Originally published in The Colorado Lawyer, December 2001, Vol. 30, No. 12/9.

Transcription

1 Originally published in The Colorado Lawyer, December 2001, Vol. 30, No. 12/9. Civil Rules 16 and 26: Pretrial Procedure And Discovery Revisited and Revised by Richard P. Holme Effective January 1, 1995, Rules 16 and 26 of the Colorado Rules of Civil Procedure ( C.R.C.P. or Rule ) were substantially amended and began governing what was hoped to be a new era of differential case management, judicial involvement in pretrial civil case planning and handling, limited discovery, and a heightened attention to professionalism among litigators and trial lawyers. 1 Since that time, the courts and lawyers have become used to the provisions and, according to a poll undertaken by the Litigation Council of the Colorado Bar Association, the provisions have met general acceptance within the legal community. This is particularly true given the lack of suggested alternatives that seem likely to make a significant improvement in the system. 2 Nonetheless, over the intervening years, a number of ambiguities and uncertainties have appeared, created by the phraseology of the Colorado Rules. With enough time having elapsed to discern a consensus as to the problems, the Colorado Supreme Court Standing Committee on Civil Rules ( Civil Rules Committee ) determined that it was time to revisit the rules with an eye toward updating and polishing them. The Civil Rules Committee wanted to give the relatively revolutionary 1994 changes to Colorado Rules 16 and 26 time to be used extensively and to become familiar to the bench and bar. Thus, even though the desirability of changing some of the Rules became relatively obvious at an early stage, the Civil Rules Committee held off any proposed revisions until it had more input and data on the actual effect of the Rules on pretrial practice and discovery. Before it began a reconsideration of the Rules, the Committee had the advantage of the results of the polling undertaken by the Colorado Bar Association Litigation Council and reviewed those comments carefully before undertaking the task of revision. The Civil Rules Committee found that Rule 26 was the easier rule to deal with. Thus, proposed revisions to that Rule were promulgated, 3 a public hearing before the Colorado Supreme Court was held, and a final version was adopted by the Court, effective July 1, However, this series of amendments to Rule 26 is only one of the two sets that have been proposed by the Civil Rules Committee for adoption by the Court. A second proposed amendment to C.R.C.P. 26 relates to the new amendments to Rule 26 of the Federal Rules of Civil Procedure ( F.R.C.P ) that limits the scope of permissible discovery. 5 That amendment was more recently published for comment and is being considered separately by the Court. While there is some overlap of subject matter, especially as they relate to Rule 26, the basic rationales for the two sets of amendments differ and the two sets can be viewed and discussed separately. 6 Colorado Rule 16, on the other hand, lags behind Rule 26. Proposed amendments to Rule 16, which are somewhat more extensive, have just been published and noticed for public hearing (see Court Business in this issue at page 201). Assuming some version of the proposed rule is adopted, the changes to Rule 16 will probably not take effect until at least July 1, Even though these proposals have not yet been acted on by the Supreme Court, this article discusses

2 them in some depth now so as to alert litigators to the nature of the proposals and to give them time to prepare for and adjust to the possible shifts in pretrial practice. Because the initial amendments to Rule 26 have been officially adopted, those changes are discussed first. This article then turns to the proposals submitted by the Civil Rules Committee to the Supreme Court for further revisions to Rule 16. ADOPTED REVISIONS TO C.R.C.P. 26 As they related to the disclosure and limited discovery provisions of Rule 26, the comments of the bench and bar, as revealed by the CBA Litigation Section poll, were generally more favorable than might have been expected when the Rule was adopted. 8 Almost any meeting of lawyers can reveal instances where the disclosure and limited discovery provisions of Rule 26 have been subject to abuse. However, it did not appear that they were any more subject to abuse than had been the case under the previous rules. Furthermore, those who expressed concerns about the new Rule 26 rarely had alternative proposals that would not create as many, or more, problems than those created by the revised Rule 26. As a result of these considerations, the Civil Rules Committee determined that a major overhaul of C.R.C.P. 26 was neither necessary nor desirable. Nonetheless, a number of provisions seemed to cause unnecessary problems and were susceptible to reasonably easy fixes without making particularly substantive changes to the Rule. Mandatory Disclosures Immediate Production of Disclosed Documents C.R.C.P. 26(a)(1)(B) requires a listing, together with a copy of, or a description by category and location of documents relevant to disputed facts with particularity. Under a literal reading of that provision, some lawyers provide the list, with the description by category of the documents, but then refuse to make those documents available unless the opposing party serves a document request under C.R.C.P. 34. Production of these mandatorily disclosed documents may then be delayed still another thirty days following service of the Rule 34 request for production. This practice appeared to be obstructive and wasteful and was not what was intended when Rule 26 was initially revised in Usually, documents disclosed and listed as being relevant are those the other parties at least will want to examine, and there appeared to be no reason for service of a separate request for production of documents or for a delay of an additional thirty days before the disclosed documents may be examined. Therefore, C.R.C.P. 26(a)(1)(B) was amended to make it clear that the documents that are listed must be made available for inspection and copying as though a request for production of documents had been served. The procedures governing the production or copying, therefore, will be those set forth in Rule 34. It is expected that counsel who lists documents will either provide copies to the other parties or make them available so that the other parties can determine which documents they

