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TCL > August 2003 Issue > Concerning Pleadings and Motions and Disclosure and Discovery: Proposed Amendment to C.R.C.P. 8(A), 10(D)(E), 16(A); Proposed New C.R.C.P. 16.1; Proposed Repeal of C.R.C.P. 26.3

The Colorado Lawyer
August 2003
Vol. 32, No. 8 [Page  107]

© 2003 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Concerning Pleadings and Motions and Disclosure and Discovery: Proposed Amendment to C.R.C.P. 8(A), 10(D)(E), 16(A); Proposed New C.R.C.P. 16.1; Proposed Repeal of C.R.C.P. 26.3

Colorado Supreme Court Rules Committee

Notice of Public Hearing
Hearing to be Held Thursday, September 11, 2003, at 2:30 p.m.

Colorado Rules of Civil Procedure
Amendment to C.R.C.P. 8(A), 10(D)(E), 16(A)
Proposed New C.R.C.P. 16.1 and Proposed Repeal of C.R.C.P. 26.3

Proposed Amendments Concerning Pleadings and Motions and Disclosure and Discovery

The Colorado Supreme Court will conduct a hearing on proposed amendments to Colorado Rules of Civil Procedure 8(a), 10(d)(e), 16(a), Proposed New C.R.C.P. 16.1, and Proposed Repeal of C.R.C.P. 26.3 pertaining to Pleadings and Motions and Disclosure and Discovery on Thursday, September 11, 2003, from 2:30 p.m. to 4:30 p.m., in the Colorado Supreme Court Courtroom, Two E. 14th Ave., Denver, Colorado. The Court also requests written public comments by any interested person on these proposed rule changes. An original and eight copies of the written comments concerning the proposals should be submitted to: Mac V. Danford, Clerk of the Supreme Court, Two E. 14th Ave., Denver, Colorado 80203, no later than September 3, 2003, by 5:00 p.m. Persons wishing to participate in the hearing should so notify Mr. Danford no later than September 3, 2003.

By the Court:

Nancy E. Rice
Colorado Supreme Court Justice

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Chapter 2
Pleadings and Motions
Rule 8. General Rules of Pleading

(a) Claims for Relief. A pleading which sets forth a claim for a relief whether an original claim, counterclaim, cross-claim, or a third-party claim, shall contain: (1) If the court is of limited jurisdiction, a short and plain statement of the grounds upon which the court’s jurisdiction depends; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief to which the pleader claims to be entitled. No dollar amount shall be stated in the prayer or demand for relief. Relief in the alternative or of several different types may be demanded. Each claiming party shall designate in its first pleading whether the case is subject to or exempt from Simplified Procedure under C.R.C.P. 16.1 by using the caption form required by C.R.C.P. 10(d)(2)(III).
(b) through (f) No Change.

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Chapter 2
Pleadings and Motions
Rule 10. Form and Quality of Pleadings, Motions, and Other Documents

(a) No Change.
(b) No Change.
(c) No Change.
(d) No Change.
(1) No Change.
(2) No Change.
(I) No Change.
(II) No Change.
(III) Case Caption Information:

On the left side: No Change.

On the right side:
An area for “Court Use Only” that is at least 2½ inches in width and 1¾ inches in length (located opposite the court and party information).
Case number, division number, and courtroom number (located opposite the attorney information above).
Below the division or courtroom number, if the case is not subject to 16.1, in a pleading containing claims against another party, the claiming party shall include an affirmative statement identifying the case as excluded from the requirements of 16.1, as follows: This case is NOT subject to the simplified procedure for court actions under Rule 16.1 because: This is a class action, domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, Rule 120 or other similar expedited proceeding [see C.R.C.P. 16.1(b)(1)]; AND/OR Claims against any party exceed $100,000 [see C.R.C.P. 16.1(b)(2) and (c)].”
(3) Spacing: No Change.
(I) Single Spacing for all: No Change.
(II) Double Spacing for all: No Change.
(4) Signature Block: No Change.
(e) Illustration of Preferred Case Caption Format:
(1) Preferred Caption for documents initiated by a party:

[Designation of Court From subsection (g) below]

 

COURT USE ONLY

Plaintiff(s):

