Certain discovery rulings, i.e., orders excluding expert witness testimony, waiving a privilege, or sanctioning a party, can effectively end litigation. But unlike most other litigation-ending decisions—which are reviewed de novo by the appellate court right after the decision drops—discovery disputes are the trial court’s bailiwick; they may not be ripe for normal appellate procedures for years. And for both practical and legal reasons, the decisions are rarely overturned on appeal after a trial.
It is important, then, for a litigator who anticipates an outcome-determinative discovery issue to be familiar with Colorado’s interlocutory appellate procedures in advance. That understanding—including appreciating the likelihood of obtaining relief through an appeal—can help the litigator evaluate a discovery dispute.
Colorado Appellate Rule 21 offers the proper vehicle for appealing a discovery order. That Rule provides the court with “original jurisdiction” to review “extraordinary” matters where “no other adequate remedy, including relief available by appeal . . . is available.” C.A.R. 21(a).
Certain discovery orders can qualify as “extraordinary” matters unsuited for normal appellate procedures. In fact, the Colorado Supreme Court has explained that it is not “reluctant to exercise  original jurisdiction when an order, otherwise interlocutory in character, will place a party at a significant disadvantage in litigating the merits of the controversy.” Sanchez v. District Court, 624 P.2d 1314, 1316-17 (Colo. 1981); see Warden v. Exempla, Inc., 2012 CO 74, ¶ 16 (granting C.A.R. 21 relief and opining that “the trial court’s erroneous discovery sanctions significantly hinder the [plaintiff’s] ability to prove the merits of their negligence claim”).
In fact, the bulk of the Colorado Supreme Court’s C.A.R. 21 opinions in the last seven years address discovery issues. See, e.g.,DeSantis v. Simon, 209 P.3d 1069, 1072 (Colo. 2009) (addressing the confidentiality of medical professional review records);Compton v. Safeway, Inc., 169 P.3d 135, 136-37 (Colo. 2007) (analyzing attorney-client privilege issue); Ortega v. Colo. Permanente Med. Grp., P.C.,265 P.3d 444, 445 (Colo. 2011) (“When a trial court’s order involves records which a party claims are protected by a statutory privilege, as here, an immediate review is appropriate because the damage that could result from disclosure would occur regardless of the ultimate outcome of an appeal from a final judgment.”); Judd v. Cedar St. Venture, 256 P.3d 687, 688 (Colo. 2011) (addressing discovery of private information, including compensation); Cantrell v. Cameron, 195 P.3d 659, 660 (Colo. 2008) (holding that a trial court’s order to produce a personal laptop was too broad); Stone v. State Farm Mut. Auto. Ins., 185 P.3d 150, 152, 161 (Colo. 2008) (holding that the trial court abused its discretion in authorizing the release of plaintiff’s tax returns).
Nonetheless, review is discretionary and not granted often. C.A.R. 21(a). Analyzing the Rule and the case law interpreting it reveals that a petitioner can take certain steps to increase the probability her case gets reviewed. C.A.R. 21(a). A petitioner seeking relief from the Court should make it as easy as possible on the Court. To start, a successful petition will rigorously comply with the procedural and technical requirements detailed in C.A.R. 21. See, e.g., C.A.R. 21(e)(1) (specifying that the caption of a petition will “be titled, ‘In Re [Caption of Underlying Proceeding]”). A petitioner who ignores these ministerial requirements burdens her petition with self-inflicted wounds that are insuperable. The Colorado Supreme Court is unlikely to exercise its limited discretionary authority on an appeal that fails to meet C.A.R. 21’s technical requirements, no matter how compelling the underlying merits.
Assuming meticulous compliance with C.A.R. 21’s requirements, a petitioner can further increase her chances that the Colorado Supreme Court reviews an errant discovery order by:
- Framing the issue as a discrete, stand-alone legal issue: Though the underlying discovery dispute probably impacts the core of the litigation, the Colorado Supreme Court is more likely to hear a petition about a discrete legal issue. The distinction often turns on how a petitioner frames the issue and thus a petitioner disputing an important discovery issue should keep the legal issue discrete and (to the extent possible) decoupled from other substantive issues more easily reviewed through normal appellate channels.
- Identifying the relief sought in the first paragraph: A petitioner should boil the issue down to its core and state it plainly in the first sentence or two. A petition that meanders between the discrete legal issue and other complaints with the case is less likely to grab the court’s attention.
- Keeping the facts short and salient: Along the same lines as the first-sentence advice, a petitioner should not spill ink discussing facts outside the discovery dispute, including the merits of the case more generally.
- Constructing the appendix to include all relevant documents: A clean, easily understood appendix should be tailored to the petition and include all necessary documents to support the petitioner’s discrete legal argument concerning the trial court’s error.
- Explaining the issue’s public importance: If the issue in a petition is currently percolating in several other trial courts, the petitioner should raise that issue and support it with documents in the appendix. If, on the other hand, the issue is novel but appellate guidance is critical to avoid an irreversible error at odds with Colorado public policy (e.g., the waiver of a privilege) the petitioner should say so.
The likelihood of relief through C.A.R. 21 is low. (The Court’s own statistics suggests it grants approximately 4% of the roughly 300 petitions filed each year). But a petitioner who is familiar with the procedures and tenor of C.A.R. 21 appeals is better situated to consider that option and, if necessary, seek relief.