The Colorado Supreme Court has adopted amendments to the Uniform Local Rules for All State Water Court Divisions. Rule 11, Pre-Trial Procedure, Case Management, Disclosure, and Simplification of Issues, has been changed to make the notes taken by experts during their meetings not discoverable, and none of the content of the meetings or the written statement prepared will be admissible at trial. Additionally, a Committee Comment was added to outline how such meetings should be conducted and how to prepare the written statement.
Uniform Local Rules for All State Water Court Divisions Rule 11(b)(5)(D)(III) was amended to read as follows:
The content of the meetings of the experts and the written statement prepared pursuant to Water Court Rule 11(b)(5)(D)(II) shall be considered as conduct or statements made in compromise negotiations within the ambit of CRE 408. For this reason, notes taken by the experts or other records of the discussion during these meetings shall not be discoverable, and none of the content of the meetings of the experts or the written statement prepared shall be admissible at trial. The meetings of the experts shall not include the attorneys for the parties or the parties themselves, unless they are the designated expert(s).
The new Committee Comment begins:
Effective July 1, 2011, Rule 11 is further amended in subsection (b)(5)(D)(III) to make explicit the non-discoverability and non-admissibility of the notes, records, content of discussions, and written statement prepared by the experts in accordance with the rule, and, further, to clarify that the meetings of the experts exclude attorneys for the parties or the parties themselves unless they are designated experts. These clarifying changes apply nunc pro tunc on and after July 1, 2009.
In addition, the following Suggested Guide is included in this Comment by way of example for conduct of the meetings of the experts and preparation of the joint written statement of the experts.
Then follows the “Suggested Guide for Conducting Meetings of the Experts in Water Court Proceedings and Preparing Written Statement.”
Click here to read the red line edits, the full Committee Comment and Suggested Guide, and the full release from State Judicial concerning these rules changes.