancing of the factors listed therein.).

[18]. Thompson v. Department of Housing and Urban Development, 199 F.R.D. 168, 171 (D.Md. 2001).

[19]. 2015 Committee Notes, supra note 4 at 17.

[20]. Fed.R.Civ.P. 26 at 1983 Amendment Committee Notes.

[21]. Comment from Suzanne Tongring, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-1908.

[22]. Comment from J. Byran Wood, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2112.

[23]. 2015 Committee Notes, supra note 4 at 20-21.

[24]. 2015 Committee Notes, supra note 4 at 22.

[25]. See, e.g., In re Cathode Ray Tube (CRT) Antitrust Litigation, 301 F.R.D. 449, 455 (N.D.Cal., 2014.)

[26]. 2015 Committee Notes, supra note 4 at 22.

[27]. Comment from American Association for Justice President J. Burton LeBlanc (submitter Richard Williger), www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2046.

[28]. See, e.g., Foster v. Logan’s Roadhouse, Inc., 2013 WL 1498958, at *4 (N.D.Ala. 2013) (“Even so, plaintiff should not be prevented from obtaining necessary discovery simply because defendant has chosen to maintain its records in a manner that makes searches difficult and time-consuming. Overall, the importance of the discovery to plaintiff outweighs defendant’s burden in producing it.”).

[29]. See, e.g., Comment from John Vail, Center for Constitutional Litigation, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-0199 (“Instead of a requesting party being entitled to information unless the opposing party shows disproportionality, a requesting party now would be entitled to information only upon affirmatively demonstrating proportionality.”).

[30]. 2015 Committee Notes, supra note 4 at 43.

[31]. Bonanno v. Quizno’s Franchise Co., LLC, 255 F.R.D. 550, 552 (D.Colo. 2009).

[32]. Because New Rule 16 deems the Rule 26(f) conference to constitute “service” of a previously delivered Rule 34 request, the “service” was not accomplished by the prior delivery of the requests. As such, delivery of a Rule 34 Discovery Request by electronic means prior to the Rule 26(f) conference should not trigger the time extending provisions of Fed.R.Civ.P. 6(d) that would apply if the requests were electronically served after the Rule 26(f) conference.


Bill Groh is an experienced commercial litigator who has represented individuals and small businesses in a variety of fields since 2005. Mr. Groh frequently handles matters involving both intellectual property and commercial litigation issues, including trademark infringement, copyright infringement, trade secret infringement, civil disputes involving breach of contract, business partnerships, allegations of breach of fiduciary duty, conversion, civil theft, actions for dissolution of partnership interest, and other such disputes that are increasingly common in modern business.

The 2015 Amendments to the Federal Rules of Civil Procedure (Part 1 of 3)

Bill_Groh

Editor’s Note: This is Part 1 of a three-part series discussing the 2015 changes to the Federal Rules of Civil Procedure. Part 2 will discuss the changes to Rule 26 and Part 3 will discuss the changes to Rules 30, 31, 33, 34, 37, 55, and 84. 

By William C. Groh, III

New and important changes to the Federal Rules of Civil Procedure (Federal Rules) took effect on December 1, 2015 and apply to all newly filed cases as well as currently pending cases “insofar as just and practicable.”[1] The changes affect Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84. They deal primarily with the scope of discovery, case management, and preservation of electronically stored information (ESI). The amendments generally reflect an effort to refocus litigants’ ongoing obligation to conduct discovery efficiently and in appropriate proportion to the needs of the case at issue. The redline version of the 2015 amendments, with committee notes, is available for download at www.uscourts.gov/file/18481/download.

Rule 1

Rule 1 previously was a rule of construction that required the courts to administer the Federal Rules to ensure “the just, speedy, and inexpensive determination” of civil actions.[2] The wording placed responsibility on the courts. New Rule 1 expressly requires the courts and the parties to construe, administer and employ the Federal Rules to achieve these goals.[3]

Rule 4

Rule 4 has changed to provide a mandatory form to be used for requesting waiver of service. Prior Rule 4 contained an example waiver form but permitted other formats as long as they followed the rule’s substantive requirements. The waiver of service form provided with New Rule 4 is now mandatory. The Rule 4 form can be downloaded at www.cod.uscourts.gov/Portals/0/Documents/Forms/CivilForms/notice-n-waiver-of-serv-summons.pdf.

Rule 16

The amendments to Rule 16 are designed to encourage speedier scheduling and greater court involvement in ensuring the preservation of ESI. New Rule 16(b)(1)(B) does away with the provision allowing communication by “telephone, mail, or other means” to substitute for a Rule 16(b) scheduling conference. The parties and the court must engage in direct simultaneous communication, either in person, by telephone, or by other means.[4]

New Rule 16 shortens the deadline for the court to issue its scheduling order. While the deadline was 120 days under Prior Rule 16, New Rule 16 requires the court to issue the court scheduling order within 90 days after service of the complaint or 60 days after the appearance of any defendant. The court may extend this deadline upon a finding of good cause.

Prior Rule 16(b)(3)(B) included a list of items for consideration in entering the court scheduling order. New Rule 16(b)(3)(B) adds to this list, providing that the court may also include protocols for preservation of ESI. This change is apropos considering the changes to Rule 37 governing sanctions for failure to preserve ESI, discussed below. The new rule also permits the court to add agreed protocols for dealing with the disclosure of privileged information under FRE 502, and to require the parties to request a conference before the court before filing discovery motions. In light of these new items, Rule 26(f)(3) has also been changed to require the parties to address these issues at their Rule 26(f) conference.

 


[1]. See J. Roberts order adopting amendments subject to congressional approval at 15 (April 29, 2015), www.uscourts.gov/file/document/congress-materials,  P. 15 (“the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”).

[2]. See Prior Rule 1. The prior rule required that the federal rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

[3]. New Rule 1.

[4]. Proposed Amendments to the Federal Rules of Civil Procedure (with Committee Notes) at 7, www.uscourts.gov/file/18481/download (2015 Committee Notes).


 

Bill Groh is an experienced commercial litigator who has represented individuals and small businesses in a variety of fields since 2005. Mr. Groh frequently handles matters involving both intellectual property and commercial litigation issues, including trademark infringement, copyright infringement, trade secret infringement, civil disputes involving breach of contract, business partnerships, allegations of breach of fiduciary duty, conversion, civil theft, actions for dissolution of partnership interest, and other such disputes that are increasingly common in modern business.

Top Ten Law Practice Management Programs and Homestudies

The year is almost over, and with it the compliance period is ending for many Colorado attorneys. As we draw to a close with our review of the Top Ten Programs and Homestudies in several substantive practice areas, we wanted to include something important to practitioners across all fields of law—law practice management and legal writing. Colorado CLE offers law practice management and legal writing programs throughout the year, including classes on how to use Adobe Acrobat in a law practice, analyzing financial statements, conducting online research, and much more. Read on for the Top Ten Law Practice Management Programs and Homestudies.

10. Essential Legal Research Methods and Resources for Colorado Lawyers. Legal research in a university setting often involves analyzing a long-standing legal issue with well-established outcomes. Research in practice, however, can focus on cutting edge and messy legal issues where the law is only starting to emerge, with conflicting and ethical issues. This program provides advanced techniques for finding and analyzing primary and secondary law sources, free legal research, and more. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Drafting Complex Legal Documents with Microsoft Word. This program, taught by nationally renowned speaker Barron Henley, features tips and tricks to create, share, automate, and manage electronic documents. Learn about Word’s style features, simple automation techniques, file organization, keeping documents secure while allowing comments, and more. Seven general credits, including one ethics credit; available as DVD homestudy and Video OnDemand.

8. Legal Writing in the Smartphone Age. Gone are the long, flowing emails messages with pretty graphics and lots of attachments. Today’s communication — almost 100% electronic — is immediate, brief, clear, and powerful. Designed to boost your instant or near-instant message-drafting skills, this practical half-day program will teach you how to draft clearer and more effective emails, court documents, and memoranda. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Accounting and How to Understand and Analyze Financial Statements. There are financial issues involved with every type of law practice and it is your duty to possess the skills and knowledge necessary to handle those issues effectively.  This detailed program will provide you with the financial literacy required to protect yourself and your clients through your understanding of accounting concepts, terminology, and financial statements. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. iPad for Legal Professionals — Basics and Advanced. These two half-day programs provide useful tips for using iPads in a law practice. The first half covers “must-have” apps that should be on every lawyer’s iPad and tackle important security settings and how-to’s on loading documents and printing. The second half answers more advanced questions, like “How can you do legal research on the iPad? How do you give a presentation on the iPad? Do you need to buy a keyboard or stylus?” Four general credits each; available as DVD homestudy (Basics/Advanced) or Video OnDemand (Basics/Advanced).