[Substitute appropriate party designations & names]
v.
Defendant(s):

 

Case Number:
Div:               _Ctrm:

Attorney or Party Without Attorney
Name:
Address:

Phone Number:
FAX Number:
E-mail:
Atty. Reg. #:

This case is NOT subject to the simplified procedures for court actions under Rule16.1 because:

This is a class action, domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, Rule 120, or other similar expedited proceeding [see C.R.C.P. 16.1(b)(1)]

and/or

Claims against any party exceed $100,000 [see C.R.C.P. 16.1(b)(2) and (c)]

NAME OF DOCUMENT

(2) No Change.
(f) No Change.
(1) No Change.
(2) No Change.
(g) No Change.
(h) No Change.
(i) No Change.

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Chapter 2

Pleadings and Motions
Rule 16. Case Management and Trial Management

(a) Purpose and Scope. The purpose of this Rule 16 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. This Rule shall govern case management in all district court civil cases except as provided herein. This Rule shall not apply to domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, C.R.C.P. 120, and other similar expedited proceedings, unless otherwise ordered by the court or stipulated by the parties. This Rule 16 also shall not apply to civil actions that are governed by Simplified Procedure under C.R.C.P. 16.1, except as specifically provided in Rule 16.1. The disclosures and information required to be included in both the Case Management and Trial Management Orders interrelate to discovery authorized by these rules. The right of discovery shall not constitute grounds for failing to timely disclose information required by this Rule, nor shall this Rule constitute a ground for failing to timely disclose any information sought pursuant to discovery.
(b) through (g) No Change.

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Chapter 2
Pleadings and Motions

Rule 16.1. Simplified Procedure for Civil Actions to be adopted as follows:
(a) Purpose and Summary of Simplified Procedure.

(1) Purpose of Simplified Procedure. The purpose of this rule is to provide maximum access to the district courts in civil actions; to enhance the provision of just, speedy, and inexpensive determination of civil actions; to provide the earliest practical trials; and to limit discovery and its attendant expense.
(2) Summary of Simplified Procedure. Under this Rule, Simplified Procedure generally applies to all civil actions, whether for monetary damages or any other form of relief unless expressly excluded by this Rule or the pleadings, or unless a party timely and properly elects to be excluded from its provisions. This Rule normally limits the maximum allowable monetary judgment to $100,000 against any one party. This Rule requires early, full disclosure of persons, documents, damages, insurance and experts, and early, detailed disclosure of witnesses’ testimony, whose direct trial testimony is then generally limited to that which has been disclosed. Normally, no depositions, interrogatories, document requests or requests for admission are allowed, although examination under C.R.C.P. 35 is permitted.
(b) Actions Subject to Simplified Procedure. This Rule applies to all civil actions other than:

(1) -civil actions that are class actions, domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, C.R.C.P. 120, and other similar expedited proceedings, unless otherwise stipulated by the parties; or
(2) -civil actions in which any party seeks a monetary judgment from any other party of more than $100,000, exclusive of interest and costs.

