Lone Pine orders have become an increasingly common case management tool employed by trial courts to help streamline proceedings for defendants and the court while maintaining equity for the plaintiffs. Lone Pine orders are most often used in cases involving complex issues and multiple plaintiffs, but are becoming more widely employed in a greater variety of cases. 

In Antero Resources Corp. v. Strudley, the Colorado Supreme Court on April 20, 2015, upheld an appeals court decision that Lone Pine orders “are not permitted as a matter of Colorado Law.” The appeals court reversed the trial court dismissal, which was based on the plaintiffs’ failure to comply with its order to show prima facie evidence in support of the plaintiffs’ allegations. This case has drawn special attention because it involves claims from fracking, but the Court’s ruling extends to any type of claim in Colorado state court in which a defendant seeks to require a plaintiff to produce prima facie evidence of damage and causation before the defendant must respond to detailed discovery on the merits. 

It is notable that Justice Gregory Hobbs, the Court’s resident (and retiring) expert on water and natural resource issues, authored the opinion, and Justice Brian Boatright, an appointee of Democratic Governor John Hickenlooper, was the only Justice dissenting. 

The Court hung its hat on a distinct difference between the Federal Rules of Civil Procedure and the Colorado Rules of Civil Procedure. Specifically, the Court noted that C.R.C.P. 16 does not allow state trial courts the same type of discretion to adopt orders streamlining complex litigation in its early stages as is afforded federal trial courts under the Fed. R. Civ. P. 16. In short, Colorado trial courts are not allowed to issue modified case management orders like Lone Pine orders. 

In its opinion, the Court left little room for doubt whether a state trial court may employ Lone Pine orders, stating that “[a]lthough the comments to C.R.C.P. 16 promote active judicial case management, the rule does not provide a trial court with authority to fashion its own summary judgment-like filter and dismiss claims during the early stages of litigation.” 

It is also important to note that a statutory savior for Lone Pine orders in Colorado is not likely to be in the offing. Any effort by the GOP-controlled Senate to create statutory authority for these types of modified case management orders would, most likely, fall victim to the Democratically-controlled state House of Representatives. 

The Antero Resources decision will be cited by plaintiffs opposing Lone Pine case management orders in other jurisdictions, even though those rules of civil procedure may differ from Colorado’s. Defendants seeking such orders will want to focus on this decision’s specific applicability to and interpretation of the Colorado rules.