University of Denver

Proportionality Implemented Statewide in Colorado

Senior Director

As of July 1, 2015, Colorado has adopted new amendments to its rules of civil procedure with the goal of achieving a more accessible and efficient road to justice. The amended rules seek to increase the involvement of judges in pretrial activity, limit discovery to what is needed to prove a case, and increase a judge’s ability to award sanctions for noncompliance with the rules. Significantly, Colorado’s new rules define the scope of discovery as that which is “relevant to the claim or defense of any party and proportional to the needs of the case.” This language mirrors the amendments to the Federal Rules of Civil Procedure expected to go into effect December 1, 2015.

Richard P. Holme, chair of the Improving Access to Justice (IAJ) Subcommittee that developed the rules, writes in a new Colorado Lawyer article that, with the adoption of these amendments,

"Colorado has moved to address the increasingly severe problem of a litigation culture that appears to be driven by and has thrived on frequently excessive demands for information. These demands can add substantial unnecessary expense and foreclose the societal benefits of efficient judicial systems for the peaceful resolution of disputes and wrongdoing. By encouraging  and expediting a new culture focused on the genuine and limited needs of clients and not their (or their lawyers’) desires—a culture trained in and dedicated to the prompt and efficient handling of disputes—it is hoped that civil litigation can indeed incorporate a new paradigm."

The most significant of the new amendments are the changes to Rules 16 and Rule 26. The Rule 16 changes reflect the importance of having a trial judge involved in case management personally and actively from an early stage of a case. Rule 16(b) and (d) have been substantially rewritten, with a citation to IAALS’ Working Smarter, Not Harder: How Excellent Judges Manage Cases in the commentary. As noted above, the amendments to Rule 26 represent the most significant in the series, with the incorporation of proportionality into the scope of discovery. In addition to the rules, the comments are a “must read” for all Colorado attorneys. These changes are significant beyond Colorado as well, as they provide a preview of things.