5. Better Motion Practice — How to Argue, Present, and Write Motions More Effectively. This program is designed for lawyers who want to sharpen their skills. It provides a practical overview of various kinds of motions likely encountered in pre-trial civil practice. Specific techniques, skills, and methods for persuading the court and decision-makers are covered. The program will generally reference state and federal rules of procedure and evidence. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. The Art of Communication. Being a lawyer means being an effective communicator. Yet, in an increasingly electronic age, what is effective communication and how do we measure our own effectiveness in keeping our clients informed as to complex issues, guiding them in making difficult decisions, and speaking on their behalf to others? This half-day interactive seminar is designed to explore in depth the art of strategic communication by introducing participants to theories and specific practice tips concerning improved written and electronic communications. Four general credits; available as MP3 audio download and Video OnDemand.

3. How to Become Your Own Cybersleuth: Conducting Effective Internet Investigative and Background Research. In this fast-paced investigative research seminar, you will learn to create more effective Internet searches to locate information crucial to your matters, which you might otherwise miss. We will reveal hidden Google search features and shortcuts to speed up your research. You will also learn to use free public record sites and sites with free “publicly available” information (including social media sites), for discovery, trial preparation, background checks, and for locating missing persons. Discover the advantages (and limitations) of data broker databases. Each homestudy comes with a copy of the book, The Cybersleuth’s Guide to the InternetSeven general credits; available as live Video Replay in Denver on January 5, 2016, or as CD homestudy.

2. Hanging Your Shingle 2015: Hardware. Software. Anywhere You Go. In this intensive two and a half day course, you will get the tools, information and building blocks you need to confidently open the doors to your new firm. If you believe you can’t afford to venture out on your own, is it time to ask yourself if you can afford not to? Eighteen general credits, including 7.9 ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

1. Preventing Legal Malpractice. Each year, CLE presents two Preventing Legal Malpractice programs: one directed at transactional attorneys, one directed at litigation attorneys. In addition to the printed materials, each attendee receives a copy of CLE’s book, Lawyers’ Professional Liability in Colorado. For 2016, there will be Preventing Legal Malpractice programs in Denver on March 11 and in Colorado Springs on March 17. Registration is not yet open, but save the dateFour general credits, including four ethics credits. NOTE: This program is repeated annually. Click here for the 2015 programs (transactional/litigation) and click here for the 2014 programs (transactional/litigation).

Jeena Cho: What to Do When Everything Sucks

Editor’s Note: This post originally appeared on Above the Law on September 28, 2015. Reprinted with permission.

Jeena_ChoBy Jeena Cho

Most of us have experienced moments where everything just sucks. This can range from minor irritations such as standing behind the a**hole with 32 items in the express checkout line at the grocery store when the sign clearly says 12 item maximum, to major heartbreaks such as a loved one dying.

There’s a whole body of research that shows happiness or satisfaction with life has very little to do with external events and everything to do with how we interpret or perceive an event.

Shawn Achor, one of my favorite Harvard researchers and authors, said in his TED talk:

[I]f I know everything about your external world, I can only predict 10% of your long-term happiness. 90 percent of your long-term happiness is predicted not by the external world, but by the way your brain processes the world.And if we change it, if we change our formula for happiness and success, we can change the way that we can then affect reality. What we found is that only 25% of job successes are predicted by IQ, 75 percent of job successes are predicted by your optimism levels, your social support and your ability to see stress as a challenge instead of as a threat.

Which brings me to what to do when life just feels sucky. I often work with lawyers who are really unhappy with their jobs. Many of them are Biglaw lawyers trying to find some semblance of balance or find meaning in their work. One attorney I worked with had a crazy managing partner who had a tendency to scream, throw things, and slam the door to his office so hard that frames fell off the wall. Understandably, working for a mentally unstable person like this can make every moment of the workday feel like hell.

Yet, the research shows that much of her misery isn’t caused by the horrible managing partner but rather her reaction to his behavior. When we really examined the situation, it turns out, she had minimal contact with this managing partner — a couple of hours or less per week. Yet, she spent an inordinate amount of time fearing and thinking about this person and what he might do next. Obviously, she can’t control his behavior, but shecan limit how much airtime he got in her own head.

Additionally, when we carefully examined each interaction she had with this partner, not all interactions were negative. He didn’t always throw things, he didn’t always yell. However, because humans are hardwired toward a negativity bias and use cognitive shortcuts, she simply labeled him as the-most-horrible-human-being.

The way we interpret and frame a situation makes a huge difference in the way we experience it. For example, last week, I had an early morning networking meeting with another attorney. I got up extra early and spent well over an hour driving 20 miles in rush hour traffic. As I parked the car, I dropped him an email to let him know I was running few minutes late. He responded and said, “Sorry, I thought my secretary contacted you. I had a work emergency. I can’t make it this morning.” Needless to say, I was not very happy. I could notice my body and mind fill with irritation, frustration, and anger. My mind also started making up stories about the situation — he clearly doesn’t respect me or my time, he’s totally irresponsible, and so forth.

In mindfulness practice, we are taught to accept each moment, as is, without preference and judgment. In that moment, as I noticed all these negative emotions, narratives, and reactions bubble up to the surface, I was able to remind myself that I have absolute control over how I am going to feel about this situation. I can either allow the anger and frustration to take over or I can change my perception.

As I walked into Yerba Buena Gardens, a beautiful park in the heart of San Francisco, I practiced being in the moment. I looked up at the clear blue sky and took in the view of the park. I also noticed groups of tourists stopping to take pictures and realized how fortunate I was to call this place home. I also saw the many homeless people sleeping on the grass and thought but for the grace of God, I could be in their shoes.

I noticed my mind’s preference that I’d rather be at home, enjoying the extra hour of sleep, but also realized that’s like crying over spilled milk. I was awake; I was already here. I also noticed my mind’s judgment around this person’s behavior but also recognized how I, too, have been guilty of mismanaging my calendar or having unavoidable scheduling conflicts.

I found a park bench and sat in the sun (which is rare in San Francisco) and simply took in the beauty of this city. I was grateful for having this unexpected hour of free time. Then I noticed a hummingbird flying above my head, going from one flower to another. I sat there in the park enjoying the sounds of the birds chirping, listening to the sounds of the water fountain, and noticing the energy change as the city started waking up. The hummingbird, as if noticing my mood, stopped right in front of my face, just a few feet away, hovering. It felt as though I was being embraced by life.

So, my invitation to you, my dear reader is this: remember that the ability to find happiness in each moment lies within you. Instead of looking at all the ways in which the moment isn’t perfect, ask yourself — what am I grateful for?

Finally, I’ll leave you with words of wisdom from Rumi:

Be empty of worrying.
Think of who created thought!

Why do you stay in prison
When the door is so wide open?

Jeena Cho is co-founder of JC Law Group PC, a bankruptcy law firm in San Francisco, CA. She is also the author of the upcoming American Bar Association book, The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law Practice Using Meditation (affiliate link), as well as How to Manage Your Law Office with LexisNexis. She offers training programs on using mindfulness and meditation to reduce stress while increasing focus and productivity. She’s the co-host of the Resilient Lawyer podcast. You can reach her at smile@theanxiouslawyer.com or on Twitter at @jeena_cho.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Associate’s Mind: Book Review — Writing to Win

keith-lee-birmingham-alabama-attorneyEditor’s Note: This post originally appeared on July 12, 2012, on Keith Lee’s blog, Associate’s Mind. Reprinted with permission.

CLE in Colorado is hosting two half-day programs presented by Writing to Win author Steven Stark; see below for registration information.

Roughly a month ago I received a review copy of Steven Stark’s Writing To Win. It’s taken this long for me to get the review up because A) I’ve been busy and B) I always fully read any book I receive and Writing To Win is long and dense – albiet in the all the best ways possible. Writing To Win now sits next to Ross Guberman’s Point Made as one of my favorite books on legal writing.

In my review of Point Made I stated:

Point Made is not an introductory level book. If you’re not familiar with basic legal writing, you might be better off starting somewhere else. But it might be the best technique oriented legal book I’ve ever read . . . Point Made is a tactical book. Point Made provides granular-level advice that can immediately be implemented in your writing.

Writing To Win is the introductory book I would hand anyone looking to learn about legal writing. If I were to design a legal writing course, it would be the course textbook.

Writing To Win’s strength is in its organization and clarity of purpose. Both of which are what Stark emphasizes again and again as fundamental tenant of strong legal writing. The book is broken into four section:

  1. The Fundamentals of Legal Writing
  2. The Fundamentals of Argument for All Lawyers
  3. Writing in Litigation
  4. Writing in Legal Practice

The first section, The Fundamentals of Legal Writing, begins with a focus on organization. It then moves into the actual construction of text. Like every other good book on legal writing in emphasizes core points:

  • Avoid legal jargon
  • Keep it short
  • Keep it simple
  • Write for the reader, not for yourself

But Stark lays it out in a very effective way. Each topic is broken down, examined, then placed into context of the the larger purposes of legal writing. Each topic also flows directly into the next one while building on top of the previous material. It’s masterfully done – the text is a perfect example of the type of writing Stark is discussing.

