Recently, the Colorado Supreme Court issued an opinion reaffirming that trial courts need to take an active, hands-on role in managing discovery and should consider cost-benefit and proportionality factors  to control excessive discovery. DCP Midstream, LP v. Anadarko Petroleum Corp., et al., Case No. 12SA307 (Colo. June 24, 2013). Note my colleagues at SHB filed an amicus brief on behalf of NAM in this matter. The decision is a victory for efforts to encourage a rule of reasonableness in discovery.

Plaintiff sued for breach of contract and other claims. During discovery, DCP sent Anadarko fifty-eight requests for production seeking millions of pages of paper and electronic documents and many of Anadarko's "title opinions"— attorney-authored opinions about the state of title to land or mineral interests. Anadarko refused to produce many of the requested documents. DCP then filed a motion to compel. Without holding a hearing, the trial court granted DCP's motion. The trial court did not address any of Anadarko's specific objections, nor did it provide any analysis under C.R.C.P. 26(b) in support of its conclusions. In a later written order, the trial court reasoned that DCP was entitled to discovery on any issue that is or may become relevant and ruled that Anadarko's title opinions were not privileged because they were based on public information.

Appeal ensued. The state Supreme Court noted that this proceeding raised important questions about the scope of discovery and the extent to which trial courts must manage the discovery phase of a case to accomplish the overriding purpose of the civil rules—"the just, speedy, and inexpensive determination of every action." C.R.C.P. 1. The state civil rules, and cases interpreting them, reflect an evolving effort to require active judicial management of pretrial matters to curb discovery abuses, reduce delay, and decrease litigation costs. See C.R.C.P. 16 committee comment ("It is expected that trial judges will assertively lead the management of cases to ensure that justice is served.").

This principle of active judicial management is reflected in the comments to the rules, and throughout the civil rules: e.g., C.R.C.P. 26(b) restricts the scope of discovery available as a matter of right; some material is limited to "good cause;" C.R.C.P. 26(b)(2) imposes limits on the number of depositions, interrogatories, and requests for production, and these limits can also be modified for "good cause."

The rules suggest that if a party objects to discovery because it is not relevant to a claim or defense, then the trial court must become involved. C.R.C.P. 26(b) requires trial courts to take an active role managing discovery when a scope objection is raised. When faced with a scope objection, the trial court must determine the appropriate scope of discovery in light of the reasonable needs of the case and tailor discovery to those needs. Because each case is unique and deserves unique treatment, the reasonable needs of the case will necessarily vary, depending on the subject matter and complexity of the case, the nature of the parties' claims or defenses, and the discovery necessary to resolve the dispute. To tailor discovery to the specific needs of the case, the Court said that the cost-benefit and proportionality factors listed in C.R.C.P. 26(b)(2)(F) will be helpful. These factors require active judicial management to control excessive discovery.

Bottom line, to resolve a dispute regarding the proper scope of discovery in a particular case, 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). When tailoring discovery, the factors relevant to a trial court's decision will vary depending on the circumstances of the case, and trial courts always possess discretion to consider any or all of the factors listed—or any other pertinent factors—as the needs of the case require.

So this one was vacated and remanded to the lower court for reconsideration.