3 wish to have copied. In short, where voluminous documents are being disclosed, a listing of the category of documents will still be acceptable in lieu of copying them all. However, they at least must be produced to the opposing side without a separate Rule 34 request for production being necessary. Disclosure of Damages Information Disclosure of damages is required by C.R.C.P. 26(a)(1)(C). The Rule requires a computation of any category of damages.... Read literally, the Rule required, for example, a plaintiff in a personal injury case to provide a computation of all damages, including both economic and noneconomic damages. Thus, some courts ordered plaintiffs to provide computations of damages such as pain and suffering, physical impairment, and other non-economic damages. Although it is not easily apparent how such damages can be computed, particularly at the outset of a personal injury lawsuit, the imposition of that requirement sometimes placed plaintiffs in an untenable dilemma. If the plaintiff computed the damages at a low figure, it would make it virtually impossible to persuade a jury, in the face of being cross-examined on that computation, to award damages in excess of that amount. On the other hand, a computation of a high level of damages might well be used to attack the plaintiff s credibility and greed when, by the end of the case, it was apparent that such a high level of non-economic damages could not be sustained. Thus, this Rule has been amended to require a description of the categories of damages (for example, a plaintiff would have to disclose whether he or she was seeking damages for physical impairment in addition to pain and suffering), but the computation of damages is now limited to economic damages. Economic damages (such as lost wages, loss of future income, lost profits, or loss of benefit of the bargain), unlike non-economic damages, should be more readily capable of computation and disclosure, even at the outset of the case. The only other change made to the required disclosure provisions of Colorado Rule 26(a)(1) was the addition of an explicit reference following Rule 26(a)(1)(D) to the fact that disclosure must be made thirty days after the case is at issue. The Rule had previously included merely a crossreference to C.R.C.P. 16(b). Thus, litigators often were forced to return to that Rule to refresh themselves as to when disclosures had to be made. Expert Disclosure A simple addition was made to C.R.C.P. 26(a)(2)(A) to require that when parties disclose the identity of an expert, they also must disclose the expert s field of expertise. That disclosure of an expert should require this level of detail seemed relatively obvious, but apparently some attorneys declined to make that disclosure on the grounds that the Rule did not mandate it. Thus, in place of designating Doctor Smith and Doctor Jones as expert witnesses, the new designation would require the designating party to reveal that Doctor Smith is an expert in pulmonary oncology and Doctor Jones is an expert radiologist. Timing of Expert Disclosures

4 While the requirement for computation of damages in Rule 26(a)(1)(C) was changed to make the plaintiff s burden more realistic, a change in the timing of the Rule for disclosure of expert testimony should benefit some defendants. The provisions of Rule 26(a)(2)(C) relating to the timing of the disclosure of experts gave plaintiffs who were particularly cagey and well prepared the opportunity to make very early expert disclosures, which they might even have prepared prior to filing the complaint. Occasionally, this placed defendants in the position of having to produce their own expert reports within thirty days of receiving the plaintiff s expert s reports. This might have come at an extremely early stage of the litigation and before the defendants had an opportunity to engage in much discovery. Thus, the Rule has been amended to provide that a defending party is not required to serve its expert disclosures until ninety days before the trial date, regardless of when the plaintiff serves its expert s reports. Even if a plaintiff were to submit its expert reports early, the defendant will have time to complete most discovery and prepare its own expert reports after it has the opportunity to learn about the case. It is anticipated that this change will cause the plaintiff not to produce its expert reports early. However, because service of those reports normally is not made until as late as possible anyway, this rule change should not have any significant adverse impact on the preparation of cases for trial. Clarification on Disclosure Of Rebuttal Experts Since its inception, C.R.C.P. 26(a)(2)(C) (III) has contained a provision that has confused both courts and counsel. Rule 26 (a)(2)(c) was clearly intended by the committee that originally drafted it to require disclosures of plaintiffs expert reports 120 days before trial; disclosure of defendants expert reports ninety days before trial; and disclosure of plaintiffs rebuttal reports seventy days before trial. However, the language of subsection (III) required evidence intended to contradict or rebut evidence on the same subject matter identified in reports filed under subparagraph (a)(2)(b) to be made within twenty days. Some counsel and courts believed that a defendant in a case might be subjected to two disclosure dates: a disclosure of evidence rebutting the plaintiff s expert, due twenty days following the receipt of the plaintiff s expert reports; and a second disclosure of expert evidence that was not rebuttal evidence to be made thirty days after receipt of the plaintiff s expert reports. To eliminate that ambiguity, the reference in subsection (III)(a)(2)(B) has been changed to (III)(a)(2)(C)(II). The latter subsection refers only to the defending party s disclosures. Thus, it should be clear that the rebuttal evidence referred to in subsection (III) is evidence rebutting the defending party s expert disclosures. In other words, that subsection of the Rule will now properly relate to the complaining party s reply disclosures, not the defending party s disclosures. Privilege Logs Rule 26(a)(6) requires that a privilege log be produced for all documents withheld from disclosure. The log must contain sufficient information about the withheld documents to allow the

5 other parties to assess the applicability of the privilege claims. For reasons apparently lost in the mists of time, no such rule exists in the Colorado Rules with respect to documents sought in discovery rather than subject to disclosure. The omission is even more peculiar because such a provision is contained explicitly in F.R.C.P. 26(b)(5). Thus, parties in Colorado sometimes have had to rely on additional interrogatories to obtain a privilege log for documents withheld from discovery under claim of privilege. The Civil Rules Committee could see no reason for the omission or the dichotomy with the federal Rule and, therefore, relocated and broadened the requirements for a privilege log. The new requirement calls for privilege logs for documents whether withheld either from disclosure or from discovery. Moreover, the Rule is relocated to the same place as it exists in the federal rules Rule 26(b)(5). Filing of Disclosures Newly revised C.R.C.P. 26(a)(4) now makes it clear that where a party s initial disclosures are accompanied by copies of disclosed documents or other materials, or where expert disclosures are accompanied by expert reports or summaries, those added documents need not be filed with the court. Only the disclosures themselves should be filed with the court. Most trial courts had adopted local rules or practices that accomplished this result, but now it is clear in the Rule itself that disclosed documents are not to be filed with the court. Limits on Discovery Expert Depositions Perhaps the only area of significant controversy in the changed Rule 26 was that relating to whether expert depositions should be included in or excluded from the limitation of non-party depositions to two per party. This subject has been dealt with quite differently by judges around the state. Rule 26(b)(2)(A) states: A party may take one deposition of each adverse party and of two other persons. (Emphasis added.) Some judges (indeed, probably most) and most parties have felt that the first sentence of Rule 26(b)(4) that specifically states that parties may depose witnesses identified as experts whose opinions may be presented at trial, means that experts can be deposed in addition to the two non-party witnesses allowed within the presumptive limits of discovery. Moreover, many lawyers believe that it is critical to be able to depose any experts who may testify in order to discover the extent and basis of their opinions, as well as the assumptions on which the opinion may be based. However, reliance on the first sentence of Rule 26(b)(4) was misplaced. That sentence was added to the Rule because earlier versions of Rule 26 allowed depositions only with the approval of the court for good cause shown. The present first sentence was added to clarify that it really was permissible to take expert depositions as a matter of right (but without regard to the limits on numbers of depositions). 9 Other judges, and the original Ad Hoc Committee that drafted and revised Rule 26 in 1994, believed that expert depositions were included in the presumptive limitation of two depositions, unless special permission was obtained to take additional depositions for good cause, normally as

