General Discovery Process for Civil Lawsuits in Colorado Courts
A major procedural part of civil lawsuits initiated in Colorado and lawsuits initiated all around the country is the discovery phase of the lawsuit. The discovery process is the information finding phase of the lawsuit and enables a party to seek and obtain information from other parties involved in the legal action.
The limits on what information is discoverable during discovery are relatively broad in nature and is designed to enable parties to, at least in theory, find all information relevant to the case. More specifically, information a party has is discoverable as long as it is relevant in some way to the claims at issue in the case or could lead to the finding of information that is relevant. For civil cases in the Colorado court system, discovery is generally governed by Colorado Rules of Civil Procedure (“C.R.C.P”) 16, and 26-37.
Discovery Procedure in Colorado Courts
The first step in the discovery process is governed by C.R.C.P. 26(a)(1) and requires each party to turn over information early in the case – these are called initial disclosures. In particular, the rule mandates that each party, of their own accord and without waiting for a specific discovery request, turnover disclosures which include:
(A) the name and contact information, if known, of any individuals or entities likely to have discoverable information relevant to the claims or defenses asserted in the lawsuit;
(B) a listing or a description by category, of the subject matter and location of all documents, data compilations and tangible things in the possession or control of that party and that are relevant to the claims and defenses asserted in the lawsuit;
(C) a description of the categories of damages sought, if any, and a computation of any category of economic damages claimed by the disclosing party and any documents or other evidentiary material relevant to damage calculation; and
(D) any insurance agreement under which any person carrying on an insurance may be liable to satisfy part or all of a judgment which may be entered in the action.
These initial disclosures are due within 28 days of the “at-issue” date, which is the date when all parties have been served, all answers or responsive pleadings have been filed as permitted under C.R.C.P. 7, and all defaults or dismissals have been entered. See C.R.C.P. 16.
Once initial disclosures are turned over, the next step is the Case Management Order which will set the discovery limitations in the case and the general timeline for the other procedural aspects of the case, including when expert disclosures are due, when summary judgment is due, and what day trial is set for. See C.R.C.P. 16. Generally speaking, if the case goes fully into discovery, the parties will have the ability to exercise all discovery mechanisms, which includes submitting written interrogatories, requests for admission, and requests for production of documents; and taking depositions of parties and witnesses. These mechanisms are addressed in further detail below.
Written interrogatories are essentially written requests for information that are served on the opposing party. The presumptive number of written interrogatories each party is allowed to serve on another party is 30. See C.R.C.P. 26(b)(2). This number can be altered either by the court or a party may request additional interrogatories for good cause shown. Id.
Importantly, the Colorado Supreme Court has promulgated pattern interrogatories that parties can either use directly or look to for guidance in drafting their own. Examples of pattern interrogatories approved by the Colorado Supreme Court are:
Pattern Interrogatory 6.1
Do you attribute any physical, mental, or emotional injuries to the incident
Pattern Interrogatory 6.2
Identify each injury you attribute to the incident and the area of your body affected.
Written interrogatories are specifically governed by C.R.C.P. 33 which describes how interrogatories must be responded or objected to. In particular, if a party objects to answering a particular interrogatory, the objection must be stated in writing and with particularity in order preserve the objection. See C.R.C.P. 33. Further, the answers to the interrogatories must be signed by the party responding to them and any objections must be signed by the attorney making them. Id. Once served, a party has 35 days to respond to written interrogatories or make the necessary objections. Id.
Additionally, parties responding to interrogatories should note that their responses are sworn responses; accordingly, they can be used against them in court as prior statements. Id. at (c). Therefore, responses to interrogatories should be adequately prepared and well thought out in relation to the strategy of the case.
Requests for Admission
Similar to written interrogatories, requests for admission are requests in writing that ask a party to admit or deny a specific fact or application of law to a fact. Generally speaking, requests for admission are oriented towards determining what facts are in dispute and can be used to narrow the scope of the issues to be tried at trial. Under the presumptive limitations of C.R.C.P. 26(b)(2), each party is entitled to serve up to 20 requests for admission on each adverse party unless otherwise modified.
The specific requirements of responding to and objecting to requests for admission are governed by C.R.C.P. 36. In particular, C.R.C.P. 36 indicates that a party may serve upon any other party a written request for admission for “the truth of any matters within the scope [of the issues in the lawsuit] . . . that relate to statements of opinions of fact or of the application of law to fact.”
Once served with requests for admission, a party has 35 days to respond to them. Importantly, if the party does not respond in the appropriate time frame, all requests for admission will be deemed admitted. This can have significant impacts on a case since requests for admission are frequently directed towards facts which, if admitted, will establish liability for the defending party. See C.R.C.P. 36(b).
Additionally, similar to written interrogatories, the responding party must sign with respect to the substance of them while, if any objections are made, the responding party’s attorney must sign with respect to the objections. Id. Examples of requests for admission in a person injury case are given below:
Admit that on the date of the accident, you were driving your car negligently.
