Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation

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1 Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation On January 1, 2012, new rules approved by the Colorado Supreme Court entitled the Civil Access Pilot Project ( CAPP ) went into effect in four judicial districts in Colorado: the first (Jefferson and Gilpin Counties), second (Denver County), seventeenth (Adams County), and eighteenth (Arapahoe County) judicial districts. CAPP is a two-year project governing business litigation actions filed in the participating districts between January 1, 2012 and December 31, Business actions governed under CAPP include, among others: breach of contract actions, business tort actions (e.g., unfair competition, fiduciary duty, fraud, misrepresentation); professional negligence actions, and actions involving the internal affairs of a business organization. Whether an action falls under the direction of CAPP depends on only the claims set forth in a plaintiff s complaint. CAPP is based on a series of proportionality factors including: the amount in controversy, and complexity and importance of the issues at stake in the litigation to shape the process of a case to achieve a just, timely, efficient, and cost effective determination of the action. CAPP compels the disclosing parties to provide information whether that information is supportive or harmful to a party s claim. CAPP requires the parties to meet and confer concerning the reasonable preservation of all relevant documents and things, including, much like the federal rules, any electronically stored information to promote an affordable discovery process. CAPP significantly changes the involvement of expert witnesses by denying parties the ability to depose or obtain discovery from expert witnesses. A full copy of the CAPP rules can be found at: 1

2 Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation By: Drew Hintze 1 On January 1, 2012, the Civil Access Pilot Project ( CAPP ) became effective in the first (Jefferson and Gilpin Counties), second (Denver County), seventeenth (Adams County), and eighteenth (Arapahoe County) judicial districts in Colorado. 2 CAPP was formed to address the issues of high pretrial costs in business litigation cases, as well as the delays in clogged district courts. CAPP implements new civil procedure rules designed to streamline the litigation process and minimize opportunities for gamesmanship in order to give litigants a better chance of having their cases tried before a fact finder at an affordable cost. CAPP governs business actions filed in the participating judicial districts. The determination of whether an action fits within CAPP is based only on the claims in the plaintiff s initial complaint. The following are not factors in the determination of the CAPP status of a case: size of the case (e.g., amount in dispute or number of parties); type of party (e.g., entity or individual); or nature of the remedy (e.g., legal or equitable). Ultimately, the court has the final discretion as to whether or not a case is involved within CAPP based upon the allegations contained in the plaintiff s complaint. The types of business actions falling under the guidance of CAPP include: Breach of contract actions; Business tort actions (e.g., unfair competition, fiduciary duty, fraud, misrepresentation); Owner/investor derivative actions brought on behalf of business organizations; Actions for statutory and/or common law violations where the breach or violation is alleged to arise out of business dealings (e.g., sales of assets or securities; corporate restructuring; partnership, shareholder, or other business agreements); Actions involving: o transactions governed by the Uniform Commercial Code; o commercial real property; o business transactions with commercial banks or other financial institutions; o insurance coverage, including directors and officers, errors and omissions, business interruption, environmental, or bad faith; o dissolution of corporations, partnerships, limited liability companies, limited liability partnerships or joint ventures; 1 Drew D. Hintze is currently an associate at Barkley & Martinez, P.C. specializing in employment law. While working in the Second Judicial District Court of Colorado, however, Drew participated in the development of the CAPP program by participating in discussions regarding the implementation of the program. He worked with CAPP committee members to develop and refine the final governing rules. Drew can be reached at or CAPP was approved by the Colorado Supreme Court in July 2011 to govern business litigation actions filed in the participating districts between January 1, 2012 and December 31, During this initial twoyear trial period, various agencies will collect and analyze data to determine whether CAPP leads the way to a less expensive path to trial and warrants further expansion to other judicial districts. 2

3 o intellectual property, including state trademark laws; Private actions for securities fraud; Private antitrust actions; Professional malpractice actions (excluding medical malpractice actions); and Products liability actions. With CAPP, new civil procedure rules, the Pilot Project Rules ( PPR ), were designed to prevent the pretrial process from overwhelming the issues underlying a case. 3 However, the PPR do not completely replace the Colorado Rules of Civil Procedure. 4 Rather, the Colorado Rules of Civil Procedure will continue to govern cases except to the extent that there is an inconsistency, in which case the PPR will now take precedence. 5 The following represents the departure CAPP presents from the current litigation process involving business actions under the Colorado Rules of Civil Procedure: Proportionality is the Core Principle The proportionality principle is behind every one of the rules set forth in CAPP. The proportionality component of CAPP requires the court and the parties, at all times, to address ways designed to assure that the process and the costs are proportionate to the needs of the case. These proportionality factors include the amount in controversy, and complexity and importance of the issues at stake in the litigation. The proportionality rule is fully applicable to all discovery, including the discovery of electronically stored information, and shapes the process of the case in order to achieve a just, timely, efficient, and cost effective determination of the action. 6 Enhanced Pleading Standards Pleadings filed under CAPP are required to identify and narrow the disputed issues at the earliest stages of litigation to pinpoint the focus of discovery and allow the litigation process to be shaped by the true nature of the dispute. 7 The party that bears the burden of proof with respect to any claim or affirmative defense should plead all material facts that are known to that party that support that claim or affirmative defense and each remedy sought, including any known monetary damages. CAPP prohibits the general denials in an answer of any statement of fact alleged in a complaint. 3 A complete copy of the rules promulgated under CAPP can be found at: 11.pdf 4 PPR Id. 6 Id. at See id. at