6 part of the Case Management Order ( CMO ). 10 Following the public hearing in 1993 concerning the newly proposed rules, the Colorado Supreme Court sent the rules back to the Ad Hoc Committee for further revisions, primarily aimed at placing stringent limitations on the amount of allowable discovery. 11 When the Ad Hoc Committee returned Rule 26 with limited discovery, the Ad Hoc Committee specifically included the following comment in its transmittal letter to the Supreme Court: These recommendations by the Ad Hoc Committee are a consensus. There were several Committee Members who felt that expert depositions should be excepted from the presumptive limitation on the number of depositions. The Committee felt, however, that because of the more elaborate disclosure of expert testimony, excepting experts from the presumptive number of depositions was not necessary and could undermine the philosophy that all discovery should be limited. 12 (Emphasis added.) Under any circumstances, the current Civil Rules Committee felt that it was no longer acceptable to continue the uncertainty and ambiguity that obviously had been engendered over the years. It recommended to the Supreme Court that the Rule be amended to incorporate the Ad Hoc Committee s original conclusion; that is, that expert depositions be included within the presumptive limitation of two non- party depositions. This position was roundly criticized in several written comments received by the Supreme Court and most of the statements at the public hearing on the proposed change. The CBA Litigation Section Council spoke unanimously in opposition to the Civil Rules Committee s suggestion. When the Supreme Court promulgated the final revisions to Rule 26, it decided to exclude expert depositions from the presumptive limitation on the number of depositions. The amended C.R.C.P. 26(b) (2)(A) now provides: A party may take one deposition of each adverse party and of two other persons, exclusive of persons expected to give expert testimony disclosed pursuant to subsection 26(a)(2). 13 (Emphasis added.) Additional Requests for Admission Relating to Genuineness of Documents In another area, the Civil Rules Committee agreed to expand the presumptive levels of subparagraph (b)(2)(e) of Rule 26, which now will allow an additional fifty requests for admission of the genuineness of documents. Because trial exhibits do not have to be identified until the preparation of the Trial Management Order ( TMO ), a party might not advise an opposing party until then that it will object to the authenticity of some of the opposing party s proposed exhibits. It may be too late by then for the offering party to obtain the necessary witnesses to authenticate the documents. The new provision should solve most of that problem. It will allow an offering party to seek, by way of requests for admission, the opposing party s admission that the documents are genuine, with the sanction that if the opposing party refuses to so admit, it may be faced with the offering party s costs in having to prove it. 14 To avoid mass requests that might attempt to place on opposing parties the need to review for genuineness all documents produced during the discovery phase of the case, the requests are

7 limited to only fifty separate documents (unless authority for more such requests are obtained separately from the trial judge). More important, such requests are limited to documents that the offering party intends to offer into evidence at trial. Good Cause for Additional Discovery The final change in Rule 26 is a simple numbering and wording change to promote clarity. In Rule 26(b)(2), the paragraph immediately following subparagraph (E) sets forth the definition of good cause, which must be demonstrated to obtain additional discovery beyond the presumptive discovery limits set forth in subparagraphs (A)-(E). Because the definitional paragraph was not separately numbered, some litigators incorrectly thought that the definition applied only to expanding the limits on requests for admission contained in subparagraph (E). By renumbering that paragraph as (F) and starting the paragraph with the words, In determining good cause to modify the limitations of this subsection (b)(2)..., (emphasis added) it should now be clear that the good cause definition applies to all modifications of presumptive discovery limits. As stated at the outset, the new changes to C.R.C.P. 26 should be easily digested by lawyers and judges and are basically limited to clarifying some unnecessary ambiguities in the existing language of the Rule. PROPOSED AMENDMENT TO RULE 26(b)(1) As noted above, an additional amendment to Rule 26 also has been proposed, based on the amendments to F.R.C.P. 26 in December This amendment tracks the amendment to F.R.C.P. 26(b)(1) and makes a basic change in the scope of authorized discovery in cases. Since the original adoption of both F.R.C.P. 26 and C.R.C.P. 26 about sixty years ago, the parties in civil cases have been allowed discovery of any unprivileged matter relevant to the subject matter involved in the pending action. Furthermore, the information sought in discovery need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 16 Thus, the litigation catchwords became relevant to the subject matter and reasonably calculated to lead to the discovery of admissible evidence. Over the years, this has been deemed to allow wide-ranging discovery and became something of a lightening rod to those who felt that litigation had become infected with abusive discovery designed either to drive the little guy into submission or to force the big guy into an unwarranted settlement, both to avoid the outrageous cost of discovery. Thus, over a period of several years the U.S. Judicial Conference s Advisory Committee on Civil Rules of the Committee on Rules of Practice and Procedure developed and finally proposed revisions to F.R.C.P These changes were approved by the U.S. Supreme Court on April 17, 2000, and became effective on December 1, The revised F.R.C.P. 26(b)(1) and proposed C.R.C.P. 26(b)(1) change the scope of discovery that may be initiated by any party to encompass only unprivileged matter that is relevant to the claim or defense of any party.... (Emphasis added.) This is intended to narrow the scope from the old

