Colorado Litigation Report

Take a look at the Colorado Litigation Report, a site with very useful, short summaries of Colorado appellate opinions (best of all, published on a very regular basis, unlike this blog of late...  but soon to change).

The Oil Drum

Sadly, one of my favorite websites (and a website where I was previously a contributing author), www.theoildrum.com, is shutting down (actually converting to an archive, there will just be no new content).  There are a variety of reasons for this, but in my opinion it doesn't reflect that energy has become any less central to questions about our civilization or its future.

A few articles I wrote for TOD in the past that are still worth considering (perhaps more so now than ever):

Oil Demand Destruction & Brittle Systems

Geopolitical Feedback Loops in Peak Oil

The Renewables Gap

Predator-Prey Dynamics in Demand Destruction and Oil Prices

Some weekend reading...

Preserving ESI on Twitter

Once litigation is “reasonably anticipated,” parties have an obligation to preserve all potentially relevant material.  That obligation extends to information reasonably under a party’s control, even if it is not actually in its possession.  This raises significant concerns when it comes to information on social media sites such as Facebook and Twitter—the information may well be relevant, should likely be preserved, but is it in the reasonable control of the party?  Some recent changes with Twitter reveal that the answer is yes—it is reasonably under the control of the party, and must be preserved.  Fortunately, Twitter also now provides an easy-to-use tool to preserve this information.

During one of Twitter’s quarterly “Hack Weeks”, employees engineered Twitter archiving, which allows users to access Tweets from their Twitter account past. On December 19, Twitter launched this new feature to a small group of users who have their account language setting on English.  It’s not yet clear whether this archiving feature will include “Direct Messages,” so attorneys should ensure that any such information is either captured or separately preserved.  It will be rolling out to all other users over the coming weeks and months, according to Mollie Vandor, part of Twitter’s User Services Engineering Team. 

Archiving allows users to access and download Tweets from the beginning of their account, including retweets.  After they have their account set up to access the archives, they can view Tweets by month, or search their archive based on certain words, phrases, hashtags, or @usernames, according to Vandor’s blog.

You might be wondering how you can access the archiving feature on your Twitter account.  After logging into your account, go to Settings, scroll down to the bottom, then check for the feature, which will allow you to access your Twitter archive.  Click on the button, and you will receive email instructions on how to access your archive once it is ready to download.

Some thoughts and potential best practices for attorneys:

-       -  Include Twitter usage in initial interviews with clients regarding ESI

-       -  Ensure clients are directed not to delete or modify their Twitter accounts in a litigation hold letter until such time as the account can be fully preserved

-      -   It’s not yet clear whether the archiving feature will include Direct Messages or lists of accounts followed by a specific user, so extra care should be taken to ensure this information is separately preserved if applicable

Obtaining Documents (Including ESI) Through a Subpoena Duces Tecum

In Colorado, can you obtain documents from an individual or company by serving a subpoena duces tecum without taking a records deposition?  The answer used to be no, according to a June 18th, 2012 ruling of the Colorado Supreme Court.  See In re Marriage of Wiggins, 279 P.3d 1 (Colo. 2012).

However, the Colorado Supreme Court has approved a change to C.R.C.P. 45 (see text of new Rule 45 here), which will take effect January 1, 2013.  The new Rule 45 will allow parties to compel by subpoena (1) appearance at a deposition, (2) production of records or other items, or (3) both.  Accordingly, the plain text of Rule 45 now permits a subpoena for records alone, without simultaneously noticing a records deposition.  This change will greatly streamline the non-party discovery process in Colorado state courts.

Perhaps just as importantly, the new Rule 45 expressly permits subpoenas of records "in physical or electronic form." In contrast, the old Rule 45 simply permitted a request for production of "books, papers, documents, or tangible things designated therein."  While a subpoena for ESI was arguably still permissible under the old rule, it was likely to result in an objection and a fight.  The new rule plainly supports a subpoena for emails, digital images, word processing files, spreadsheets, etc. in their native format, as well as text messages, voicemail messages, etc.

E-Discovery White Paper

Our new E-Discovery white paper is available now:  E-Discovery White Paper

Entitled "Avoiding E-Discovery Nightmares:  Simple Steps for Small Businesses," this paper discusses key steps small businesses should consider to prepare for the eventuality of electronic discovery in litigation.

Colorado State E-Discovery Law

In 2009, the Colorado Supreme Court rules committee rejected incorporating either the Federal or proposed Uniform E-Discovery Rules into the Colorado Rules.  See http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Committees/Civil_Rules_Committee/CivilRulesMeetMinutes1302009.pdf at page 3 (discussing the E-discovery Subcommittee’s report on the Uniform State Laws E-Discovery Rules Proposal.  The subcommittee reported that Colorado’s rules are not easily compatible with either Federal or the proposed uniform e-discovery rules; that C.R.E. 1001 already defines writings to include ESI, and that the C.R.C.P. already contemplates early intervention by the court in discovery matters tailored to the specific needs of the case.  Ultimately, the subcommittee recommended that the Rules Committee not adopt either the F.R.C.P. or proposed uniform rules on e-discovery). 