Admit that on the date of the accident, your car struck the plaintiff causing him injuries.
Admit that if you had not been driving your car negligently on the date of the accident, the plaintiff would not have been injured.
Requests for Production of Documents
Requests for production of documents are requests asking the other side to produce certain documents they have in their possession. Under the presumptive limits of C.R.C.P. 26(b)(2), each party is permitted to serve 20 request for production of documents on each adverse party unless otherwise modified.
Requests for production of documents are specifically governed by C.R.C.P. 34 which provides that all requests shall set forth the documents to be provided, either individually or by category and described with reasonable particularity; and set forth a reasonable time, place, and manner in which the documents should be produced.
Once served with requests for production of documents, the responding party has 35 days to produce a written response to the request and shall produce the requested documents either at the time and place indicated in the request or at another reasonable time as stated in the written response. See C.R.C.P. 35. Any objections to producing documents must state whether any responsive documents are being withheld and state the grounds for that objection. Examples of requests for production of documents include:
Produce all documents used by you or examined by you in preparing your responses to plaintiff’s prior discovery responses, specifically plaintiff’s prior requests for admission and all written interrogatories.
Produce all documents that pertain to plaintiff’s claimed injuries. In particular, but not limited to, medical documents referencing plaintiff’s treatments, diagnoses, or medical examinations.
Depositions are opportunities to interview and ask questions to opposing parties or witnesses involved in the lawsuit. Depositions in Colorado courts and their use at trial are governed by C.R.C.P. 26, 27, 28, 30, 31, and 32.
In general, there are two ways to conduct depositions – (1) orally, and (2) through written questions. Because depositions are typically an information finding mechanism where one wants first-hand access to the party or witness being deposed, oral depositions are by far the most common method of deposing an individual. Written depositions have serious disadvantages including limiting the ability of the deposing attorney to ask immediate follow-up questions and, thus, the ability to receive candid answers on the spot.
Presumptive limits for depositions are governed by C.R.C.P. 26(b), which indicates that each party is allowed to depose the adverse party and up to two other persons, exclusive of retained experts – that is, all retained experts may be deposed and do not affect the presumptive limits. These presumptive limits may be modified for good cause by the court or upon motion by a party. See C.R.C.P. 26.
Oral depositions are specifically governed by C.R.C.P. 30 and require that, in conformance with C.R.C.P. 121 § 1-12, a “party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action” which shall state the time and place for the deposition. Generally speaking, “reasonable notice” requires notice to be given at least 7 days in advance; however, good practice requires that the deposing party confer with the opposing party’s attorney to schedule a reasonably convenient time. See C.R.C.P. 121 § 1-12. Frequently, notices for depositions are given more than 7 days out due to scheduling conflicts and to give counsel time to prepare.
Additionally, there are multiple methods of taking oral depositions, including in-person and through electronic means. Under C.R.C.P. 30(b)(7) parties can stipulate or request an order from the court that the depositions be taken by electronic means – for example, by telephone or videoconferencing methods.
In contrast to oral depositions, written depositions are governed by C.R.C.P. 31 and are similar to serving written interrogatories. An important difference is that written deposition questions must be answered before an officer of the court who is able to swear in the deposed individual as opposed to the individual just writing answers and signing the responses. See. C.R.C.P. 31. In general, the deposing party serves written questions on the person to be deposed with the name of the individual whom the deposition will be taken in front of. Parties may then serve cross-examination questions at a later date and re-direct questions subsequent to any cross-examination questions. Id.
One important aspect of deposing a party is considering jurisdictional authority of the court. In particular, while parties to an action are already subject to the court’s jurisdiction and, thus, can inherently already be commanded to appear at a certain time, witnesses that are not parties to the action cannot be. More specifically, because non-party witnesses are not under the court’s jurisdiction, they must be served with a subpoena as provided in C.R.C.P. 45 to command their appearance at a deposition. Of course, if a witness voluntarily agrees to be deposed, there will be no need to subpoena her.
Lastly, out-of-state depositions are governed by C.R.C.P. 28 which requires that notice be given for out-of-state depositions in conformance with the Colorado Rules of Civil Procedure and that the deposition be taken before an officer authorized to swear in a deponent in Colorado or authorized in the state where the deposition is being taken.
Out-of-state depositions of non-party witnesses can be particularly tricky because those types of witnesses are not subject to the jurisdiction of Colorado courts and, accordingly, cannot be commanded to appear in Colorado. Under those circumstances, the jurisdiction of the target witness’s state court system must be employed, typically through the use of “letters rogatory.” Letters rogatory are essentially a request from one state court to another requesting assistance in the administration of justice. Once the jurisdiction of the target witness’s state courts are invoked, the witness can be commanded to appear for a deposition in that state through a subpoena .
© 2016 J.D. Porter, LLC; Jordan Porter. Denver, Colorado.