Colorado Motion to Compel

Introduction

Key Things to Know

1. 1

   Colorado writes this as two branches of one rule, divided by what was owed rather than by how inadequate the answer was. C.R.C.P. 37(a)(2)(A) reaches a disclosure that C.R.C.P. 26(a) required without anyone asking for it, and the rule styles that branch as a motion to compel disclosure and for appropriate sanctions in a single breath. C.R.C.P. 37(a)(2)(B) reaches an answer, a designation, or inspection owed in response to discovery you served. The escalation for disobeying an order already entered is C.R.C.P. 37(b), a separate step outside this filing.

2. 2

   Settle the track first. C.R.C.P. 16.1(b) puts Simplified Procedure over every civil action other than class actions, domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, C.R.C.P. 106 and 120 matters, and those where any one party seeks monetary judgment of more than $100,000 exclusive of reasonable allowable attorney fees, interest and costs. It is opt out: 16.1(d) applies it unless a party establishes good cause for exclusion no later than 42 days after the case is at issue. Inside it, 16.1(k)(4) permits five requests for production per party and six combined hours of depositions, while 16.1(k)(1)(A) makes the disclosing party sign all disclosures under oath.

3. 3

   The expenses are discretionary in Colorado, the opposite of the federal rule most states copied. C.R.C.P. 37(a)(4)(A) says that on a grant, or where the disclosure or requested discovery is provided after filing, the court may require the party or deponent whose conduct necessitated the filing, or the party or attorney advising such conduct, or both of them, to pay the reasonable expenses, including attorney fees. Three escapes are written in: that the movant never first tried to obtain the material without court action, that the nondisclosure, response, or objection was substantially justified, or that other circumstances make an award manifestly unjust. Manifestly is a higher bar than the federal rule's bare unjust.

4. 4

   That discretion points back at the movant, on narrower terms. C.R.C.P. 37(a)(4)(B) lets the court require a losing movant, or the attorney who filed, or both, to pay the reasonable expenses of opposing the application, and writes in only two escapes: substantial justification for having made it, or manifestly unjust circumstances. The grant limb carries a third escape the denial limb does not. 37(a)(4)(C) apportions among the parties in a just manner on a split result. The rule's own 1995 Committee Comment records the choice as deliberate: the Colorado provisions make sanctioning discretionary rather than mandatory.

5. 5

   C.R.C.P. 37 carries no number of days for bringing the application, and no waiver for taking too long, so no Colorado date closes the right. The pressure sits elsewhere. C.R.C.P. 16(b)(11) sets a default deadline for completion of all discovery, including discovery responses, of not later than 49 days before the trial date, unless the court orders otherwise, and relief won after that is worth little. The one waiver in Colorado's written discovery rules runs the other way: C.R.C.P. 33(b)(4) deems waived any ground for objection not stated in a timely objection, unless the court excuses the failure for good cause shown.

6. 6

   Count 35 days, not 30. C.R.C.P. 33(b)(3) gives the party served with interrogatories 35 days after service to serve a copy of the answers, and objections if any, and C.R.C.P. 34(b) sets the same 35 days for a written response to a request for production. Both rules then let a shorter or longer time be directed by the court or, absent an order, agreed to in writing by the parties under C.R.C.P. 29, so a written stipulation moves the date with no judicial involvement at all. Look for one before you file. There is a front end too: C.R.C.P. 26(d) bars a party from seeking discovery from any source before service of the Case Management Order.

7. 7

   Colorado keeps the gatekeeping and the mechanics in a separate instrument, C.R.C.P. 121, Local Rules and Statewide Practice Standards. Section 1-12, Matters Related to Discovery, paragraph 5 names Rule 37(a) by number and says that unless otherwise ordered the court will not entertain any such motion unless counsel for the moving party has conferred or made reasonable effort to confer with opposing counsel about the matter in dispute beforehand, with a certificate of compliance filed at the same time. Section 1-15 then supplies the rest: the recitation of legal authority goes inside the application rather than in a separate brief, capped at 15 pages with a 10 page reply; the responding party has 21 days, or 14 days where the filing comes 42 days or less before the trial date; you get 7 days to reply; a missing responsive brief may be treated as a confession; and section 1-15(10) wants a proposed order in editable format.

Colorado Requirements for Motion to Compel

• Which Track the Case Is On, Because It Decides What Exists to Compel

  C.R.C.P. 16.1 Simplified Procedure is the default for a district court civil action, and 16.1(k) provides that cases subject to it shall not be subject to C.R.C.P. 16, 26 to 27, 31, 33 and 36. Rule 33 is interrogatories and Rule 36 is requests for admission, so neither device exists in a Simplified Procedure case. The case is outside it if it falls in one of the categories listed in 16.1(b)(1), if any one party seeks monetary judgment of more than $100,000 exclusive of reasonable allowable attorney fees, interest and costs, or if a party won exclusion for good cause under 16.1(d) no later than 42 days after the case was at issue. Check the Civil Cover Sheet and the Case Management Order before drafting.

