Here at the Monitor, we keep a close eye on developments relating to the drilling technique known as hydraulic fracturing, or “fracking.” One such development relates to litigation in Colorado and, in particular, the trial court’s use of a “Lone Pine” case management order in Antero Resources v. Strudley. As my colleague, Emily Pincow, reported previously on our blog, Antero Resources asked the trial court to enter a modified case management (“Lone Pine”) order requiring the Strudleys to present prima facie evidence that they suffered injuries attributable to the defendants’ natural gas drilling operations. (While the complaint identified several chemicals that allegedly polluted the plaintiffs’ property, it did not causally connect specific chemicals to actual injuries.) The trial court granted the motion and issued a Lone Pine order directing the plaintiffs to provide prima facie evidence to support their allegations of exposure, injury, and causation prior to the commencement of full discovery. The trial court determined that the Strudleys failed to present sufficient evidence and dismissed their case with prejudice. The court of appeals reversed, concluding that, as a matter of first impression, Lone Pine orders were not permitted as a matter of Colorado law. The Colorado Supreme Court granted certiorari to review the appellate decision and, in a highly anticipated opinion (available here), affirmed the appellate court, holding that “Colorado’s Rules of Civil Procedure do not allow a trial court to issue a modified case management order, such as a Lone Pine order, that requires a plaintiff to present prima facie evidence in support of a claim before a plaintiff can exercise its full rights of discovery under the Colorado Rules.”
The Colorado Supreme Court explained that while “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.” In particular, the Supreme Court noted differences between Federal Rule of Civil Procedure 16 (governing pretrial conferences, scheduling, and case management) and its Colorado counterpart. For example, Colorado did not adopt a counterpart to Federal Rule 16(c), which explicitly grants trial courts substantial discretion to adopt procedures to streamline complex litigation in its early stages, “[a]t any pretrial conference.” In addition, Federal Rule 16(c)(2)(L) authorizes trial courts to “consider and take appropriate action” by “adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.” Federal Rule 16(c)(2)(A) also grants trial courts authority to “formulat[e] and simplify the issues, and eliminat[e] frivolous claims or defenses.” Furthermore, Rule 16(c)(2)(P) authorizes trial courts to “facilitat[e] in other ways the just, speedy, and inexpensive disposition of the action.”
Thus, according to the Colorado Supreme Court, “[t]he language of C.R.C.P. 16 is markedly different from the language of Fed. R. Civ. P. 16. On its face, C.R.C.P. 16 does not contain a grant of authority for complex cases or otherwise afford trial courts the authority to require a plaintiff to make a prima facie showing before the plaintiff fully exercises discovery rights under the Colorado Rules. Instead, C.R.C.P. 16 primarily addresses basic scheduling matters.”
In addition, the Colorado Supreme Court noted that other Colorado rules of civil procedure are adequate to dispose of non-meritorious claims. “For example, C.R.C.P. 11 allows a trial court to sanction attorneys and their clients for filing pleadings that are not ‘well grounded in fact’ or ‘warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law,’ or pleadings that are ‘interposed for any improper purpose.’ C.R.C.P. 12(b)(5) allows a court to dismiss a claim for ‘failure to state a claim upon which relief can be granted.’ C.R.C.P. 56 allows defendants to challenge the sufficiency of a claim before trial through a motion for summary judgment. Additionally, expert disclosures required under Rule 26(a)(2) and all of the discovery-related rules, especially Rules 30, 33, 34, and 36, ensure that the discovery process operates within clearly defined limits. Likewise, Rule 37 allows a trial court to sanction a party for failure to make a disclosure or cooperate in discovery.”
In short, the Court found that “no statute, rule, or past Colorado case recognizes authority for trial courts to enter Lone Pine order.” And while “[t]he Colorado Rules of Civil Procedure grant courts flexibility and discretion to address discovery disputes as they arise[,] … this judicial authority is limited; it does not allow a court to require a plaintiff to establish a prima facie case in the early stages of litigation while simultaneously barring discovery that might expose the very support sought to prove a claim.”
The opinion was not without a dissent, which argued that the majority applied a too literal reading of C.R.C.P. 16. As explained by the dissent, “[a]ctive case management by the judge is essential to running an efficient docket and administering justice. The rules encourage it, and caselaw, at times, demands it. Yet, today the majority taps the brakes on active case management and sends the message that unless the rules specifically authorize a docket management technique, judges lack the authority to use it in handling their cases. In my view, the modified case management order … at issue in this case was expressly authorized by the plain language of Colorado Rule of Civil Procedure 16, which allows trial courts to adjust the timelines for disclosures and discovery. Because Rule 16 allows for these modifications, I do not believe that it is necessary for the rule to expressly state that trial courts have the authority to issue Lone Pine orders. ”
In the dissent’s view, the information required by the Lone Pine order was information that the plaintiffs would ultimately have to produce at trial; the Lone Pine order simply accelerated the timeline for the plaintiffs to disclose such information. Such a modification of the timeline for disclosure was, according to the dissent, authorized by C.R.C.P. 16. “For example, Rule 16(c) states that ‘any of the provisions of section (b) . . . may be modified by the entry of a Modified Case Management Order.’ C.R.C.P. 16(c). And among the modifiable rules in 16(b) are provisions governing disclosures and discovery. Specifically, Rule 16(b)(5) states the presumptive rule that ‘[t]he parties shall disclose expert testimony in accordance with C.R.C.P. 26(a)(2),’ which defines the form, content, and timing of expert testimony disclosures. C.R.C.P. 16(b)(5). Rule 16(c) thus authorizes the trial court, in its discretion, to enter an MCMO that changes the substance of what must be included in expert disclosures and the timing of when they must be provided to the other side. This provides ample justification for the trial court’s requirement that the Strudleys disclose records and expert testimony at an earlier time in the case.”
Furthermore, the dissent noted that the Lone Pine order “required the Strudleys to produce … proof that their own land had been contaminated, that they had been exposed to chemicals, and that these chemicals caused them to suffer injuries. This information was so central to their claims against Antero Resources that the Strudleys should have had it before even filing their case.”
While the Court’s decision was closely watched (with over a dozen amicus briefs filed, including by the Colorado Petroleum Association, the Independent Petroleum Association of America, the American Petroleum Institute, the National Association of Manufacturers, the American Fuel and Petrochemical Manufacturers, the American Chemistry Council, the American Coatings Association, the Metals Service Center Institute, the Colorado Trial Lawyers Association, the Colorado Defense Lawyers Association, the Colorado Civil Justice League, the Denver Metro Chamber of Commerce, the Chamber of Commerce of the United States of America, the Coalition for Litigation Justice, Inc., and the American Tort Reform Association), the impact of this decision may be limited to cases in Colorado state court.
The Colorado Supreme Court’s decision rested primarily on the fact that the State’s rules of civil procedure lacked explicit authorization to issue a Lone Pine case management order. Thus, the impact of this decision beyond Colorado may turn on how similar (or dissimilar) another state’s civil procedure rules on case management is to its federal counterpart and how willing other state’s high courts are to allow their trial courts flexibility in managing their cases.