The second section, The Fundamentals of Argument for All Lawyers, takes a very different approach to crafting legal arguments than I imagine is taught in most law schools. For example this section:

So any time you compose an argument . . . my advice would be to do enough research first to get a general sens of the law. No matter how complex the matter, this research should never take more than an hour or so. Then put all you research aside ask yourself, if I had to explain to a judge, or another lawyer, or a client why we should win without resorting to any precedent or law, what would I say? In laymen’s terms, why are we right? Then write those reasons down. . .

Outline the argument, research it later.

Which I have found to be an excellent tool in my own writing. It’s just a shame that I had to come to it on my own and was not taught it in law school. I was also pleased to see that Stark gave heavy emphasis to the advertising industry. Like I stated in my post about the writing blogs I follow, I think lawyers could gain a lot my studying the techniques the advertising industry uses to persuade consumers. It’s nice to see it echoed in Writing To Win. 

Also, Stark emphasizes the use of narrative in argument. A well constructed narrative is the difference between a slog of a brief and one that pulls the reader along. Stark quotes Chief Justice John Roberts in this section, which makes the point most succinctly:

Every lawsuit is a story, I don’t care if its about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together – that’s a story. And you’ve got to tell a good story.

Sorry lawyers, you’ve got to be good authors too. But most of you probably secretly want to do that anyway.

The last two sections, Writing in Litigation and Writing in Legal Practice, provide detailed strategies for tackling a number of styles of legal writing. From affidavits to appeals, from memos to emails, Stark provides concrete methods for making smooth, organized, flowing language that should make the text easier to parse for readers. The sections are littered with tips like study a cookbook or board game to improve your technical writing (taking a complex set of rules and systems and explaining them in a way that anyone can understand). It’s too much to go into here, but it Stark does an excellent job covering the most common writing scenarios lawyers deal with day to day.

__________________

Earlier I stated that Writing To Win “is the introductory book I would hand anyone looking to learn about legal writing.” This not because the book is simple or a beginner level book – it’s because it is one of the clearest and most well organized books on legal writing I’ve had the pleasure to read. Any law student or new lawyer looking to brush up on their writing skills would do well to pick up this book. Highly recommended.

Worth noting, the Appendix of the book contains 8 General Rules for Professionalism in Legal Writing. The number one rule?

Never lie under any circumstance. 

Sometimes I think lawyers forget that.

Keith Lee is a lawyer in Birmingham, Alabama. He is the founder and editor-in-chief of Associate’s Mind, one of the most popular legal blogs in the US. Associate’s Mind has been linked to by the New York Times, the Wall Street Journal, Above the Law, ABA Journal, dozens of  blogs and websites, and has been featured as an Editor’s Pick at the Browser. It is frequently featured in the national newsletter, Technolawyer, and many of its articles were syndicated to LexisNexis. Associate’s Mind was selected as one of the “Blawg 100″ by the ABA Journal for 2011. Keith also writes a weekly column for Above The Law.

CLE in Colorado is hosting two half-day programs presented by Writing to Win author Steven D. Stark on October 1, 2015: “Legal Writing in the Smartphone Age” in the morning and “Writing to Win” in the afternoon. All attendees of the afternoon program will receive a copy of Writing to Win. To register, click the links below or call (303) 860-0608.

CLE Programs: Legal Writing in the Smartphone Age AND Writing to Win

These CLE presentations will take place Thursday, October 1, 2015 at the CLE offices. Click here to register for “Legal Writing in the Smartphone Age,” click here to register for “Writing to Win,” and click here to register for both programs. These programs are also available as webcasts.

The Colorado Lawyer: Suicide Prevention

LorenBrownEditor’s Note: This article originally appeared in the September 2015 issue of The Colorado Lawyer. Reprinted with permission.

By Loren M. Brown

World Suicide Prevention Day is observed every September 10 to promote global action to prevent suicide. Various events and activities are held to raise awareness that suicide—a major cause of premature death—is preventable.

Suicide and Lawyers

Lawyers are not immune to suicide. In fact, numerous recent studies about suicide make clear that lawyers experience depression and substance abuse at higher rates than the general population. As a result, lawyers are at a greater risk for suicide.

Suicide is a very difficult subject to talk about. This is even more the case in a profession where we are constantly on guard and attempting to maintain an air of strength with our clients, with opposing counsel, within our firms, and within the profession. However, now is the time to speak about this issue—and speak loudly. The fact that attorneys have one of the highest suicide rates among professionals can no longer be ignored.

Suicide touches us all, from line deputy district attorneys and public defenders to 17th Street corporate transactions attorneys to solo and small firm practitioners throughout the state. I have felt the impact of suicide in both my personal and professional life. As a child, I grew up with stories of relatives who found themselves in dark places they were unable to escape. In my practice, I have suffered the loss of clients, opposing counsel, and friends at their own hands.

Through all of these experiences, the question that continues to ring out is, “Why?”

Why would someone do this?
Why does it keep happening?
Why have we not done more to combat this within our profession?

There is no good reason to continue to ask this last question, but there is every reason to address it head-on now. It is time for us to take immediate steps toward preventing suicide from occurring within the profession.

Remove the Stigma

One of the first steps to addressing the problem is removing the stigma of suicide. This is a matter of perspective that can easily be overcome.

Following 9/11, there were many unnecessary funerals, brought on by the unnecessary tragedy. I was fortunate not to lose anyone close to me on that fateful Tuesday fourteen years ago. I suppose that is one of the benefits of being landlocked in Colorado and never venturing too far from home. Nonetheless, the events of that day shook me to the core. One horrific aspect of that tragedy that has continued to plague me was the images of people high up in the towers who were forced to step out into nothingness toward a certain fate, as opposed to waiting for a more horrible and fiery death. Searching for meaning in the face of those deaths brought no answers.

Months later, I heard (I think on NPR) the story of a eulogy for a person who had committed suicide, unconnected to 9/11. The eulogist discussed the stigma attached to suicide. He discussed the disbelief, shock, and anger of the family and friends left behind, the impolite rumors and whispers that follow the death, and the speculation and judgment about the reasons for the act.

He discussed the spiritual conflict felt by many survivors trying to mediate the feelings of loss of their loved one and bear the pain of a belief that the person must now suffer a form of eternal damnation as a result of the act. The eulogy compared death by suicide with death suffered by victims of 9/11—the former victim chose a known fate and the latter waited and suffered an unknown one. The eulogist went on to say that the person who had taken his own life was really no different from those who chose to jump out of the building rather than remain inside and burn. On 9/11, each person was in a horrified and desperate state, with the fire licking at their heels. Instead of staying to face the fire, they chose temporary freedom by stepping out into the air; yet, there is no stigma attached to those who jumped from the towers.

The eulogist concluded by saying that the death by suicide was no different. The person who had died was in the throes of intense personal struggles he felt he was unable to successfully battle, which forced him to the brink. The eulogist ended by stating, “God help me that I could not see the flames.”

There are fires licking at the heels of many of our colleagues. As members of the profession, it is our job to try harder to see the flames and to do all we can to help put them out. If we are to effectively fight and prevent suicide, we must adopt the perspective expressed in the eulogy above. It is often said that depression is not a sign of being weak, but a sign of having been strong for too long. We must take a stand together and commit ourselves to helping others be strong when they can no longer be strong on their own. We cannot let others be isolated. We need to be a resource to either provide them guidance or get them the help they need.

Know the Warning Signs

The warning signs for suicide range from seemingly subtle and common to open and obvious. It is important to know what they are. Here are many warning signs:

  • feeling hopeless
  • experiencing dramatic mood changes
  • feeling rage or uncontrolled anger or seeking revenge
  • acting reckless or engaging in risky activities—seemingly without thinking
  • feeling trapped—like there’s no way out
  • withdrawing from friends, family, and society
  • feeling anxious, agitated, or unable to sleep or sleeping all the time
  • increasing alcohol or drug use
  • seeing no reason for living or having no sense of purpose in life
  • threatening to hurt or kill oneself or talking about wanting to hurt or kill oneself
  • looking for ways to kill oneself by seeking access to firearms, available pills, or other means.

We should all be mindful of these warning signs, both in ourselves and in our colleagues.

Prevention

Prevention strategies do exist for suicide. The most effective strategy is to identify the warning signs of suicide and to take the signs seriously. Once these warning signs are identified, an individual struggling with depression and contemplating suicide should be encouraged to receive professional help. We also have to be willing to talk about suicide. We must increase professional and public awareness through dialogue and education to eliminate the stigma associated with suicide.

