Legal update

Wednesday, July 01, 2015 12:29 PM

State Supreme Court is changing discovery rules

by John L. Conklin, Esq, Martin Conklin, P.C.

The Colorado Supreme Court is making changes to the Colorado Rules of Civil Procedure, which apply to all civil cases including medical malpractice cases filed on or after July 1, 2015. The changes are not intended to favor either side, and have been established to streamline the pretrial exchange of information in lawsuits, also known as discovery, to minimize discovery disputes among parties, and more quickly resolve disputes that do arise.

The overarching theme of the rules changes is proportionality. Proportionality will be a key factor in determining the extent of pretrial discovery permitted in a given case, with judges attempting to correlate the discovery costs to the relative value of the case. Defense lawyers hope that application of this concept will prevent plaintiff lawyers from engaging in broad-based “fishing expeditions” during discovery, which often target policies, procedures and guidelines unrelated to the care at issue in the case. To apply proportionality, the attorneys must jointly submit a proposed Case Management Order, or discovery plan, proportional to the value of the case to become an order of the court.

Another change consistent with proportionality is that the submitted discovery plan must list the subjects of expert testimony with a presumptive limit of one expert per side per subject. Many judges have already been limiting the number of experts in civil cases either as part of pretrial case management or at trial as an evidentiary limitation on trial testimony. Medical malpractice cases may have multiple defendant providers who treated the patient at different times, raising the possibility of inconsistent positions. In those situations, sharing the same expert on standard of care or causation may not be feasible. The new rules require the judge to take into account any differing positions or interests among the parties on one side of the case, as well as proportionality, in formulating limits on the number of expert witnesses. The new requirement for early disclosure of categories of expert witness testimony should help prevent surprises.

The widespread use of electronic medical records has led to increasing requests for production of electronic records, logs and files in medical malpractice cases. The new rules require the discovery plan to include a provision for any anticipated electronic discovery. If the plaintiff lawyer intends to seek extensive electronic discovery, the issue can now be addressed with the judge earlier in the case.

Another change to the rules designed to streamline discovery and focus the parties on the issues in dispute is that the scope of information sought will be limited to matters relevant to the specific claims and defenses raised by the parties in the case, rather than the old standard, which permitted discovery on the broader “subject matter” of the case.

For physicians who engage in medical-legal work as retained experts, the new rules require that expert opinions be contained within an expert report signed by the expert, rather than as a summary of opinions prepared by the lawyer. Opinions of treating physicians testifying about their own care of the patient may still be disclosed in a summary prepared by the attorney. Expert depositions will be limited to six hours, unless permission for a longer time is obtained from the judge or agreed to by the attorneys and expert. Finally, drafts and correspondence between attorneys and retained experts will not be discoverable by the opposing side unless the expert relies on facts contained in those materials.

Additional rule changes require the court to take into account proportionality when awarding litigation costs to either side and raise the standard for striking claims or defenses of a party as punishment for a rules violation.