University of Denver

Colorado Adopts 2015 Federal Rule Amendments

In 2015, in anticipation of the end of the Colorado Civil Access Pilot Project (CAPP), a subcommittee of the Colorado Civil Rules Committee, known as the Improving Access to Justice Subcommittee, proposed revisions to the Colorado Rules of Civil Procedure after considering Colorado’s experiences with the CAPP Program. The proposed rule changes to the Colorado Rules of Civil Procedure were adopted by the Colorado Supreme Court on May 28, 2015. The amendments, which became effective July 1, 2015, were substantial and incorporate the best of CAPP, while also incorporating the 2015 amendments to the Federal Rules of Civil Procedure. The changes are focused on improving access to the civil justice system by making pretrial case management more efficient, thereby decreasing cost and delay, without sacrificing justice.

The changes align with the strengths of the CAPP Program, which were discussed in the IAALS report, entitled Momentum for Change: The Impact of the Colorado Civil Access Pilot Project. Central features of the CAPP Program included active judicial management and an initial case management conference to determine a proportionate pretrial process. The amendments included language in Colorado Rule 26(a)(1) making clear that the initial disclosures are required “whether or not supportive of the disclosing party’s claims or defenses.” The amendments also incorporated portions of CAPP’s expert rules, including requiring disclosure of an expert report and limiting direct witness testimony to matters disclosed in detail in the report. The Supreme Court did not adopt changes to Rule 12 that would have provided that filing of a motion under Rule 12(b)(5) or (b)(6) would not affect the obligation to file a timely answer. In crafting the new rules, the Colorado Supreme Court adopted substantial changes to Rules 16 and 26 regarding the scope of discovery. First, Rule 26(b)(1) incorporated the principles of proportionality in discovery, mirroring the 2015 FRCP rule change, by changing the scope of discovery to matters that are “relevant to the claim or defense of any party and proportional to the needs of the case” considering a list of enumerated factors. Revisions to Rule 16 reinforce this change by requiring that the parties meet and confer “in person, by telephone, or video conference” and prepare a proposed case management order in advance of the case management conference. The proposed order must include a brief assessment of each party’s position on “the application of any factors to be considered in determining proportionality.” The proposed order must also address electronically stored information (ESI), requiring the parties to discuss the search terms, production, preservation, restoration, and forms of production of ESI, as well as associated costs.

Rule 1 was also modified to reflect the principle that the rules should be “administered, and employed by the court and the parties,” to achieve the goals of the Rules.

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