The National Suicide Prevention Helpline (www.suicidepreventionlifeline.org) recommends the following when someone is threatening suicide:

  • Be direct. Talk openly and matter-of-factly about suicide.
  • Be willing to listen. Allow expressions of feelings. Accept the feelings.
  • Be nonjudgmental. Don’t debate whether suicide is right or wrong, or whether feelings are good or bad. Don’t lecture on the value of life.
  • Get involved. Become available. Show interest and support.
  • Don’t dare the person to do it.
  • Don’t act shocked. This will put distance between you.
  • Don’t be sworn to secrecy. Seek support.
  • Offer hope that alternatives are available, but do not offer glib reassurance.
  • Take action. Remove means, such as guns or stockpiled pills.
  • Get help from individuals or agencies specializing in crisis intervention and suicide prevention.

Helpful Resources

If you believe a colleague may be at risk for suicide, encourage him or her to seek help. If you are facing these struggles yourself, it is important to know that you are not alone. There are people and resources available to help you during these difficult times.

A very good resource for lawyers is the Colorado Lawyer Assistance Program (COLAP). One of the most important aspects of COLAP is confidentiality. COLAP was established by Colorado Supreme Court Rule 254. Pursuant to Rule 254(6)(a), information and actions taken by COLAP are privileged and held in strictest confidence and will not be disclosed or required to be disclosed to any person or entity outside COLAP, unless disclosure is authorized by the member. COLAP will not release any information without a signed release. Therefore, when a person contacts COLAP (whether a person is calling for himself or herself or to express concern about a colleague), the interaction will remain confidential.

COLAP provides assistance for any career challenge that interferes with the ability to be a productive member of the legal community, including but not limited to: practice management, work/life integration, stress/anger management, anxiety, depression, substance use, and relationship issues. COLAP provides referrals for a variety of personal and professional issues, assistance with interventions, voluntary monitoring programs, supportive relationships with peer volunteers, and educational programs. More information on COLAP can be found at www.coloradolap.org.

Take a Minute to Help Others and Yourself

If you are an attorney reading this article and feel as though you need support regaining strength, I encourage you to reach out to a friend or to COLAP. If you are an attorney and begin to see the signs of someone facing or nearing this struggle, take the time to reach out to that person.

Take a minute to help yourself or someone else. Take a minute to ask for help. Take a minute to connect with an old friend. Take a minute to ask how others are doing. Take a minute to listen (and really care) about the response. It may take only a minute to save a life.

Loren M. Brown is a founding shareholder with Ciancio Ciancio Brown, P.C. His practice is focused 100% on litigation, providing representation along the Front Range, and throughout the State of Colorado. Loren focuses on Wrongful Death and Personal Injury, Criminal Defense (ranging from traffic violations to homicide), Liquor Licensing, and Commercial Litigation. Loren is also actively involved in the Colorado Bar Association. Currently, Loren serves as the President of the Colorado Bar Association focusing his term on young lawyer involvement in the bar association, access to justice, and improving the image of lawyers.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

10 iPad Apps for Use in the Office and the Courtroom

PrintThink of the first courtroom you were ever in. Was there a flip chart? An easel? A projector and slides? Or was there a sophisticated plasma TV screen and electronic system so attorneys could showcase their best evidence through their tablets? That last example may not have appeared in your first courtroom, but it certainly is becoming a common sight today.

Attorney Jason Márquez of Johnson Márquez Legal Group uses an iPad in every courtroom presentation where the judge allows it. Using apps like Adobe, Evernote, and Pocket Scan, he can create a compelling courtroom presentation to highlight favorable evidence while minimizing costs associated with photocopying and creating exhibit notebooks. Márquez believes so strongly in using iPads in his practice that he provides them to every member of his firm. He uses several apps, but suggests these ten apps as must-haves for office use and courtroom presentations:

  1. Adobe Acrobat® is multi-platform, PDF solution that allows you to work with all kinds of documents to: View, Create, Manipulate, Print, Combine files.
  2. GoodReader® is the super-robust PDF reader for iPad, iPhone and iPod touch. Sync with Dropbox, OneDrive, any FTP or SFTP server. Sync entire folders or individual files separately.
  3. DropBox® is a folder on your computer that synchronizes your files online and across computers. Any files you place within it will be available on your other computers with Dropbox, as well as the web.
  4. Evernote® is designed for note-taking and archiving. A “note” can be a piece of formatted text, a full webpage or webpage excerpt, a photograph, a voice memo, or a handwritten “ink” note. Notes can also have file attachments.
  5. Pocket Cloud® is a secure and fast way to remotely connect to your Mac or Windows desktop with your iPad, iPhone, iPod touch, or Android device no matter where you are. Access your files, pictures, and applications like Excel, Powerpoint, Photoshop, games or any other program.
  6. Tiny Scan® turns your iPhone/iPad into a portable scanner. Scans are saved to your phone as images or PDFs. Name and organize your scans into folders, or share them by: Email, Dropbox, Evernote, DropBox, Wi-Fi to your computer, Fax (using TinyFax).
  7. Dragon® Dictation is an easy-to-use voice recognition application powered by Dragon® NaturallySpeaking® that allows you to easily speak and instantly see your text or email messages. In fact, it’s up to five (5) times faster than typing on the keyboard.
  8. Prezi® is a presentation tool that can be used as an alternative to traditional slide making programs such as PowerPoint or Keynote. Instead of slides, Prezi makes use of one large canvas that allows you to pan and zoom to various parts of the canvas and emphasize the ideas presented there.
  9. Casemaker® is an alternative legal research tool to LexisNexis and Westlaw. It allows users to search and browse a variety of legal information such as statutes, regulations, and case law on the Web. Casemaker comes free with your CBA membership!
  10. JuryPad® assists with voir dire in different jurisdictions. Create custom seating charts for any courtroom. Add or modify a juror’s information including age, occupation, education, prior jury service, and much more.

Márquez will present on “The iPad Advantage” at the 2015 Colorado Legal & Technology Expo on Friday, August 21, 2015 at the Warwick Hotel in downtown Denver. Entrance to the Expo is free, and Márquez’s CLE program is only $19 for CBA members. Join us at the Warwick on Friday and learn how you can increase your productivity—and your bottom line.

2015 Colorado Legal & Technology Expo

The 2015 Colorado Legal & Technology Expo will take place on Friday, August 21, 2015 at the Warwick Hotel in Denver. Entrance to the Expo is free. Each 50-minute CLE program is $19 for CBA members and $39 for non-CBA members. Register for the event and find more information here.

5 Components of a Great Business Plan

HYS2015Have you ever wanted to start your own law firm? It can be a great way to practice in the areas you’re especially interested in while controlling your time and caseload. However, many lawyers are unsure about the business side of running a law business. Accounting, personnel issues, technology—there is a lot more to think about than simply your preferred practice area.

Our three-day institute, “Hanging Your Shingle,” can help. Learn about the ins and outs of running a law practice from successful solo and small firm attorneys. Some of the topics to be covered at this year’s institute include “Writing Your Business Plan,” “Trust Account Management and Fee Agreements,” “Marketing and Business Development,” “Technology: Your First Partner,” and more.

Qusair Mohamedbhai and Siddhartha Rathod of Rathod Mohamedbhai LLC will present “Writing Your Business Plan.” These partners know first-hand the keys to succeeding at a small practice, and appreciate the opportunity to share their experience with attorneys just beginning their own firms. Among other topics, they will discuss these five components of a great business plan:

  1. Executive Summary – explains what the firm does, establishes goals, creates a mission statement, and elucidates milestones
  2. General Company Overview – provides a glimpse into what makes your firm unique and offers detailed attorney biographies
  3. Industry Analysis – this is an important part of the business plan that examines area demand and crucial details such as price, location, experience, and competition
  4. Financial Plan – also a very important part of a great business plan, the financial plan sets expense and revenue projections and determines profit margins
  5. Marketing Strategies – marketing is key to continuing your successful business, including referrals, traditional marketing, word of mouth, and more

Listen to Mohamedbhai and Rathod speak at “Hanging Your Shingle” this week. Call us at (303) 860-0608 or click the links below to register.

CLE Program: Hanging Your Shingle

This CLE presentation will take place from Thursday, August 20, 2015 through Saturday, August 22, 2015 at the CLE offices. Click here to register for the live program and click here to register for the webcast..

Can’t make the live program? Order the homestudy here – Video OnDemand – MP3

 

New Pretrial Rules for Civil Cases—What Is Changed (Part 2 of 2)

Editor’s Note: This article originally appeared in the July 2015 issue of The Colorado Lawyer. This is the second half of the article; click here for the first half. Reprinted with permission.

