The Colorado Supreme Court’s recent holding in DCP Midstream, LLP v. Anadarko Petroleum Corp. – that trial courts must actively manage discovery in their cases — may be a harbinger of the new normal in discovery practice.  The opinion is the latest example of the inexorable shift away from the liberal, all-you-can-eat discovery mindset back to the more proportional, take-only-what-you-need practice that most of us have forgotten, or never experienced.

At first glance, the facts of the case seem pretty commonplace. The plaintiff requested mountains of documents; the defendant refused on relevance grounds; and the plaintiff moved to compel production.  The trial court granted the motion, wholesale, on an expansive reading of relevance.  As the trial court explained: “The rule on discovery up here is: turn it over.”

Not necessarily, said the Colorado Supreme Court.  In a deliberate study of both the Colorado rules and the federal rules they mirror, the court held that trial judges must resolve discovery disputes the hard way — by rolling up their sleeves, determining the appropriate scope of discovery in each case, and applying a number of cost-benefit and proportionality factors.

Colorado is certainly not alone, and the logic the Colorado Supreme Court used is equally applicable to the substantially similar Rule 26 counterparts of both the Federal and the North Carolina Rules of Civil Procedure.  The court noted:

The overriding purpose of the Colorado Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action.” . . . Delay also increases costs.  The increased costs associated with protracted litigation may force a party into an unwarranted settlement or may deter a party from bringing a viable claim.  Active judicial management is necessary to address these problems, and our rules have evolved to stress this principle.

Could DCP be evidence of a discovery renaissance which reshapes litigation as we know it? It’s too soon to tell, and there are many in the legal industry with much to lose if a more rational approach to discovery is mandated.  For now, we know only that the proportionality analysis is explicitly required in Colorado; it’s surfacing in other states including North Carolina (for a great example, see Analog Devices); and it may soon be enshrined in the Federal Rules of Civil Procedure. 

As we reported in May, Rule 26(b) of the Federal Rules of Civil Procedure, which for decades has broadly allowed discovery of “any nonprivileged matter that is relevant [and] appears reasonably calculated to lead to the discovery of admissible evidence,” is currently on the examining table.  A committee of the Judicial Conference has proposed replacing the familiar standard with the following language:

any nonprivileged matter that is relevant . . . and proportional to the needs of the caseconsidering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

The proposed changes to the Federal Rules are still a long way from implementation, assuming they survive the upcoming public comment period and deliberations.  But the pendulum appears to be swinging.  We will watch this trend and report as other jurisdictions follow Colorado’s lead.