(c) Limitations on Damages. In cases subject to this Rule, a claimant’s right to a monetary judgment against any one party shall be limited to a maximum of $100,000, including any attorney fees, penalties or punitive damages, but excluding interest and costs. The $100,000 limitation shall not restrict an award of non-monetary relief. The jury shall not be informed of the $100,000 limitation. If the jury returns a verdict for damages in excess of $100,000, the trial court shall reduce the verdict to $100,000.
(d) Election for Exclusion from This Rule. This Rule shall apply unless, no later than 35 days after the case is at issue as defined in C.R.C.P. 16(b)(1), any party files a written statement in a pleading or otherwise, signed by the party and its counsel, if any, stating that the option and potential benefit of this Rule have been discussed and that the party believes that application of Simplified Procedure would not further the interests of a just, speedy and inexpensive determination of the action and further reflecting that this belief has been discussed with the other parties or their counsel. In the event any party elects to be excluded from the application of Simplified Procedure, C.R.C.P. 16 shall govern the action.
(e) Election for Inclusion Under This Rule. In actions excluded by subsection (b)(2) of this Rule, within 45 days after the case is at issue, as defined in C.R.C.P. 16(b)(1), the parties may file a stipulation to be governed by this Rule. In such event, they will not be bound by the $100,000 limitation on judgments contained in section (c) of this Rule.
(f) Case Management Orders. In actions subject to Simplified Procedure pursuant to this Rule, the presumptive case management order requirements of C.R.C.P. 16(b)(1), (2), (3), (5) and (6) shall apply.
(g) Trial Setting. No later than 40 days after the case is at issue, the responsible attorney shall set the case for trial pursuant to C.R.C.P. 121, section 1-6, unless otherwise ordered by the court.
(h) Certificate of Compliance. No later than 45 days after the case is at issue, the responsible attorney shall also file a Certificate of Compliance stating that the parties have complied with all the requirements of sections (f) and (g) of this Rule or, if they have not complied with each requirement, shall identify the requirements which have not been fulfilled and set forth any reasons for the failure to comply.
(i) Expedited Trials. Trial settings, motions and trials in actions subject to Simplified Procedure under this Rule should be given early trial settings, hearings on motions and trials.
(j) Case Management Conference. If any party believes that it would be helpful to conduct a case management conference, a notice to set case management conference shall be filed stating the reasons why such a conference is requested. If any party is unrepresented or if the court determines that such a conference should be held, the court shall set a case management conference. The conference may be conducted by telephone.
(k) Simplified Procedure. Simplified Procedure means that the action shall not be subject to C.R.C.P. 16, 26-34 and 36, unless otherwise specifically provided in this Rule, and shall be subject to the following requirements:
(1) Required Disclosures.
(A) Disclosures in All Cases. Each party shall make disclosures pursuant to C.R.C.P. 26(a)(1), 26(a)(4), 26(a)(6), 26(c), 26(e) and 26(g), no later than 30 days after the case is at issue as defined in C.R.C.P. 16(b)(1). In addition to the requirements of C.R.C.P. 26(g), the disclosing party shall sign all disclosures under oath.
(B) Additional Disclosures in Certain Actions. Even if not otherwise required under subsection (A), matters to be disclosed pursuant to this Rule shall also include, but are not limited to, the following:
(i) Personal Injury Actions. In actions claiming damages for personal or emotional injuries, the claimant shall disclose the names and addresses of all doctors, hospitals, clinics, pharmacies and other health care providers utilized by the claimant within five years prior to the date of disclosure, and shall produce all records from those providers or written waivers allowing the opposing party to obtain those records subject to appropriate protective provisions authorized by C.R.C.P. 26(c). The claimant shall also produce transcripts or tapes of recorded statements, documents, photographs, and video and other recorded images that address the facts of the case or the injuries sustained. The defending party shall disclose transcripts or tapes of recorded statements, any insurance company claims memos or documents, photographs, and video and other recorded images that address the facts of the case, the injuries sustained, or affirmative defenses. A party need not produce those specific records for which the party, after consultation pursuant to C.R.C.P. 26(c), timely moves for a protective order from the court;
(ii) Employment Actions. In actions seeking damages for loss of employment, the claimant shall disclose the names and addresses of all persons by whom the claimant has been employed for the ten years prior to the date of disclosure and shall produce all documents which reflect or reference claimant’s efforts to find employment since the claimant’s departure from the defending party, and written waivers allowing the opposing party to obtain the claimant’s personnel files and payment histories from each employer, except with respect to those records for which the claimant, after consultation pursuant to C.R.C.P. 26(c), timely moves for a protective order from the court. The defending party shall produce the claimant’s personnel file and applicable personnel policies and employee handbooks;