8 Rule s allowance of discovery relating to unprivileged matter relevant to the subject matter involved in the pending proceeding (Emphasis added.) However, what one hand taketh away, the other giveth back at least to some extent. Where parties find that the limitation of discovery to matters relevant to claims and defenses is too restrictive, they may move the court to expand it. Thus, the amendment to F.R.C.P. 26 and C.R.C.P. 26 continues by adding: For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. In this way, the original broad scope of discovery is still potentially available, but only with judicial oversight and, thus, independent control to avoid abuse. It should be noted that the changes to F.R.C.P. 26(a)(1) were not recommended for adoption in Colorado. Those changes limit disclosures in federal court cases to witnesses and documents that the disclosing party may use to support its claims or defenses, unless solely for impeachment. This restriction purportedly removes the requirement that a party initially disclose its own smoking guns. This limitation was rejected for Colorado Rule 26, in part, because it seemed at odds with the general philosophy of full disclosure adopted in both Colorado Rules 26 and 16 in Also, this limitation does not alleviate the need to produce the smoking gun document when requested in ordinary interrogatories and document requests. It can be expected that such discovery would undoubtedly be propounded as a matter of course. Thus, the revised federal rule change appears only to delay, not prevent, the likely revelation of such information. Although members of the Colorado Civil Rules Committee were admittedly hard-pressed to come up with numerous examples of truly abusive discovery in their own cases, they had heard of such things elsewhere. The general policy of the Civil Rules Committee is to have the Colorado Rules of Civil Procedure follow the federal rules as closely as possible, unless there is a good reason for deviation. In light of that general policy, 20 the change to F.R.C.P. 26(b)(1) did not seem so far outside of Colorado s efforts to improve on pretrial procedure, disclosure, and discovery to justify a recommendation against this change. PROPOSED RULE 16 As noted above, while changes to C.R.C.P. 26 have been officially adopted by the Colorado Supreme Court, the same is not yet true for the proposed changes to C.R.C.P. 16. These recommendations of the Civil Rules Committee await a public hearing on February 13, 2002, and decision by the Court is likely to be made before July 2002 (see proposed Rule 16 in Court Business in this issue at page 201). Thus, all of the following discussion must be read with the strong caveats that (1) the proposed rule might not be adopted at all, and (2) if it is adopted, it may well be changed in substantive ways that could render some of the following comments meaningless, if not misleading. However, proposed rule changes of the Civil Rules Committee are more frequently adopted in large part than not. Also, it seems important for litigators and judges practicing in state courts to have advance notice of the thinking behind the proposed changes. Thus, even at the risk of having some of the proposals changed, it seems desirable to explain the Civil Rules Committee s recommendations in some detail here. Rule 16 proved to generate more work and more alterations than Rule 26. At the outset, the Civil Rules Committee believed that the number of necessary changes to C.R.C.P. 16 would be few. However, as the Committee dug deeper, a feeling developed that it should do more than just fix the perceived problems in the Rule s wording. It concluded that it wanted to attempt to accomplish

9 three basic goals: (1) fix the problems that had been uncovered in several years of practical experience; (2) generally simplify the rules and make them more user friendly ; and (3) reduce as much as possible what the Civil Rules Committee felt was busy work court filings and legal documents that seemed to require more time, effort, and expense than benefits to trial preparation and trials. The end result of this effort is that the proposed changes look more dramatic than they are in fact. Purpose and Scope Of C.R.C.P. 16 One of the few portions of Rule 16 that remained completely unchanged is Rule 16(a), which sets forth the purpose and scope of the case and trial management rule. The Civil Rules Committee felt it to be both appropriate and desirable to retain the stated purpose of C.R.C.P. 16, which 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. The Rule 16 case and trial management procedure will continue to apply in all civil cases except for those cases previously exempted, such as domestic relations, probate, water law, and expedited proceedings. The closing sentences of C.R.C.P. 16(a) emphasize the necessity for timely disclosure of information and that the Rule may not be used to avoid timely responses to discovery. Introducing the Presumptive Case Management Orders Although Rule 16(a) escaped unscathed, proposed Rule 16(b) ended up being completely rewritten. However, with only two exceptions, the timing of events that have been in place since case management procedures were instituted in 1995 remains unchanged. Reasons for Rewriting Rule 16(b) Two primary factors underpin the complete revision of Rule 16(b). First is the difficulty created by the organization of existing Rule 16(b). Even before a reader arrives at subsection (1), the existing Rule has three unlettered paragraphs, two of which are organized by the unusual feature of whether the parties are represented by counsel. The key definition that establishes the timing of early events in a case the definition of when a case is at issue is buried in the second sentence of the first unnumbered paragraph of Rule 16(b). The third unnumbered paragraph of Rule 16(b) includes all of the basic steps that must be taken between the time a case is at issue and the filing of a CMO. However, the size and organization of this paragraph make it difficult to read or follow. In cases with pro se parties, none of the timing requirements apply until and unless addressed by the judge in the mandatory case management conference. 21 Thus, the Civil Rules Committee believed that rewriting the Rule to make it easy to read and follow on a chronological basis would be a substantial improvement.

10 The second major factor that lead to rewriting C.R.C.P. 16(b) was the experience of the Civil Rules Committee that, except in big cases, CMOs were becoming increasingly uniform boilerplate and, therefore, bereft of thought or meaning. Virtually identical CMOs were being filed in numerous cases with little change other than, sometimes, the amount of discovery to be authorized. Even with respect to discovery, it appeared that most CMOs were adopting the presumptive discovery limitations set forth in C.R.C.P. Rule 26(b)(2). Nonetheless, even such boilerplate CMOs must be exchanged by the parties, reviewed by the lawyers, and filed at the expense of parties who gain little benefit from the effort. Rather than continuing to require the preparation of these largely pro forma CMOs, the Civil Rules Committee decided to transform the previously negotiated and filed CMO into a presumptive CMO. Thus, for many cases, the form of the CMO will be the one set forth in proposed C.R.C.P. 16(b). Only those portions of the presumptive CMO that the parties desire to change will need to be discussed and presented to the court. As previously noted, most of the provisions of the new presumptive CMO are taken directly from the existing provisions of Rule 16(b) and will not affect the timing of pretrial preparation. The first sentence of proposed Colorado Rule 16(b) advises litigants that unless they want a modified or amended CMO, they will not have to file a CMO and that the ten subsections of (b) will serve as the CMO until superseded by the TMO. Although any provision of the presumptive CMO may be modified pursuant to proposed (c) or amended pursuant to proposed (e), unless steps are taken to so modify or amend it, proposed (b) will serve as the CMO governing most of the case. At Issue Date Subsection (b)(1) repeats the definition of when a case is at issue that has been contained in existing C.R.C.P. 16 for the last several years. The definition is identical to the existing version, but has been moved to the beginning of the section because it establishes the trigger date for the following dates in the CMO. Placing the definition at the beginning of subsection 16(b) also will make it easy to find. Thus, a case still will be at issue when all parties have been served and all pleadings permitted by C.R.C.P. 7 have been filed or defaults or dismissals have been entered against non-appearing parties. Alternatively, the case may be at issue on some other date if the court orders it. Responsible Attorney Proposed subsection (b)(2) establishes the definition of the responsible attorney. Again, this definition is taken verbatim from the existing C.R.C.P. 16. The definition is necessary so that at least one person is identified as bearing the responsibility for initiating and overseeing the various events during the litigation. The definition was moved to its own subsection so that it would not have to be repeated several times as it is in existing Rule 16. The term responsible attorney is defined for purposes of this Rule, so that the definition will apply both to provisions in Rule 16(b) relating to CMOs and in Rule 16(f) relating to TMOs. As in the existing Rule, the responsible attorney will be the plaintiff s counsel, unless the plaintiff is unrepresented. If the plaintiff is unrepresented, the defense counsel who first enters an