DickHolmeBy Richard P. Holme

Rule 16.1—Simplified Procedure

Rule 16.1(f) and (h)—Case Management Orders and Certification of Compliance. The amendments to Rule 16.1 regarding simplified procedure are minimal, but provide another incentive to use that method of dealing with lawsuits under $100,000.[1] Sections 16.1(f) and (h) incorporate by reference some provisions from Rule 16. Because some of the incorporated provisions of Rule 16 have been renumbered, the corresponding provisions in Rule 16.1 have been renumbered to remain consistent. The significant change in Rule 16.1 is that the parties under Simplified Procedure do not have to prepare or file a proposed order or attend a case management conference unless they wish to. This exception was designed to maintain the simplified procedure with minimal paperwork for these smaller, less complicated cases.

Rule 26—General Provisions Governing
Discovery and Duty of Disclosure

The amendments to Rule 26 relating to discovery and disclosures are the most significant of all the new amendments. As described in “Part I: A New Paradigm,” these amendments are central to a nationwide effort to change the litigation culture from “discover all you want” to “discover only what you need.” They are intended to enforce the urgent need to make cases just, speedy, and inexpensive; to reopen genuine access to the judicial system for many parties that have been priced or delayed out of their ability to use or interest in using the courts to resolve disputes; and to reinvigorate confidence and trust in the courts and judges. As stated in the 2015 Comment to Rule 26, these amendments “allow discovery of what a party/lawyer needs to prove its case, but not what a party /lawyer wants to know about the subject of a case—the amendments “emphasize the application of the concept of proportionality to disclosure and discovery, with robust disclosure followed by limited discovery.” (Emphasis in original.)

These changes should persuade parties and counsel to sharpen their focus; to relinquish the idea that they must discover every conceivable fact that may have some remote relevance to their general dispute; to recognize that justice delayed is justice denied; and to acknowledge that unchecked expense is more frequently used as an unjust sword than a shield against injustice. The cultural change is not expected to be immediately popular with some trial lawyers, or clients with unlimited litigation budgets, but the change may help lawyers to become better trial lawyers when they learn they must focus their cases and use thoughtful cross-examination in place of discovery paper blizzards.

As detailed below, the amendments call for more precise early disclosures—of both the favorable and the harmful information. They redefine discoverable information to limit it to that which relates to the claims and defenses of the specific case and, more significant, require that discovery be proportional to the needs of the case at issue. At this initial disclosure stage, the information to be disclosed is that which is “then known and reasonably available to the party.” In complex cases with many possible witnesses and multitudes of documents, the limitation to those things “then known and readily available” should be reasonably applied, while recalling that this initial disclosure does not terminate the continuing requirement of disclosure. Disclosures must be supplemented under Rule 26(e) “when a party learns that the information is incomplete or incorrect,” unless complete and correct information has already been provided in discovery responses. However, nothing permits information subject to mandatory disclosure to be withheld while waiting to see whether the opposing party will request it in discovery.

Although subject to change by the court, considering proportionality, the amendments limit the numbers of expert witnesses, call for more comprehensive written expert disclosures, limit discovery of communications between counsel and their experts, and limit expert testimony to that which has been previously disclosed. The amendments reduce the normal deposition times from seven hours to six hours.

Rule 26(a)(1)—Disclosures

The Good, the Bad and the Ugly

The first visible change in this subsection is to make clear what should have been the standard for years. The opening sentence requires parties to make initial disclosures, without awaiting a discovery request, of four categories of information: identification of possible witnesses; production of certain documents; description of categories of damages, in addition to computations of economic damages; and production of potential insurance agreements. The clarification in this initial amendment is that the information is to be disclosed “whether or not supportive of the disclosing party’s claims or defenses.”

In 2000, the Federal Rules were amended to limit disclosure to information “a disclosing party may use to support its claims or defenses.”[2] Colorado declined to adopt that limitation, thus requiring disclosure of all of the information listed in Rule 26(a)(1). One of the reasons for declining to adopt the federal limitation was the belief of the Civil Rules Committee that failure to produce adverse information would only cause delay while waiting for the opposing party to request such adverse information in its initial set of interrogatories and document requests. Thus, for example, in an employment discharge case, the employer must produce not only memos, notes, and e-mails criticizing the plaintiff–employee’s behavior, but also the memos, notes, and e-mails praising the employee’s performance.

Some lawyers complain that this clarification is contrary to their ethical obligation to represent their clients. However, lawyers must also recall that they act as “an officer of the legal system,”[3] and in that light, among other things, have professional responsibilities to bring or maintain meritorious claims,[4] to expedite litigation,[5] to be candid with the tribunal,[6] to be fair to opposing parties and counsel,[7] and to be truthful in statements to others.[8] The fact that any of these obligations may impinge on a client’s interests or desires does not weaken their application to the lawyer.

Subsections 26(a)(1)(A) (identity of individuals) and (B) (documents) have both been revised to require disclosures not just of names and documents concerning “disputed facts alleged with particularity in the pleadings,” but to disclose names and documents relevant to the “claims and defenses of any party.” Therefore, in an automobile collision negligence case with a statute of limitations defense, both the plaintiff and defendant must provide names of individuals “likely to have discoverable information” about both the collision and the statute of limitations.

Subsection (A) (list of individuals) has also been amended to require more than the name, address, and “subjects of information.” Too often parties may provide a list (frequently as many names as the party can think of) with a description of the subject of their knowledge such as “these individuals may have information about the claims in this case.” This, of course, is useless and often is intentionally designed to make it difficult for the opposing party to have any real idea of who it might want to depose or interview. The revised subsection (A) now requires, in addition to the names, addresses, and phone numbers of disclosed individuals, a “brief description of the specific information” the individual in “known or believed to possess.” (Emphasis added.) The wording of this provision is not designed to require binding disclosures used to limit the scope of possible trial testimony, such as is required from testifying experts. Rather, it is designed, for example, to reveal who was responsible for deciding to discharge the plaintiff/employee; who directly participated in negotiating the key contractual provision; and who hired the allegedly negligent company truck driver. For essentially the same reasons, subsection (B) (list of documents) now requires that a listing of the subject matter of documents be provided in addition to the category of documents.

Challenging Inadequate Disclosures

An important change is found in the last sentence of the second paragraph of Rule 26(a)(1), which was imported from the experience gained from CAPP. Motions challenging the adequacy of another party’s disclosures may no longer be filed prior to the initial case management conference. There are several reasons for this limitation. First, the parties are to note concerns relating to the other party’s disclosures in the proposed order (Rule 16(b)(9)) so that these issues can be addressed at the case management conference. The process of listing the asserted shortcomings will, itself, create the need for counsel to confer about these issues and perhaps resolve some of them. The identification of asserted failures to disclose should be much shorter than a motion to compel. Further, one of the court’s significant tasks at the case management conference is to determine the appropriate level of proportionality for disclosure and discovery purposes. The court’s ruling on this issue may indicate that some of the alleged shortcomings in disclosures are not proportional to the case and need not be disclosed for that reason alone. Additionally, the court can probably resolve the issues and concerns while conducting the case management conference without any need for briefing of a motion to compel.

Rule 26(a)(2)—Disclosure of Expert Testimony

The disclosure rules for witnesses providing opinion testimony continue to provide different requirements for disclosures of two classes of persons allowed to render opinion testimony. Persons retained or specially employed to provide expert testimony are referred to in Rule 26(a)(2)(B)(I) as “retained experts.” Persons who are not specially retained or employed to give expert testimony in the case but who are expected to present testimony concerning their personal knowledge of relevant facts, along with their opinion testimony relating to those facts, are referred to in Rule 26(a)(2)(B)(II) as “other experts.”

The major differences in the amended rule are that summaries of expert testimony are no longer allowed, and experts will be allowed to testify on direct examination only about matters “disclosed in detail,” in conformity with the rule. This limitation was included in CAPP and judges enforced it rather strictly. These witnesses are not required to anticipate issues or areas of inquiry that may be brought up in cross-examination, and may testify about such areas without prior disclosure. Indeed, the knowledge that witnesses may testify only as to opinions disclosed in their reports should allow opposing parties to plan much more focused, precise, and concise cross-examinations.

Experience with summaries of expert testimony has revealed that there can be so much background that is omitted that either the opposing party is blind to what testimony to expect or, as is usually the case, needs to take an extensive deposition to try to flesh out the expert’s testimony. These more extensive depositions add significant cost to the party taking the deposition, both in the hours preparing for and the time actually spent deposing the expert. Furthermore, once a deposition is taken, many courts will not limit testimony to the summary if the subject was or could have been covered in the deposition itself. The fundamental objectives here are to require parties using retained experts to fully disclose their opinions and bases for those opinions so that the parties can more accurately evaluate the strength of their cases and to reduce or eliminate the need to take the expert’s depositions in the first place.