4 Pleadings and Initial Disclosures Must Disclose Both Supportive and Harmful Information CAPP requires early, meaningful, disclosures for the purpose of eliminating gamesmanship of the pretrial process, decreasing the costs expended in discovery disputes, and increasing the opportunity for meritorious trials. Accordingly, mandatory initial disclosures require the pleading party to file with the court a statement listing: (1) all persons with information related to the claims; (2) a brief description of the information each person is believed to possess; (3) a certification that the pleading party has available for inspection and copying all reasonably available documents and things related to the claims; and (4) a description by category and subject area of the documents and things being disclosed. 8 Of significant importance, CAPP compels the disclosing party to provide the required information whether that information is supportive or harmful to a party s claim. 9 The failure of a party to comply with these rules in a timely and complete manner will result in the imposition of mandatory sanctions under CAPP. 10 These sanctions may result in the denial of the right to use, or object to, information or evidence improperly withheld, the dismissal of all or part of a claim or defense, or the assessment of attorney s fees and costs. 11 Defendants Must Answer the Complaint and Motions to Dismiss Do Not Stay the Case Under CAPP, a defendant s filing of a motion to dismiss does not eliminate the need for the defendant to file an answer. 12 Unless otherwise prohibited by statute, the filing of a motion to dismiss will not interfere with pleading and disclosure requirements. 13 Therefore, when a motion to dismiss is filed, the defendant must file an answer and the parties must proceed with disclosures and discovery. 14 Meet, Confer and Preserve Evidence CAPP requires the parties to meet and confer concerning the reasonable preservation of all relevant documents and things, including any electronically stored information. 15 Unless directed otherwise by an order of the court, the cost of preserving, collecting and producing electronically stored information shall be borne by the producing party. 16 The court may shift any or all costs associated with the preservation, collection and production of electronically stored information as the interests of justice and proportionality require Id. at Id. 10 Id. at Id. 12 Id. at Id. 14 Id. 15 Id. at Id. at Id. 4

5 Initial Case Management Conferences After disclosures are exchanged by the parties, and the parties have met and conferred regarding the preservation of evidence, CAPP requires the parties to set an initial case management conference with the court. 18 Each party s lead trial counsel is obligated to attend the initial case management conference. 19 Before the initial case management conference is held, the parties are first required to submit a joint report setting forth their agreement, or their respective positions, regarding, among other things, the issues to be tried in the case, the application of the proportionality factors and proposed discovery and limitations of discovery consistent with the proportionality factors, the number and subject areas of expert witnesses, and proposed dates for completing discovery, dispositive and pretrial motions, including the trial date itself. 20 When the initial case management conference is held, the judge walks through the joint report with the parties and tailors the litigation process to the needs of the specific case by using the pleadings, disclosures, joint report, and oral arguments of counsel. 21 The judge then determines the amount of discovery and time necessary to complete the case. After the conference, the court issues an initial case management order setting forth the discovery guidelines, deadlines, and the date(s) the trial will be held. 22 Limitations on Factual and Expert Discovery CAPP limits fact discovery to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness. Fact discovery must, at all times, comport with the factors of proportionality. 23 Once the initial case management order is issued, discovery is limited in accordance with that order. 24 No other discovery will be permitted absent further court order based on a showing of good cause and proportionality. 25 The PPR governing expert witnesses under CAPP represent a dramatic shift from the manner governing expert witnesses under current litigation procedures. CAPP requires expert witnesses to follow comprehensive uniform requirements for their expert written report. 26 Each export s report must now fully address the substance of the expert s direct testimony and the expert will be limited to testifying on direct examination about the matters disclosed in reasonable detail in their written report. 27 Significantly, CAPP does not permit depositions or other discovery of expert witnesses. 28 CAPP further permits 18 Id. at Id. 20 Id. 21 See id. at Id. 23 Id. at Id. 25 Id. 26 Id. at10.1(a). 27 Id. at 10.1(b). 28 Id. at 10.1(d). 5

6 only one expert witness per side to submit a report and testify in any given specialty or with respect to any given issue, absent a court s finding of extraordinary circumstances. 29 Ongoing Active Case Management by One Judge Upon the filing of a complaint, CAPP specifies that a judge will be assigned to the case for all purposes, and, absent unavoidable or extraordinary circumstances, that judge will remain assigned to the case until final resolution, including any post-trial proceedings. 30 That judge shall also provide active case management from filing to resolution on all pending issues. 31 The parties have the opportunity to arrange, and the court may hold on its own motion, prompt status conferences to clarify, modify or supplement any of the court s outstanding orders, or to resolve disputes regarding any pretrial matter. 32 Motions for Extensions or Continuances are Strongly Discouraged Absent Extraordinary Circumstances In order to keep the case on a speedy path to resolution, deadlines and the trial date(s) are considered firm under CAPP. 33 Absent extraordinary circumstances, motions for continuances or extensions will be summarily denied by the court, regardless of whether the motion is stipulated by the parties. The expectation of the parties when requesting such an extension or continuance is to assume the court will deny such motion Id. at Id. at Id. at Id. at Id. at 1.4, See id. at 1.4,

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