11 appearance in the case will be the responsible attorney. The responsible attorney is charged in this section with scheduling conferences among parties, submitting the certificate of compliance called for in subsection (b)(7), preparing any proposed modified CMOs, and preparing the proposed TMO. These tasks are the same ones required under existing practice for the responsible attorney, with the addition of preparing and filing the new certificate of compliance. Parties Confer Following the two definitional subsections, the remainder of the presumptive CMO, is set forth in chronological order. Proposed subsection (b)(3) still requires that fifteen days after the case is at issue, lead counsel and any unrepresented parties must confer about the nature and basis for any of the claims and defenses and the matters subject to disclosure under C.R.C.P. 26(a)(1). Because presumptive CMOs will be the norm, the parties are also admonished to discuss whether modifications to the presumptive CMO will be needed. Trial Setting Under existing C.R.C.P. 16, the CMO is to contain a statement of the trial date or the date by which it will be set. 22 Under the proposed practice, the responsible attorney must set the case for trial within thirty days after the case is at issue, unless otherwise ordered by the court. 23 There are a number of courts, particularly in the non-metropolitan districts, that refuse to set trial dates until substantially later in the case. The provisions of proposed subsection (b)(4) allow for this kind of flexibility. Disclosures CMOs under the existing rule require each party to set forth a description of disclosed information or a schedule of dates when the disclosure should be made. The existing CMO also contains statements of the need for expert witnesses and a schedule of disclosure for expert reports. Finally, the present CMO form requires a statement acknowledging a continuing duty to supplement or correct disclosed information. 24 Proposed subsection (b)(5), however, calls for disclosures to be served no later than thirty days after the case is at issue, as required in C.R.C.P. 26(a)(4), not at some later date. With respect to disclosures of experts, the presumptive CMO simply calls for that disclosure to occur in accordance with Rule 26(a)(2). C.R.C.P. 26(a)(2)(C) already establishes presumptive timing for expert disclosures. It was the Civil Rules Committee s belief that most CMOs under present practice adopt the presumptive time period set forth in Rule 26(a)(2)(C) and that it was, therefore, unnecessary to repeat that timing in a filed CMO. Also, the old requirement that parties shall indicate the need for expert witnesses was deemed unnecessary partially because many cases do not include expert testimony; because the necessity for experts can be requested in discovery (if counsel cannot discuss the matter informally, as they should be able to do); and because if the issue is genuinely significant, the concerned party may seek a modified CMO to deal with that issue. Finally, the old provision that the parties acknowledge the continuing duty to supplement their disclosures was deemed surplusage because the rules clearly do contain that requirement 25 and

12 because the statement contained in most of the old CMOs was a rote recitation of the C.R.C.P. 16 requirement, normally devoid of any attention by the parties. Exploration of Settlement Proposed subsection (b)(6) requires that the parties explore the possibility of settlement not later than thirty-five days after the case is at issue. This is also true of the current rule. Certificates of Compliance The filing of the CMO under the present practice, even if boilerplate and relatively meaningless, gives the court notice of the fact that the parties are indeed moving the case along, and provides some incentive for the parties actually to comply with the requirements of C.R.C.P. 16. With the presumptive CMO proposal, there would be no similar occasion to notify the court or force the parties to comply with the Rule. Therefore, the Civil Rules Committee concluded that the Rule should require the filing of a certificate of compliance to fulfill these roles. The certificate is to be filed no later than forty-five days after the case is at issue, the same time within which a CMO is to be filed under the present practice. The certificate is to be filed by the responsible attorney and only needs to observe that parties have met and conferred, set a trial date, and engaged in disclosures and settlement discussions as required by subsections (b)(3)-(6). If the parties have not completed those steps, the responsible attorney is to identify which requirements have not been fulfilled and to state why. Once the court receives the certificate of compliance, the court will be in a position to determine whether any further or immediate action is needed on its part, including whether it wants to convene a case management conference. Amending Pleadings At present, the CMO asks the parties to establish a deadline for adding more parties or amending pleadings. 26 The presumptive CMO, in subsection (b)(8), establishes 120 days after the case is at issue as that time limit. If, for some reason, the parties believe that length of time will not be sufficient, they can always request that portion of the presumptive CMO be modified pursuant to proposed Rule 16(c). Pretrial Motions Presently, the parties can propose their own timing for the filing of pretrial motions. However, most parties adopt the provisions of the TMO rule that called for motions to be filed no later than fourteen days before trial. 27 The presumptive CMO rule, however, now calls for all pretrial motions to be filed no later thirty-five days before trial, except for motions for summary judgment, which must be filed no later than seventy-five days before trial. The earlier deadline for filing pretrial motions was recommended in response to numerous comments from the judges indicating that they simply did not have time to rule on motions that were filed only fourteen days before trial. Additionally, when the motions are filed that late, it makes it extremely difficult for the responding

