Click here for most recent version of this summary Pursuant to Chief Justice Directive 11-02, the Colorado Supreme Court has adopted a pilot project to study whether adopting certain rules regarding the control of the discovery process reduces the expense of civil litigation in certain business actions. The pilot project is scheduled for two years, and shall apply to cases in enumerated districts filed after January 1, 2012 through December 31, 2013 (or until further order of the court). The effect of the pilot will be studied by the Institute for the Advancement of the American Legal System (IAALS) working at the request of the Court. IAALS will issue a report on the effect of the pilot project upon the conclusion of the two year pilot. Key points are briefly summarized below and will be timely incorporated into LawToolBox calculators and deadlines: 1) The Pilot project Rules (PPR) govern all business actions within Appendix A and filed after January 1, 2012, in the following courts: Jefferson, Gilpin (First District) Denver (Second District) Adams (Seventeenth District) Arapahoe (Eighteenth District) 2) The following BUSINESS ACTIONS are INCLUDED in the pilot project: * breach of contract * business torts * UCC * commercial real property * owner/investor derivative * transactions with financial institutions * internal business affairs * insurance coverage * dissolution of corporations, partnerships, LLC & joint ventures * securities fraud and common law fraud * antitrust actions * intellectual property & trademarks * professional malpractice actions NOT including medical negligence * products liability NOTE: In practice, there shouldn’t be much dispute about the scope of this pilot project, because cases will be included or excluded from the pilot project by court order at the outset of a matter. 3) The following actions are specifically EXCLUDED: * collection of rent money * Rule 120 foreclosure proceedings * appointing a receiver * financial institutions collecting debts * employment actions * construction defects * actions subject to governmental immunity * medical negligence actions * actions alleging negligence for physical injuries * replevin * admin agency actions * actions based on a statute or rule that has distinct time frames * satisfaction of judgment 4) CRCP still applies except to the extent there is an inconsistency. PPR 1.2 NOTE: Litigators must analyze the interplay between Rule 16, Rule 16.1 and the Pilot Project. These pilot project rules are scheduled to be incorporated into LawToolBox online rule-based court deadline calculators prior to the effective date. 5) The extent of discovery must be proportional to the needs of the cases given the amount in controversy and the complexity of the case. PPR 1.3 6) Parties must plead and deny matters with a higher degree of specificity, and must include known monetary damages but not punitive damages. PPR 2 NOTE: any claim asking for punitive damages may be subject to a motion to strike or conform to CRS 13-21-102(1.5) (“A claim for exemplary damages in an action governed by this section may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures pursuant to rule 26 of the Colorado rules of civil procedure and the plaintiff establishes prima facie proof of a triable issue.”) 7) Initial disclosures by claimant are due 21 days after service of the complaint, PPR 3.1, and initial disclosures by defendant are due 21 days after an answer (or other responsive pleading) is served, PPR 3.3. NOTE: the deadline scheme to make deadlines a function of 7 days (e.g., 7, 14, 21, etc.) is intended to make deadlines expire on a weekday instead of a weekend. Assuming proposed CRCP changes go into effect simultaneously with the pilot project, court days will be eliminated from deadline calculations and the 3 day mail rule will be eliminated. Therefore deadlines should almost never land on a weekend after January 1, 2012. 8) Failure to make initial disclosures will result in denial of right to use or object to information, dismissal of claims, attorney fees, etc., pursuant to PPR 3.7. 9) Parties may NOT stipulate to the extension of PPR 3 deadlines, and motions for extensions shall usually be denied, pursuant to PPR 3.8. 10) Filing of motion to dismiss shall not eliminate or delay the need to file an answer pursuant to PPR 4.1, and answer is due 21 days after the plaintiff files its PPR 3.1 disclosures pursuant to PPR 3.2. NOTE: Because a motion to dismiss does not stay the proceedings claimants will be less likely to be lulled into the incorrect belief that a certificate of review will not have to be filed when expert testimony is required to establish a professional standard of care against a licensed professional pursuant to CRS 13-20-602. 11) Parties shall meet and confer re disclosures within 14 days after filing an answer pursuant to PPR 6.1. 12) If any parties files a motion to preserve evidence, a response must be filed within 7 days pursuant to PPR 6.1. See, NOTE in paragraph 7 above 13) Pursuant to PPR 7.1, the latest date for the court to hold the initial case management conference shall be 49 days after the answer is filed (this is also the first time parties may object to the adequacy of initial disclosures pursuant to PPR 3.4). 14) At least 7 days before the initial CMC conference the parties shall submit a joint report in the form contained in Appendix B. See, NOTE in paragraph 7 above 15) At the initial CMC, when determining whether to permit discovery and/or MIL, the court chall consider the proportionality factors set forth in PPR 1.3 16) The limits and parameters of the expert discovery set forth at this conference by order shall be rigidly adhered to pursuant to PPR 7.3, PPR 10 and Appendix B (no extension of trial for failure to meet expert deadlines). 17) Each side may only endorse one expert pursuant to PPR 10.2, and “[t]here shall be no depositions or other discovery of experts.” PPR 10.1(d). 18) The court must engage in ongoing case management pursuant to PPR 8. 19) Cases will be assigned to one judge for duration of proceedings 20) There are enhanced penalties for failing to disclose both helpful and harmful info. See, PPR 11. 21) This pilot project is loosely based on a similar procedure adopted in Oregon and which empirically demonstrated that these types of rules could move cases through the system faster while giving parties the sense that they had a fair opportunity to present their case. Consequently, this may be a good jurisdiction to research case law to help interpret any ambiguities or issues that arise. more info. Chief Justice Directive 11-02
Marc C. Patoile, Attorney at Law
Folkestad Fazekas Barrick & Patoile, P.C.
