Evidence

How to tame 'discovery genie'? Trial judges must consider cost-benefit, Colo. supremes say


Trial judges have to take an active role in managing discovery, the Colorado Supreme Court has ruled in a dispute over a request for millions of pages of paper and electronic documents.

The court said in an opinion (PDF) last week that trial judges should consider cost-benefit as well as proportionality when evaluating discovery requests. The Wall Street Journal Law Blog (sub. req.) and Legal Newsline have reports.

“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,” the court said. Ruling in a breach of contract dispute, the court said the Colorado Rules of Civil Procedure require an active court role when a party objects to the scope of discovery.

The decision is a landmark, according to an analysis at the IAALS Online blog by former Colorado Supreme Court Justice Rebecca Love Kourlis, who is now executive director of the University of Denver’s Institute for the Advancement of the American Legal System.

“Across the nation,” Kourlis wrote, courts and litigants “have been struggling with how to put the discovery genie back in the bottle—to assure that parties get the information they reasonably need to litigate their case, but to eliminate the hammer effect of excessive discovery in driving up costs and encouraging one or both parties to throw in the towel on the litigation.”

The decision, she said, has “put the brakes on discovery run amuk.”

Related prior coverage:

ABAJournal.com: “Will federal discovery be streamlined? Proposals would limit depositions, emphasize proportionality”

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