Rule 26(a)(2)(B)(I)—Retained Experts

The revised rule now requires full written reports of the expert’s expected testimony. There is no requirement that the expert must personally prepare the report because frequently lawyers work closely with the experts to tailor and limit the testimony to what is most necessary for the case. Determining who is responsible for selecting each word of the report is not deemed significant. What is significant is that the expert witness must sign the report and thereby accept responsibility for both what the report says and includes and what it omits.

Much of the remainder of the changes in this portion of the rule is a clarification of certain required portions of expert reports that have been in existence for years. The most critical part of the report will be the complete statement of all opinions and the basis and reasons for those opinions. The word “complete” here supports the requirement that experts be limited in their direct testimony to what is disclosed in the report. This does not require a proposed transcript of the witness’s direct examination. However, before the report is complete, lawyers should plan that direct examination in detail to make sure nothing crucial is omitted. Lawyers should not rely on the assumption that the opposing party will depose the expert and open the door for further “supplementation” of the witness’s opinions.

Other amendments clarify that the data and other information considered by the witness in forming opinions is listed but need not be included. The information considered, however, should be both that which is relied on and that which was rejected in forming the opinions. Likewise, literature to be used during the expert’s testimony needs to be identified and referenced in the report, but need not be provided. On the other hand, copies of exhibits to be used must be provided with the report, along with the expert’s qualifications, a list of publications authored by the witness within the prior ten years, and a list of deposition or trial testimony given by the expert within the preceding four years.

The amended rule now mandates more information about the compensation to be paid the retained expert. Experts have been known to testify that they are to be paid $___ per hour, but they are not sure how many hours have been spent yet, or they have only been paid a small portion of their fee because most of their billings have not been rendered or paid yet. Now, reports must include the expert’s fee agreement or schedule for the study, preparation, and testimony, and an itemization of the fees incurred, whether or not actually billed or paid. The time spent must be included in the report and must be supplemented fourteen days before trial. In short, jurors are entitled to know what the expert’s true, total compensation is, not just what may have been paid to the expert as of the day of the expert’s initial report.

Rule 26(a)(2)(B)(II)—Other Experts

These witnesses are frequently investigating police officers at accident or crime scenes; treating physicians; and employees such as business owners, accounting personnel, supervisors, mechanics, and construction personnel with specialized, relevant background and experience, as well as personal knowledge of the events in suit. Especially for those who are not employees of a party, it is often difficult to arrange for the necessary time for them to prepare extensive reports of their planned testimony. Testimony from non-specially retained or employed witnesses who will give opinions must be disclosed either by written reports signed by the witness, or by statements prepared and signed by counsel or by any unrepresented party. The allowance of statements prepared and signed by counsel recognizes that frequently, witnesses such as police officers or treating doctors cannot or will not make time available to review or sign a written disclosure statement. In either event, the witness will be limited to testifying on direct about matters disclosed in detail in the report or statement. Again, the report or statement must include all opinions to be expressed, together with the bases and reasons therefor. Thus, a statement that the treating physician “will testify about the patient’s medical records and their impact on the physician’s treatment of the patient” will not meet this test. Additionally, the report or statement must list any qualifications of the witness needed to support allowing the witness to have and express admissible opinions, and must include copies of any exhibits to be used to support the opinions.

A feature of “other [non-retained] experts” is that they are not called to testify in the case because they have been specially retained as independent experts to offer opinions. They are called as fact witnesses with personal information relating to the case, and through training or experience are qualified to offer opinions useful to the jury based on facts they observed. In short, as noted in the Supreme Court’s 2015 Comments, non-retained experts are people whose opinions are formed or reasonably derived from or based on their occupational duties with respect to the matter at issue in the case. Even though their opinions and supporting factual bases and reasons must be disclosed in detail in their report or statement, they are not required or expected to prepare and sign a full report containing the other information only required from retained experts. For example, in addition to the opinions and diagnoses reflected in the plaintiff’s medical records, a treating physician may have reached an opinion as to the cause of those injuries gained while treating the patient. Those opinions may not have been noted in the medical records but, if appropriately disclosed, may be offered at trial without the witness having first prepared a full, retained expert report.

Rule 26(a)(2)(B)—Limitations of Trial Testimony

Both of the revised subsections of Rule 26(a)(2)(B) relating to retained experts and other experts contain the same last sentence: “The witness’s direct testimony shall be limited to matters disclosed in detail in the report [or statement].” This is a new provision based in part on the experience from CAPP and on the desire to continue holding down the cost of trial preparation. One of the justifications for the perceived necessity to take expert depositions is that trial courts frequently do not limit experts to their reports at trial so that the deposition is necessary to uncover unreported opinions (or belatedly conceived opinions), which the trial judges might allow in evidence.

With the revised rule, trial courts are instructed to limit direct testimony. This does not preclude opinions for which the opposing party opens the door by cross-examining on opinions held by the witness beyond those disclosed in the report or statement. Not only does this provide a rule-based requirement that the trial courts limit testimony, but it also enforces the requirements that reports or statements in fact be complete. This limitation is also bolstered by the supplementation requirements of Rule 26(e) in those situations where depositions are taken.[9]

Rule 26(b)—Discovery Scope and Limits

Before discussing the significant change in subsection 26(b)(1), it is important not to overlook the opening phrase of section 26(b): “Unless otherwise modified by order of the court . . .”; In other words, the court is not bound to treat discovery in all cases the same. Some cases may actually have more stringent limitations placed on their discovery than the presumptive limitations in subsection 26(b)(2). Conversely, larger and complex cases may need and can be given significantly more discovery than that which is set out as the presumptive discovery limitations, as appropriate.

Rule 26(b)(1)—In General

The amended portion of Rule 26(b)(1) is taken verbatim from the new Federal Rule. It makes one fundamental change and two significant but lesser revisions to the prior Colorado Rule 26(b)(1).

Proportionality. Previously, there were four factors in Rule 26(b)(2)(F) for courts to consider when determining whether good cause existed to justify modifying the presumptive limits on discovery. The third of those factors was whether the expense of discovery outweighed its likely benefit, “taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues in the litigation, and the importance of the proposed discovery in resolving the issues.”[10] Very few reported cases ever discussed this obscurely located provision.

In 2009, the ACTL/IAALS Final Report lit the wildfire. It stated “Proportionality should be the most important principle applied to all discovery.”[11] Thereafter, proportionality of discovery became a key issue at the Duke Conference.[12] Then, the Federal Rules Advisory Committee joined in, concluding that “What is needed can be described in two words—cooperation and proportionality—and one phrase.”[13] CAPP, along with many other pilot projects, also incorporated the concept of proportionality.[14] When the Federal Rules Advisory Committee proposed its revisions to Rule 26(b)(1), it lifted the list of factors to establish good cause from Federal Rule 26(b)(2).[15] It then specifically referred to this language as involving proportionality, and placed it directly into the very definition of what is discoverable. Thus, it is not enough any longer to contend that information is discoverable simply because it is relevant to a claim or defense. Such information must also be “proportional to the needs of the case.”

In evaluating the “needs of the case,” the Advisory Committee also adjusted the order of some of the factors to be considered when determining proportionality. It switched the order of “the amount in controversy” and “the importance of the issues at stake in the action” so that the amount of money was listed after the importance of the issues. This change was made to place less emphasis on the amount of money at stake as the leading factor (even though all of the factors must be considered if significant). The Advisory Committee also moved the issue of whether the burden or expense outweighed the likely benefit of the additional discovery from being a main issue in considering good cause (as phrased in Federal Rule 26(b)(2)(C)(iii) and Colorado Rule 26(b)(2)(F)(iii)) to being simply another factor to be considered. Thus, as revised, the federal and Colorado provisions regarding the scope of discovery are virtually identical and state:

Subject to the limitations and considerations contained in subsection (b)(2) of this Rule, parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. (Emphasis added)

This new rule is patently designed to limit “full discovery” in all but the larger, more important and more complex cases. This is an important brick in the new paradigm of giving parties only what they need rather than whatever they want.

The Supreme Court’s 2015 Comments to Rule 26 emphasize the case-by-case considerations that may impact proportionality. All the listed factors should be thought about, but individual factors may carry very different weights depending on the case and claims. The amount in controversy may not be as much of a factor as the desired enforcement of fundamental civil or constitutional rights. The public interest may demand resolution of issues in the case. In employment and professional liability cases and for the amount of damages, for example, the parties’ relative access to key information may prove to justify more discovery for one party than to the other on selected issues.

Other limitations on the scope of discovery. In addition to the requirement that discovery be proportional to the needs of the case, a second change in both the Federal and Colorado Rules was to delete the authority of a court to “order discovery of any matter relevant to the subject matter involved in the action,” as allowed in the previous version of Rule 26(b)(1). This, too, strikes a blow at potentially vast discovery of material even less directly relevant to the specific claims and defenses of the lawsuit. Discovery as the fishing expedition to find out whether a party can uncover new causes of action should no longer be available.