• Which Branch of C.R.C.P. 37(a)(2) You Are Under

  Say the letter. C.R.C.P. 37(a)(2)(A) is the motion where a party failed to make a disclosure required by C.R.C.P. 26(a), and the rule lets you move to compel disclosure and for appropriate sanctions. C.R.C.P. 37(a)(2)(B) is the motion where a deponent failed to answer, an entity failed to designate under Rule 30(b)(6) or 31(a), a party failed to answer an interrogatory under Rule 33, or a party failed to respond that inspection would be permitted or failed to permit it under Rule 34. 37(a)(1) sends the application to the court in which the action is pending, whether it is aimed at a party or at a person who is not a party.

• The Thirty Five Day Response Date, and Any Written C.R.C.P. 29 Stipulation

  C.R.C.P. 33(b)(3) gives 35 days after service of interrogatories to serve the answers and any objections, and C.R.C.P. 34(b) gives the same 35 days for a written response to a request for production. Count 35, not 30. Both rules let a shorter or longer time be directed by the court or, absent an order, agreed to in writing by the parties under C.R.C.P. 29, so look for a written stipulation before you file. There is also a front end: under C.R.C.P. 26(d) a party may not seek discovery from any source before service of the Case Management Order, except as authorized by the rules, by order or by agreement.

• What Actually Came Back, Quoted Item by Item

  Set out each interrogatory, request or disclosure obligation and what was served against it. If the response is an answer you say is inadequate, C.R.C.P. 37(a)(3) is the provision to quote, because an evasive or incomplete disclosure, answer, or response is deemed a failure to disclose, answer, or respond. If the response is an objection, note that C.R.C.P. 33(b)(1) requires it to state the grounds with specificity and to state whether any responsive information is being withheld on the basis of that objection, and that C.R.C.P. 33(b)(4) deems waived any ground not stated in a timely objection unless the court excuses the failure for good cause shown.

• The Certificate of Compliance Required by C.R.C.P. 121 Section 1-12(5)

  C.R.C.P. 121 section 1-12(5) requires counsel for the moving party to file a certificate of compliance with that rule at the time the motion under Rule 37(a) is filed, and the same paragraph states the consequence of skipping the step it certifies: unless otherwise ordered, the court will not entertain the motion. Section 1-15(8) imposes a second, broader duty on every motion and binds self represented parties expressly, with carve outs for an incarcerated person and where contact would violate a protection or restraining order.

• The Legal Authority Inside the Motion, and the Proposed Order

  C.R.C.P. 121 section 1-15(1)(a) requires any motion involving a contested issue of law to be supported by a recitation of legal authority incorporated into the motion, which shall not be filed with a separate brief, and limits motions and responsive briefs to 15 pages and replies to 10. Section 1-15(3) provides that if the moving party fails to incorporate the authority the court may deem the motion abandoned and may enter an order denying it. Section 1-15(10) requires each motion to be accompanied by a proposed order submitted in editable format, and says it complies if it states that the requested relief be granted or denied.

• The Expense Request Under C.R.C.P. 37(a)(4)(A), and Your Own Exposure Under (B)

  37(a)(4)(A) provides that if the motion is granted, or if the discovery is provided after the motion was filed, the court may require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay the moving party the reasonable expenses of making it, including attorney fees, unless no good faith effort was made first, the nondisclosure, response or objection was substantially justified, or other circumstances make an award manifestly unjust. The verb is may, so ask for the expenses and do not count on them. 37(a)(4)(B) runs the same discretion at a movant whose motion is denied, with only two escapes, and 37(a)(4)(C) apportions on a split result.

• Whether Your Division Takes Discovery Motions in Writing at All

  C.R.C.P. 16(b)(14), captioned Oral Discovery Motions, requires the proposed Case Management Order to state whether the court does or does not require discovery motions to be presented orally, without written motions or briefs, so read the order in your case before drafting. If a written motion is filed, section 1-15(1)(b) gives the responding party 21 days, or 14 days where the motion is filed 42 days or less before the trial date, section 1-15(1)(c) gives you 7 days to reply, and section 1-15(3) provides that failure to file a responsive brief may be considered a confession of the motion. Section 1-15(4) leaves it to the court whether to set a hearing. Because C.R.C.P. 121 is titled Local Rules and Statewide Practice Standards, a district or division can add requirements of its own.