13 party to prepare an answer brief. Finally, by requiring the deadline to be thirty-five days before trial, the TMO (submitted thirty days before trial) will be able to provide a complete list of unresolved and outstanding motions for the judge s attention and action. Discovery Discovery under subsection (b)(10) of the presumptive CMO adopts the presumptive limitations on discovery established by Rule 26(b)(2). Again, it was the sense of the Civil Rules Committee that most CMOs now incorporate those presumptive discovery limitations. However, if the parties desire to have more than the presumptive discovery under the proposed rule, they will be free to seek a modified CMO to allow greater discovery. The grounds for doing so will be the same as under prior Rule 26(b)(2)(E). 28 As is the case under the current rule, unless there is a special order of the court, discovery under the proposed rule is not to commence until forty-five days after the case is at issue so that the pleadings will be settled and the parties will have received the disclosures from the opposing party before they embark on additional discovery. 29 Because the presumptive CMO includes the presumptive discovery limitations of Rule 26, the discovery that will be authorized beginning at forty-five days after the at-issue date will be only that authorized by and within the limits of Rule 26(b)(2). If additional discovery is sought, commencement of that additional discovery will have to await the approval and entry of a modified CMO by the court. 30 Discovery Cutoff Fifty Days Before Trial Subsection (b)(10) also includes the second change in scheduling from the current practice. 31 Under the presumptive CMO, discovery must be completed fifty days before trial. Under the present provisions, discovery must be completed no later than ten days before the filing of a TMO. Because the filing date for the TMO is thirty days before trial, the existing discovery cutoff is effectively forty days before trial. 32 The earlier cutoff for discovery under the proposed rule is recommended in order to facilitate some of the changes that are being proposed in the TMO regime, described below. Modified Case Management Orders To preserve the salutary concept of differential case management, the Civil Rules Committee determined that the presumptive CMO needed to be capable of modification when the parties found that the presumptive time limits or discovery limits in the presumptive CMO were or should be inapplicable in their case. Under the existing practice, the parties can submit a CMO to the court with a variety of features not presently contemplated under the new presumptive CMO. Once the court approves the variations, the CMO then controls the progress of the case. 33 Should the parties later find that the provisions of the CMO need to be changed, they can request the court to modify the CMO by filing a motion to that effect. 34 That form of modified CMO is, under the phraseology of the proposed rule, the equivalent of an amended CMO.

14 Proposed subsection 16(c) allows the parties to seek modification of any of the provisions of the presumptive CMO. To recognize the fact that many modifications to CMOs are agreed to by all parties and, therefore, necessitate somewhat different treatment by the court than modifications that are genuinely disputed, the proposed new subsection 16(c) establishes somewhat different procedures for stipulated modified CMOs and disputed modifications. In either of those circumstances, however, it is necessary for the parties to seek modification only as to the specific provisions of the presumptive CMO that they want changed. For example, if the parties want to change only the discovery limitations, they do not need to file an entire proposed CMO or request any modifications of the other subsections establishing the provisions of the presumptive CMO. Likewise, whether or not the proposed modification is stipulated or disputed, the request for the modified CMO must be filed not later than forty-five days after the case is at issue. This forty-five-day filing requirement is consistent with the current rule requirement that CMOs be filed within forty-five days after the case is at issue. Where the parties are in agreement as to the proposed changes to the presumptive CMO, they may file a stipulated proposed modified CMO. This stipulated document must still, as in the present practice, be supported by a specific showing of good cause for each modification sought. This is especially true where modifications are sought on the presumptive discovery limitations of Rule 26(b)(2). In that case, the specific showing of good cause must set forth grounds of good cause as contained in Rule 26(b)(2)(F)(i)-(iv). 35 As in the existing practice, the mere fact that parties stipulate to change the presumptive CMO will not bind the court. The court may approve the stipulated order and enter it as a matter of course. However, if the court wishes to reject or modify the proposal, the court may set a case management conference to discuss the proposed changes with the parties. In cases in which the parties cannot agree to some or all of the proposed modifications to the presumptive CMO, a proposed modified CMO may be filed with the court indicating which provisions are disputed. First, under such circumstances, the proposed order must contain specific alternative provisions as proposed by the disputing parties, so that the court can see and understand the specific nature of the disagreement. Second, the proposed order and the disputed provisions and alternatives must be supported by specific showings of good cause for each modification sought. The motion for a disputed modified CMO is to be signed by all parties or contain a statement as to why it is not signed, as, for example, where one party simply refuses to participate in the discussions. Where a proposed modified CMO is disputed, it must be considered by the court at a case management conference pursuant to Rule 16(d). Case Management Conferences C.R.C.P. 16(d) provides that case management conferences are to be held either where there is a disputed modified CMO being presented to the court or if any counsel or unrepresented party believes it would be helpful to conduct a case management conference. Additionally, as set forth in subsection (c)(1), the court may set a case management conference to discuss a CMO. If a party wants a case management conference, a notice to set the case management conference is to be filed

15 stating the reasons why the conference is requested. In the event the notice relates to a disputed modified CMO, the Rule requires that the court shall set a case management conference. If any of the parties believe it simply would be helpful to conduct a case management conference, and if the court determines such a conference should be held, the court may set the conference. The Rule also is explicit that the conference may be conducted by telephone, which may well be the expected situation where counsel are located at some distance from the courthouse. Amendment of the Case Management Order C.R.C.P. 16(e) allows for the amendment of either presumptive CMOs or modified CMOs. The primary differences between an amended CMO and a modified CMO are that an amended CMO may take place any time later than forty-five days after the case is at issue. However, where a party seeks an amendment to an existing CMO, either presumptive or modified, in addition to the requirement that good cause be shown for a modified CMO, the motion for the amendment must show good cause for the timing of each requested amendment. In other words, the Rule contemplates that there must be a showing as to why the motion to amend could not have been made earlier and/or why the opposing party will not be prejudiced by the belated amendment. Trial Management Order While the proposed rule relating to CMOs was totally rewritten without much change in substance, the rule relating to TMOs was not dramatically rewritten, but underwent a number of more substantive changes. As is true under the current practice, the proposed TMO rule establishes different procedures for cases involving unrepresented parties and cases in which all parties are represented by counsel. In cases with unrepresented parties, the responsible attorney is to file a notice to set a trial management conference after discovery has been completed (presumptively fifty days before trial) and the court shall conduct a trial management conference and issue a TMO. The only new wrinkle to the existing regime (other than the form of the TMO, which is discussed below) is that rather than allowing the voluntary submission of a proposed TMO, as is presently the case, the proposed rule requires the responsible attorney to submit a proposed TMO prior to the trial management conference and, in any event, no later than thirty days before the trial date. 36 In cases in which all parties are represented by counsel, proposed C.R.C.P. 16(f)(2)(A) requires lead counsel to confer to develop a jointly proposed TMO. Scheduling of the meetings and preparation of the proposed TMO are the responsibility of plaintiff s counsel. The form of the TMO was one of the principal areas in which the Civil Rules Committee sought to eliminate preparation and inclusion of information that is frequently not used by the parties following the preparation of the TMO. Instead, the Committee sought to concentrate the attention of the TMO on matters that are crucial to the presentation of the trial itself. In this respect, the greatest substantive changes took place in conjunction with the listing of witnesses and exhibits and the identification of deposition testimony. The proposed TMO rule requires that counsel exchange a draft of lists of witnesses and exhibits and provide copies of exhibits not later than forty days before trial. Allowing counsel time to