The third change in Rule 26(b)(1) is a clarification relating to information that is not admissible at trial. The last sentence of this section still allows discovery of information that may not be admissible, but only if the information sought is “within the scope of discovery.” Thus, such inadmissible information must still be relevant to the parties’ claims and defenses, not just to the “subject matter involved in the action,” and must still be proportional to the needs of the case.

Rule 26(b)(2)—Limitations [on Discovery]

This Rule retains Colorado’s previous basic limitations on the use of the various discovery devices. It retains the ability to expand or contract the uses of those devices “for good cause shown,” but also imports the proportionality factors of subsection (b)(1).

The only change is in subsection (b)(2)(F)(iii)—the subsection describing the factors to be considered in determining “good cause,” and the subsection from which the proportionality factors were removed for relocation into subsection (b)(1). This new consideration in reworded (b)(2)(F)(iii), taken verbatim from the proposed Federal Rule amendment, is whether the proposed additional discovery is “outside the scope permitted by C.R.C.P. 26(b)(1).” However, subsection (b)(2) specifically allows exceptions to its limits on use of discovery methods for good cause. Thus, this factor in (b)(2)(F)(iii) does not mean that good cause cannot be shown in situations if discovery is sought beyond subsection (b)(1)’s scope of discovery. If the broader discovery is sought, however, the other considerations in (b)(2)(F)(i), (ii), and (iv) will need to be quite persuasive.

Rule 26(b)(4)—Trial Preparation: Experts

Depositions of Experts. The subject of expert depositions has, from the beginning of CAPP, been a hotly debated topic. Opponents of expert depositions have argued that with requirements for disclosures of full expert reports and limiting their testimony to what is disclosed in detail, depositions of experts are unnecessary, expensive, and counterproductive. They argue that the main result of deposing experts is to “educate and make them smarter” and better able to prepare for and to withstand cross-examination at trial. Proponents of expert depositions counter that depositions allow lawyers to get a feel for the quality of the expert as a person, prospective witness, and expert in the designated field. They contend that the added cost of the deposition is not great in the overall expense of expert study and preparation, and that expert depositions enhance settlement once the lawyers have seen how well the expert can withstand intense examination. Finally, as noted above, a number of lawyers claimed that depositions were necessary because they could not rely on the judges to limit the expert’s testimony to the report or summary.

Although the Civil Rules Committee ultimately recommended that depositions for retained experts should be limited to three hours, the Supreme Court decided to apply the standard of six hours to all experts, as well as to all other deponents. Because of the varying importance of expert testimony in cases, this rule specifically authorizes trial courts to expand or limit deposition time in accordance with proportionality.

Disclosures and Discovery About the Preparation of Expert Opinions and Reports. In 2010, Federal Rules 26(b)(4)(B) and (C) were added to preclude discovery of drafts of expert reports or disclosures made pursuant to Rule 26(a)(2) and to provide work-product protection to communications between a party’s attorneys and the party’s retained experts and the expert’s assistants. The discovery bar does not extend to other information gathered by the expert or to questions about alternative analyses or approaches to the issue on which the expert is testifying.[16] Discovery may extend to communications relating to the expert’s compensation for study or testimony; facts and data provided by the attorney that the expert considered in forming the opinions expressed; or assumptions that the attorney provided and the expert relied on.[17] Among other things, these rules were adopted to prevent game playing with experts, such as counsel telling them to never make notes of what they discuss, to not prepare and send drafts, and to always make revisions to the original version of the report while deleting all portions that had been changed.

After this amendment was adopted in the Federal Rules in 2010, the Colorado Civil Rules Committee was prepared to recommend a similar change. However, it decided that such a change might adversely impact the information that was to be gained from the study of how CAPP worked and, therefore, the amendment was not further considered until the study of CAPP was concluded. Although there are slight variances in language between new subsection 26(b)(4)(D) of the Colorado Rules and subsections 26(b)(4)(B) and (C) of the Federal Rules, the substance of the changes is identical.

Rule 26(c)—Protective Orders

This Rule allows courts to issue a variety of protective orders to protect against annoyance, embarrassment, oppression, or undue burden or expense. The new amendment to Colorado Rule 26(c)(2), taken verbatim from the amendment to Federal Rule 26(c)(1)(B), now also gives courts the authority to allocate the expenses of discovery among the requesting and delivering parties (or non-parties) where appropriate. This amendment does not mandate any allocation, but simply adds this tool to the court’s tool box of alternatives. Indeed, the Committee Note relating to the Federal Rule change provides that “recognizing the authority to shift the costs of discovery does not mean that cost-shifting should become a common practice,” and that “[c]ourts and parties should continue to assume that a responding party ordinarily bears the costs of responding.”[18]

Rule 26(e)—Supplementation of Disclosures,
Responses, and Expert Reports and Statements

A provision has been added to the requirement to supplement expert reports or statements where a party intends to have the expert testify on direct examination about matters disclosed for the first time during the expert’s deposition, but that are not in the expert’s report or statement. The supplementation must be a specific description of the deposition testimony to be offered and relied on. This additional supplementation is intended to allow the court to determine from the expert’s Rule 26(a)(2) report and its supplementation whether the direct testimony offered at trial has or has not been properly disclosed. These provisions are designed to avoid the court’s need to read scattered portions of the deposition before ruling on admissibility of the new testimony. It also avoids the opponent arguing surprise because it did not understand what deposition testimony was going to be offered as additional and admissible expert testimony.

When the expert report is properly supplemented with this subsequent deposition opinion testimony, Rule 26(e) instructs the trial courts that those supplemented opinions must be permitted, unless the court finds that the opposing party has been unfairly prejudiced by the failure to have made disclosure in the original expert report.

Rule 30—Depositions Upon Oral Examination

The only changes of note in Rule 30 are contained in subsection 30(d)(2). They shorten the standard deposition for all witnesses from one day of seven hours to one day of six hours (unless otherwise ordered by the court). With the usual practice now being to clock deposition times to the minute (not counting breaks for consultation or bathroom breaks), seven hours has frequently devolved into about ten hours of actual time spent at the deposition. Furthermore, many felt that six hours of solid time, leaving out boilerplate questions, was still normally sufficient to get the genuinely necessary evidence. If more is likely to be needed, the parties should determine that before the deposition and request the court’s permission for more time.

Rule 33—Interrogatories

After the Civil Rules Committee agreed on the changes to Rule 34 for the reasons described below, those changes seemed to be equally applicable to responses to interrogatories. Thus, Rule 33(b) was amended to add the requirements that objections to interrogatories specify the grounds for objection and to state whether responsive information is being withheld on the basis of the objection. Such objection also stays the need to answer those objectionable portions pending a ruling by the trial court and without filing a motion for a protective order.

Rule 34—Production of Documents

Over time, litigants have developed the habit of making a string of boilerplate objections to requests for production of documents. The objections are then incorporated verbatim, or by reference, at the beginning of the response to each document request. (To be fair, these responses are often invited by equally boilerplate definitions and instructions in the opposition’s request.) Thus, the requesting party has no real information about which of the objections are intended to apply or why they are being made. This confusion can then be aggravated by the boilerplate comment to the effect that “notwithstanding these objections, and without waiving them, [defendant] is producing the following documents.” With this response, the requesting party has no idea whether the responder is providing all the documents it has or whether it really is withholding some of them and, if so, how many are being withheld and the basis on which the responder is refusing to produce them.

Colorado Rule 34(b) and Federal Rule 34(b)(2) are being amended with virtually identical language. First, the amended rules provide that the response to each request must “state with specificity the grounds for objecting to the request.” The objections must then be specific, not generic, and relevant to the precise request to which objection is being made. Second, the amended rules require that an objection state whether any responsive materials are actually being withheld on the basis of that objection.

Separately, the rules are also being amended to allow production of materials instead of offering inspection of the materials. Essentially, this simply recognizes what has for many years been the practice in most cases, at least where the produced documents are not especially numerous or burdensome.

Finally, Colorado Rule 34(b) adds a new provision to clarify the effect of a fairly common practice. When a party objects to production of certain documents, it has been unclear whether the objecting party also must request a protective order under Rule 26(c) or whether the requesting party must file a motion to compel production. The newly amended Colorado Rule now specifies that an objection to production stays the obligation to produce these documents until the court resolves the objection and that no motion for protective order is necessary. Frequently, when the requesting party receives an objection, especially if some responsive documents are produced, the requesting party will decide that it is unnecessary to fight for more documents or the parties can reach an acceptable compromise as to what documents will be produced. Thus, it seems appropriate to await the requesting party’s determination that it really is worth the effort to obtain the withheld documents rather than requiring the objecting party to move for protection and involve the court on matters that the requesting party may no longer need.

