The Colorado Supreme Court has determined that Rule 26 of the Colorado Rules of Civil Procedure (C.R.C.P.) requires “active judicial management to control excessive discovery” and, to resolve a dispute over the proper scope of discovery, “the trial court should, at a minimum, consider the cost-benefit and proportionality factors set forth in C.R.C.P. 26(b)(2)(F).” In re DCP Midstream, LLP v. Anadarko Petroleum Corp., No. 12SA307 (Colo., decided June 24, 2013).
The court concluded that the trial court abused its discretion by not taking an active role managing discovery and returned the case for it to determine “the appropriate scope of discovery in light of the reasonable needs of the case” and “to tailor discovery to those needs.” The issue arose in a contract dispute; one of the parties sought to compel the production of documents, and the trial court granted the motion without holding a hearing, addressing the scope-of-discovery objections or providing any analysis. Later, during a telephone conference, the trial court apparently suggested that the parties confer to narrow the scope of discovery, given the millions of documents involved, and stated that it did not “have the power to make you do that.”