16 prepare these lists was the primary motivation for moving the discovery cutoff back to fifty days before trial. Listing Trial Witnesses Forty days before trial, counsel are to exchange drafts of witness lists that provide the name, address, and telephone number of the witnesses, together with the anticipated length of each witness s testimony, including cross-examination. This will necessitate revealing to the other side the witnesses and the expected length of direct examination so that the opponent can predict the amount of time needed for cross-examination. By listing the anticipated length of each witness s testimony, the parties will give themselves and the court a sense of how long the trial is likely to take. The listing also should cause the parties to be more realistic about who they are listing and how long they are claiming the witnesses will testify. The identification of anticipated length of testimony should not create an inflexible limitation on the duration of each witness s trial testimony. However, it should at least give the court some ability to keep the testimony of the witnesses within reasonable bounds. Counsel are asked to provide the anticipated length of testimony, including cross-examination. This is presently required under C.R.C.P. 16(c)(4), but is not required until seven days prior to trial. The Civil Rules Committee does not expect that moving the requirement to estimate the anticipated length of testimony back to forty days before trial will substantially change the difficulty of providing that information. As under the present practice, witness lists must list persons whom a party will call and those whom a party may call. 37 However, it is now explicit that the two lists must be separate. Furthermore, the Rule now requires that when a party lists a witness as a will-call witness, the party must ensure that the witness in fact will be available to testify at trial. The listing party is not required to have the witness testify, but is required to ensure the presence of the witness even if another party wishes to call the witness at trial without having to subpoena the witness itself. This requirement will prevent some parties from sandbagging others by announcing that they will call a witness and then declining either to call the witness or to make the witness available for trial after the other parties have not gone to the trouble of subpoenaing the expected witness. It also will avoid the necessity for other parties to serve multiple subpoenas on a witness to make sure the witness will be available for trial. Moreover, if a party does not list a witness as a will-call witness, the other parties will be on clear notice that they should subpoena the witness if they truly want to have the person available for trial, or should raise the issue at the trial management conference. Trial lawyers should expect this listing and estimation of time for testimony to be a part of the TMO that judges will scrutinize more carefully than other parts. The judges will probably want to do so to enhance trial efficiency and to assure good faith disclosure. Expert witnesses are also to be listed, and the list must indicate whether the opposing party accepts or challenges the expert s qualifications. Although that information may well not be included in the draft of the list presented forty days before trial, it must be included in the final list that will be submitted with the TMO.

17 Finally, with respect to witnesses, the present TMO requires parties to give notice, at least seven days before trial, of the order in which they will call their witnesses. Proposed Rule 16(f)(3)(VI)(A) makes such a listing discretionary with the court. This should help alleviate the situations where one party would object to another party calling witnesses out of order, even though the necessity for doing so was legitimate and justified by the witness s unavailability. Listing Trial Exhibits Part VI(B) of the TMO relates to the listing of exhibits. The proposed rule provides that plaintiffs are to list exhibits by number, and defendants are to list them by letter. However, the proposed rule specifically allows the parties to stipulate to other numbering systems. This is particularly useful where the parties have adopted the practice early in the case of consecutively numbering all deposition exhibits so that exhibit references will be uniform regardless of whose deposition is being taken. Many times, it is irrelevant which party has offered an exhibit, and experience shows that there is no particular need to have trial exhibits admitted without any break in the numbering sequence. Juries seem to be able to understand cases in which Exhibits 1, 7, 8, and 10 are admitted and the remaining exhibits are never offered. If a court wishes to have the jury avoid confusion as to which party offered an exhibit, it is always possible to use the preexisting numbered list and add a prefix of the letter of the party or the party s initials to distinguish that particular exhibit. 38 Once the additional exhibit lists are exchanged by counsel forty days before trial, if any party wishes to object to the authenticity of any exhibit, the objection is to be noted on the list, together with the ground therefor. Thus, the opposing party will have the thirty days from the time the final list is submitted with the TMO before trial to shore up any proof problems with respect to the exhibits for which there are objections as to authenticity. Furthermore, parties may stipulate to the admissibility of an exhibit on the lists so that there will be no need to go through the foundational steps for the exhibit. Frequently, a trial court will simply admit all those exhibits that the parties have stipulated as admissible at the outset of the trial. This way, identification questions directed to those exhibits during trial can be avoided. The existing rule calls for a party also to list any objections as to the admissibility of exhibits on the list. 39 That provision was rejected and deleted by the Civil Rules Committee because the relevance or materiality of an exhibit frequently will not be known until trial. Removing the requirement that objections as to admissibility be listed should reduce the number of such objections on exhibit lists and will allow those objections to be more thoughtfully considered at trial, when the circumstances surrounding the exhibit and its relevance will be known. The parties will still be required to present proposed, excerpted, or highlighted exhibits at the time the TMO is submitted. This will give the court time in advance of trial to determine whether they should be admitted and submitted to the jury. The Rule also specifies what should be the common practice: that a set of documentary exhibits should be provided to the court for its own use on or before the date of trial. The language giving the court discretion to admit highlighted or excerpted exhibits was moved from the portion of the Rule relating to listing exhibits, Part VI(B), to the portion of the Rule