(iii) Requested Disclosures. Before or after the initial disclosures, any party may make a written designation of specific information and documentation that party believes should be disclosed pursuant to C.R.C.P. 26(a)(1). The other party shall provide a response and any agreed upon disclosures within 20 days of the request or at the time of initial disclosures, whichever is later. If any party believes the responses or disclosures are inadequate, it may seek relief pursuant to C.R.C.P. 37.
(C) Document Disclosure. Documents and other evidentiary materials disclosed pursuant to C.R.C.P. 26(a)(1) and 16.1(d)(1)(B) shall be made immediately available for inspection and copying to the extent not privileged or protected from disclosure.
(2) Disclosure of Expert Witnesses. The provisions of C.R.C.P. 26(a)(2)(A) and (B), 26(a)(4), 26(a)(6), 26(c), 26(e) and 26(g) shall apply to disclosure for expert witnesses. Written disclosures of experts shall be served by parties asserting claims 90 days before trial; by parties defending against claims 60 days before trial; and parties asserting claims shall serve written disclosures for any rebuttal experts 35 days before trial.
(3) Disclosure of Non-expert Trial Testimony. Each party shall serve written disclosure statements identifying the name, address, telephone number, and a detailed statement of the expected testimony for each witness the party intends to call at trial whose deposition has not been taken, and for whom expert reports pursuant to subparagraph (l)(2) of this Rule have not been provided. For adverse party or hostile witnesses, written disclosure of the expected subject matters of the witness’s testimony, rather than a detailed statement of the expected testimony, shall be sufficient. Written disclosure shall be served by parties asserting claims 90 days before trial; by parties defending against claims 60 days before trial; and parties asserting claims shall serve written disclosures for any rebuttal witnesses 35 days before trial.
(4) Depositions of Witnesses in Lieu of Trial Testimony. A party who intends to offer the testimony of an expert or other witness may, pursuant to C.R.C.P. 30(b)(1)-(4), take the deposition of that witness for the purpose of preserving the witness’ testimony for use at trial. Such a deposition shall be taken at least 5 days before trial. In that event, any party may offer admissible portions of the witness’ deposition, including any cross-examination during the deposition, without a showing of the witness’ unavailability. Any witness who has been so deposed may not be offered as a witness to present live testimony at trial by the party taking the deposition.
(5) Depositions for Obtaining Documents. Depositions also may be taken for the sole purpose of obtaining and authenticating documents from a non-party.
(6) Trial Exhibits. All exhibits to be used at trial which are in the possession, custody or control of the parties shall be identified and exchanged by the parties at least 30 days before trial. Authenticity of all identified and exchanged exhibits shall be deemed admitted unless objected to in writing within 10 days after receipt of the exhibits. Documents in the possession, custody and control of third persons that have not been obtained by the identifying party pursuant to document deposition or otherwise, to the extent possible shall be identified 30 days before trial and objections to the authenticity of those documents may be made at any time prior to their admission into evidence.
(7) Limitations on Witnesses and Exhibits at Trial. In addition to the sanctions under C.R.C.P. 37(c), witnesses and expert witnesses whose depositions have not been taken shall be limited to testifying on direct examination about matters disclosed in reasonable detail in the written disclosures, provided, however, that adverse parties and hostile witnesses shall be limited to testifying on direct examination to the subject matters disclosed pursuant to subparagraph (l)(3) of this Rule. However, a party may call witnesses for whom written disclosures were not previously made for the purpose of authenticating exhibits if the opposing party made a timely objection to the authenticity of such exhibits.
(8) Juror Notebooks and Jury Instructions. Counsel for each party shall confer about items to be included in juror notebooks as set forth in C.R.C.P. 47(t). At the beginning of trial or at such other date set by the court, the parties shall make a joint submission to the court of items to be included in the juror notebook. Jury instructions and verdict forms shall be prepared pursuant to C.R.C.P. 16(g).
(9) Voluntary Discovery. In addition to the disclosures required by this Rule, voluntary discovery may be conducted as agreed to by all the parties. However, the scheduling of such voluntary discovery may not serve as the basis for a continuance of the trial, and the costs of such discovery shall not be deemed to be actual costs recoverable at the conclusion of the action. Disputes relating to such agreed discovery may not be the subject of motions to the court. If a voluntary deposition is taken, such deposition shall not preclude the calling of the deponent as a witness at trial.
(m) Changed Circumstances. In a case governed by this Rule, any time prior to trial, upon a specific showing of substantially changed circumstances sufficient to render the application of Simplified Procedure under this Rule unfair and a showing of good cause for the timing of the motion to terminate, the court shall terminate application of this Rule and enter such orders as are appropriate under the circumstances.

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Chapter 4
Disclosure and Discovery

Rule 26.3. Limited Monetary Claim Actions. (REPEALED)

© 2003 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2003.


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