Rule 37—Failure to Make Disclosure
or Cooperate in Discovery: Sanctions

Rule 37(a)(4)(A) and (B) have allowed courts to award reasonable expenses, including awarding attorney fees in favor of prevailing parties and against opposing parties and their attorneys, unless the court finds certain factors that ameliorate against such an award, including “other circumstances that make an award of expenses unjust.” Experience has shown that courts, which historically have been unwilling to award monetary sanctions, have used this latter escape valve to justify the lack of monetary sanctions.

The CAPP rules, however, required that courts grant sanctions “unless the court makes a specific determination that failure to disclose in a timely and complete manner was justified under the circumstances or [was] harmless.”[19] Judges handling CAPP cases found this extra pressure to impose sanctions helpful in some instances, although they still felt that encouraging compliance and emphasizing that attorneys cooperate with each other was ultimately more desirable.

After struggling with this dichotomy at some length, the subcommittee of the Civil Rules Committee, the full Committee, and ultimately the Supreme Court chose the path of encouraging courts to be more aggressive with the imposition of sanctions, but not to go as far as CAPP went. Thus, rather than making the mere determination that other circumstances made monetary sanctions unjust—a low standard for avoiding monetary sanctions—Rule 37(a)(4)(A) and (B) were amended to allow that reprieve from imposing sanctions only where it would be manifestly unjust to award monetary sanctions to the prevailing party.

Under these rules, however, courts may still decline to impose sanctions where the movant did not make a good-faith effort to obtain compliance before seeking court action or where the accused party was substantially justified for the nondisclosure, response, or objection. Indeed, those findings might trigger a sanction against the complaining party or its counsel. This counter-provision significantly increases the pressure on parties seeking these sanctions to meet, confer in person, and diligently endeavor to reach a reasonable resolution.

Conversely, Rule 37(c)(1) has authorized preclusion at trial or for summary judgment of nondisclosed information required to be disclosed by Rules 26(a) or (e), unless such failure is harmless. Because it is so easy to articulate some kind of harm, this rule has caused preclusion of evidence that failed to cause significant harm or where the harm caused by the nondisclosure would be substantially outweighed by the harm resulting from preclusion. The amended subsection 37(c)(1) prohibits preclusion as a sanction simply upon allegations of some harm. Thus, preclusion for nondisclosure may not be imposed where the failure has not and will not cause significant harm or where the preclusion is disproportionate to the alleged harm.

Rules 54 and 121 § 1-22—Costs

Although only tangentially related to the issue of amending pretrial procedures to increase access to the judicial system by advancing the concept that cases should be just, speedy, and inexpensive, the Civil Rules Committee also submitted two amendments relating to controlling costs awarded to prevailing parties. First, in Rule 54(d), as approved by the Supreme Court, awarded costs must be reasonable considering any relevant factors that may include the needs and complexity of the case and the amount in controversy. Second, Rule 121 § 1-22 is amended to allow hearings on bills of costs where the requesting party has identified the issues to be heard and where the court has concluded that a hearing would be of material benefit to the court in ruling on the bill of costs.

Conclusion

With the revisions and amendments to the foregoing Rules, Colorado has moved to address the increasingly severe problem of a litigation culture that appears to be driven by and has thrived on frequently excessive demands for information. These demands can add substantial unnecessary expense and foreclose the societal benefits of efficient judicial systems for the peaceful resolution of disputes and wrongdoing. By encouraging and expediting a new culture focused on the genuine and limited needs of clients and not their (or their lawyers’) desires—a culture trained in and dedicated to the prompt and efficient handling of disputes—it is hoped that civil litigation can indeed incorporate a new paradigm.

Richard P. Holme is senior of counsel in the Trial Group at Davis Graham & Stubbs LLP. He is a member of the Colorado Supreme Court Standing Committee on Civil Rules and was chair of its Improving Access to Justice Subcommittee, which drafted the proposed changes—(303) 892-7340, richard.holme@dgslaw.com. He has also been a member of the ACTL Joint Task Force since 2010, and was involved in the latter stages of the Joint Project of the ACTL and the IAALS. This article expresses the author’s views and does not endeavor to represent all the views of the Civil Rules Committee or the Supreme Court.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

[1] See Holme, “Back to the Future—New Rule 16.1: Simplified Procedure for Civil Cases Up to $100,000,” 33 The Colorado Lawyer 11 (May 2004), www.cobar.org/tcl/tcl_articles.cfm?articleid=3427.

[2] FRCP 26(a)(1)(A)(i) and (ii). See Advisory Committee Notes re 2000 Amendment.

[3] Colo. RPC, Preamble and Scope at [1].

[4] Colo. RPC 3.1.

[5] Colo. RPC 3.2.

[6] Colo. RPC 3.3.

[7] Colo. RPC 3.4.

[8] Colo. RPC 4.1.

[9] See discussion of Rule 26(e), infra.

[10] CRCP 26(b)(2)(F)(iii).

[11] ACTL/IAALS, supra note 24 at 7. See “Part I: A New Paradigm,” supra note 2 at 46.

[12] See Holme, supra note 3 at 46 and notes 35 to 37 and accompanying text.

[13] Advisory Comm. Memo at B2 to B3. See Holme, supra note 3 at 46.

[14] PPR 9.1. See Holme, supra note 3 at 47.

[15] FRCP 26(b)(2)(C)(iii).

[16] See Advisory Comm. Notes re: 2010 Amendments to FRCP 26(b)(4).

[17] Id.; FRCP 26(b)(4)(C)(i) to (iii).

[18] See 2014 Rules Report, supra note 26 at 26.

[19] PPR 3.7.

New Pretrial Rules for Civil Cases—What Is Changed (Part 1 of 2)

Editor’s Note: This article originally appeared in the July 2015 issue of The Colorado Lawyer. This is the first half of the article; click here for the second half. Reprinted with permission.

DickHolmeBy Richard P. Holme

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.[1] 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,[2] 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[3] (“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;[4] and (2) the June 30, 2015 expiration of CAPP for the handling of business actions applicable in five of the Denver metropolitan counties.[5] 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,[6] 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.[7]

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.”[8] Likewise, this judicial involvement and oversight were crucial and widely appreciated aspects of CAPP by both lawyers and judges.[9] Early, active judicial case management is also an important factor emphasized by leading judges nationwide.[10]

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.[11]

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.[12] 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.[13] 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;[14] 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.[15] Thereafter, courts were instructed by CAPP to provide “active case management,” including prompt conferences by telephone if permitted by the court.[16] Firm trial dates were to be set at the case management conference and not changed absent extraordinary circumstances.[17]

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.[18] 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.”[19] Similarly, judges found that the initial case management conference was “the most useful tool for determining a proportionate pretrial process.”[20]

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[21] 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.[22] 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).[23] 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.[24]

This conclusion was bolstered by the interviews with outstanding trial judges, virtually all of whom use in-person, initial case management conferences.[25]

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.[26] The Note adds that a “scheduling conference is more effective if the court and parties engage in direct simultaneous communication.”[27]

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.[28]

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.

Richard P. Holme is senior of counsel in the Trial Group at Davis Graham & Stubbs LLP. He is a member of the Colorado Supreme Court Standing Committee on Civil Rules and was chair of its Improving Access to Justice Subcommittee, which drafted the proposed changes—(303) 892-7340, richard.holme@dgslaw.com. He has also been a member of the ACTL Joint Task Force since 2010, and was involved in the latter stages of the Joint Project of the ACTL and the IAALS. This article expresses the author’s views and does not endeavor to represent all the views of the Civil Rules Committee or the Supreme Court.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

NOTES

[1] See CRCP 1(b).

[2] 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.

[3] 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.

[4] 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.

[5] See Holme supra note 3 at 47-48 (description of CAPP).

[6] The Denver Superior Court was a civil court with a jurisdictional limit of $5,000. It was abolished in 1986.

[7] 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.

[8] Id. at B-2 to B-3.

[9] Holme, supra note 3 at 48.

[10] 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.

[11] See, e.g., id. at Appendix D.

[12] Rule 16(b) and 16(d)(1).

[13] See ACTL/IAALS, supra note 10 at 7.

[14] Pilot Project Rule (PPR) 7.1.

[15] PPR 7.1 to 7.2.

[16] PPR 8.1 to 8.4.

[17] PPR 8.5.

[18] 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.

[19] CAPP Final Report, supra note 18 at 23.

[20] Id. at 24.

[21] PPR 7.1 to 7.2; and PPR Appendix B.

[22] 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.

[23] 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.

[24] 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.

[25] See ACTL/IAALS supra note 10 at 10-20.

[26] 2014 Rules Report at 19 (May 2014), available from the author.

[27] Id.

[28] 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).