18 relating to the makeup of jury notebooks, Part VI(C). The Civil Rules Committee thought it more appropriate to include this provision in the latter section. Following the exchange of lists forty days before trial, counsel for the parties are to attempt to agree on the contents of the proposed TMO and, as under the current practice, where matters are disputed, they may be so designated and a trial management conference will be held. The proposed rule requires the parties to present specific alternative provisions for any of the disputed provisions. 40 Form of the Trial Management Order TMOs frequently include long restatements of the claims and defenses, discussions of the law that are either uselessly perfunctory or equally uselessly exhaustive, and other matters that neither the parties nor the court will ever look at again following the preparation of the TMO. Modifications were made to the requirements for TMOs that the Civil Rules Committee hopes will reduce the amount of such useless paperwork. While judges want to be given some indication as to the nature of the case they may have to try, they normally do not want to read long argumentative expositions of each side s view of the case. Thus, I of the TMO has been rephrased to call for a brief description of the nature of the case and a summary identification of claims and issues remaining for trial. It is anticipated that such a section would say something such as: This is a product liability action for damages arising from an allegedly defective lawn mower. The remaining plaintiff s claims are for negligence, strict liability, and breach of implied warranty for a particular purpose. The defenses are comparative fault, statute of limitations, and failure to mitigate damages. The current rule provides that claims or defenses not at issue during the trial should be designated as withdrawn. However, some of those claims may have been dismissed on summary judgment, subject to appeal, and are not actually withdrawn by the asserting party. Therefore, the proposed rule has been amended to provide that such claims or defenses not at issue in the trial would be designated either as withdrawn or resolved. Section II of the TMO calls for a listing of stipulated facts. Under the present rule, a jury instruction containing these undisputed facts is required to be attached to the TMO. This has been changed to provide that such an instruction be submitted along with the other instructions shortly before trial. Given the necessity to instruct on stipulated facts, it would seem that such stipulations should normally be limited to matters that will avoid the need for testimony and will genuinely shorten the trial. If matters are going to be testified to anyway, even if they are uncontested, this author believes there is little reason to highlight just some of those portions of testimony for inclusion in a special instruction to the jury. Pending pretrial motions are to be listed in proposed TMO III. Since pending motions should be filed thirty-five days before trial, unless that deadline in the presumptive CMO were moved closer to trial, the parties should be able to list all such motions that have not been handled. This also will make it easy for the judge to ascertain quickly what matters are outstanding and need to be resolved.

19 Rather than requiring the parties to set forth a list of controverted legal issues with citations of authority, proposed TMO Part IV calls on the parties only to indicate whether they wish to file trial briefs and, if so, the schedule for the filing of those briefs. Part IV also provides that trial briefs must be filed ten days before trial instead of the seven days provided in current Part IV. The additional three days was sought by the judges to give them more time to become familiar with those briefs. The Civil Rules Committee felt that the current requirement to list controverted legal issues with citation of authority was vague and subject to wide variations of usefulness and rigor. As a result, the parties were being asked to try to guess what any individual judge might want. Also, there are many cases in which the parties and the court are already so familiar with the basic principles of law that listing them with citations is a waste of everyone s time and money. Thus, it was deemed more useful to allow the parties to decide if they wanted to file trial briefs in which they could set forth the legal authorities on which they want the court to focus. The TMO is still to include an itemization of damages or other relief sought. However, the language in this portion of the TMO has been changed to mirror changes adopted in C.R.C.P. 26(a)(1)(C). 41 In addition to the previously discussed changes in witness and exhibit lists, proposed Part VI(D) of the TMO includes substantive changes in the handling of the designation of deposition testimony. Specific deadlines have now been included within the Rule as to when deposition testimony must be designated. The procedure utilized is essentially like that used by a number of state trial judges and by all of the federal judges in Colorado. Under the new provision, deposition testimony (and other preserved testimony for example, testimony from a prior trial) is to be designated by the proponent of the testimony at least twentyfive days before trial. Other parties may provide additional designations at least ten days before trial, and the proponent may provide reply designations five days before trial. A copy of such testimony to be presented at trial is to be submitted to the court at least three days before trial. Objections to any of the proposed testimony also are to be presented at that same time. CONCLUSION As previously noted, the Colorado Supreme Court will hold a public hearing on the proposed changes to Rule 16 on February 13, 2002, at 3:00 P.M. The Court was willing to reject the Civil Rules Committee s proposal to limit expert depositions under Rule 26(b)(2)(A) in light of the comments submitted at the public hearing. Thus, lawyers should not assume that the adoption of the proposed changes to Rule 16 is a foregone conclusion. Careful study of and comment on the proposed changes will be helpful to the Court and to practicing lawyers. The bench and bar can expect whatever changes are adopted to be effective as of July 1, 2002, although the Court could decide to delay their effective date until the beginning of The history of all litigation rule-making teaches that these Colorado Rules will need further modification. However, it is hoped that the proposed changes will clear up some ambiguities that have existed in the Rules, simplify some of the paperwork that has to be presented, and help the parties focus more effectively on what actually will be presented during the trial.

20 NOTES 1. See Holme, Colorado s New Rules of Civil Procedure, Part I 23 The Colorado Lawyer 2467 (Nov. 1994); Part II, 23 The Colorado Lawyer 2711 (Dec. 1994). 2. See, e.g., Holme, Just, Speedy, and Inexpensive: Possible Simplified Procedure for Cases Under $100,000, 29 The Colorado Lawyer 5 (March 2000) at nn , 16, 20, and 34, and accompanying text The Colorado Lawyer 105 (Feb. 2001). 4. The Colorado Supreme Court s final version of revised C.R.C.P. 26 was published at 30 The Colorado Lawyer (Aug. 2001) The Colorado Lawyer 158 (July 2001). The Supreme Court has not yet acted on the proposal as of the time of this writing. 6. See adopted revisions to C.R.C.P. 26, supra, note 4 and accompanying text and proposed amendment to C.R.C.P. 26(b)(1), infra, note 16 and accompanying text. 7. The Colorado Supreme Court has adopted a policy of making rule changes effective only on January 1 or July 1 of the year, except in extraordinary situations, so that practitioners and judges do not have to adjust themselves to rule changes every month or so. 8. See Holme, supra, note See Wright, Miller, and Marcus, 8 Fed. Prac. & Proc.: Civil 2d 2029 (2d ed. 1994). 10. See Holme, supra, note 1 at Id. at Final Report and Recommendations of the Ad Hoc Committee on Rules Concerning Case Management, Disclosure/Discovery and Motions Practice in Civil Litigation (Jan. 4, 1994), reprinted in Colorado s New Civil Rules on Case Management, Disclosure/Discovery and Motions Practice (Denver, CO: CLE in Colorado, Inc., 1994) at vii The Colorado Lawyer 130 (Aug. 2001); see also Notes to Changes Adopted in 2001, id. at See C.R.C.P. 36(a) and 37(a)(4) The Colorado Lawyer 158 (July 2001). 16. F. R.C. P. 26(b)(1); C.R.C.P. 26(b)(1) F.R.D. 354 (2000).