Colo. SC: Trial courts need to be more 'hands-on' in managing discovery

By Jessica M. Karmasek | Jun 26, 2013

DENVER (Legal Newsline) -- The Colorado Supreme Court, in a ruling this week, said state trial courts need to take a more "hands-on" role in managing discovery.

The state's high court said in its opinion, released Monday, that lower courts should consider cost-benefit and proportionality factors in the state's Rules of Civil Procedure to better control excessive discovery.

"The trial court must determine the appropriate scope of discovery in light of the reasonable needs of the case and tailor discovery to those needs," Chief Justice Michael Bender wrote for the court.

In DCP Midstream LLP v. Anadarko Petroleum Corporation, plaintiff DCP sued Anadarko for breach of contract and other claims.

DCP asserted 11 breach of contract claims but stated in its complaint that it anticipated adding more breach of contract claims after conducting discovery.

During discovery, DCP sent Anadarko 58 requests for production seeking millions of pages of paper and electronic documents and many of Anadarko's "title opinions" -- attorney-authored opinions about the state of title to land or mineral interests.

Anadarko refused to produce many of the requested documents. DCP then filed a motion to compel.

In response, Anadarko argued that many of DCP's requests were not relevant to the 11 breach of contract claims pleaded and were thus outside the scope of discovery permitted by the state's Rules of Civil Procedure.

Anadarko also argued that the title opinions were privileged attorney-client communications.

Without holding a hearing, the trial court granted DCP's motion.

The trial court did not address any of Anadarko's objections. It also did not provide any analysis under the the state's Rules of Civil Procedure in support of its conclusions.

However, in a later written order, the court reasoned that DCP was entitled to discovery on any issue that is or may become relevant and ruled that Anadarko's title opinions were not privileged because they were based on public information.

Following the order, Anadarko petitioned the state's high court for relief.

The court, in its 28-page opinion, returned the case to the trial court, directing it to determine the "appropriate scope of discovery."

The court also held that title opinions, like any document sought in discovery, may contain privileged attorney-client communications if the parameters of that doctrine are met.

Click here to read the court's full opinion.

Attorneys for the National Association for Manufacturers and the American Tort Reform Association, both of which filed amicus briefs in the case, called the court's decision a "victory" for efforts to encourage a rule of reasonableness in discovery.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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