Normally, the similarity between Colorado and Federal rules of civil procedure allow case law interpreting federal rules to be cited as persuasive authority in Colorado state court cases.  See, e.g., Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002) ("When a Colorado rule is similar to a Federal Rule, [the court] may look to federal authority for guidance in construing the Colorado Rule").  The Supreme Court Rules Committee's decision, however, distances Colorado state court discovery jurisprudence from case law interpreting the federal rules regarding e-discovery, and makes a review and analysis of Colorado state court case law on e-discovery issues all the more relevant. 

Assuming, for the moment, that Colorado courts will not be easily persuaded by citations to federal e-discovery case law following this Rules Committee decision, what is the current state of Colorado state court e-discovery law?  Unfortunately, the answer is “very limited.”  For example, only three Colorado state court cases contains the phrase “Electronically Stored Information,” and none contain the phrase “e-discovery” or "ediscovery."  See Wiggins v. Wiggins, 279 P.3d 1 (Colo. 2012) (quoting C.R.C.P. 45 as permitting subpoenas to request ESI); People v. Buckner, 228 P.3d 245 (Colo. App. 2009) (interpreting C.R.E. 801); Tax Data Corp. v. Hutt, 826 P.2d 353 (Colo. App. 1991) (public records access includes access to ESI).  Further, these cases provide no real guidance to e-discovery rules or limits in Colorado.

There are, however, a few cases that provide useful guidance to E-Discovery practice in Colorado state courts:

One case contains the phrase “Native Format” – People v. Preston, 276 P.3d 78, 85 (Colo. 2011).  That case states that “[w]hether or not Respondent believed he was adhering to normal procedures, his conduct had the effect of ‘promot[ing] principles of gamesmanship’ and ‘hid[ing] the ball,’ and his lack of diligence in responding to Rice’s requests was tantamount to obstructing the discovery process.  Likewise, that discoverable information relevant to Hoch’s claims was stored electronically, be it in ‘native format,’ Windows, or scanned PDF files, cannot justify departure from Respondent’s obligations as an attorney; Respondent had a duty to disclose and produce “any data compilations from which information can be obtained [and] transferred, if necessary, . . . through detection devices into reasonably useable form.”

Another case provides some guidance in requesting inspection of a computer by computer forensics experts.  In Cantrell v. Cameron, 195 P.3d 659 (Colo. 2008), the Colorado Supreme Court considered a challenge to the trial court’s order compelling production of Defendant’s laptop for inspection.  The Supreme Court vacated the order and remanded for a hearing to assess the scope of inspection required to determine first if the laptop was in use during the accident.  Here, the substantive information on the laptop was not relevant to the claims.  Rather the relevant question was whether the laptop was in use by the driver at the time of the car accident.  The Court, concerned about the invasion of Defendant’s privacy, held that the three-part test from Martinelli v. District Court, 612 P.2d 1083, 1091 (Colo. 1980), was the appropriate test in these circumstances, and that the trial court failed to apply this test.  The Court reasoned that there may be less-intrusive options available to determine whether the laptop was in use at the time of the accident, relying on alternative recommendations of a computer forensics expert, the order compelling production was vacated and the issue remanded for the trial court to balance these issues properly under Martinelli.  Generally, however, Cantrell supports the notion that a party may request inspection of a computer by its computer forensics expert.

In Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200 (Colo. App. 1998), the court affirmed an order imposing sanctions and granting adverse inference instructions at trial due to failure to produce computers for inspection and subsequent spoliation when the party then disposed of the computers in question.  While the case is short on broadly applicable tests or principles to govern e-discovery disputes, it does approve spoliation sanctions where computer hardware—here only relevant because it contained ESI—was not produced and later destroyed despite requests in discovery to inspect these computers.

Colorado courts' guidance on the discoverability of social media is similarly sparse:  no case mentions the phrase “Twitter,” and only one uses the phrase “Facebook,” though not in an e-discovery context.  See People ex rel. R.D., 259 P.3d 562 (Colo. App. 2011).  The situation with respect to discovery of text messages is no better, with several cases discussing text messages in a criminal context, but no discussion in the context of the acceptable scope or procedure for their discovery.

Perhaps most importantly, the text of C.R.C.P. 34 and C.R.E. 1001 leave the door wide open to requesting production of ESI if carefully and creatively applied:

For example, C.R.C.P. 34(a)(1) allows for production and inspection of “data compilations from which information can be obtained.”  As suggested in Preston, above, this likely includes electronically stored, native format files because these are ultimately nothing more than “data compilations from which information can be obtained.”  This phrase should permit requests for production of native format files, email and attachments in native file format (e.g. .PST files), as well as the production and inspection of file structures, databases, electronic accounting files, etc. 

C.R.C.P. 34(a)(1) also covers documents that are under a party’s control, though not in its actual possession, and which are obtainable upon its order or direction.  See Michael v. John Hancock Mut. Life Ins. Co., 334 P.2d 1090 (1959).  This provision should extend the reach of Rule 34 to cover cloud-based and hosted “data compilations” such as Google docs, email hosted by third-party providers, information in Facebook and Twitter accounts, cloud-based storage systems such as Dropbox, cloud-based project management systems like Basecamp, etc.  In certain situations, these sources may yield a treasure trove of relevant information.

C.R.C.P. 34(a)(1) also allows for the requesting party to “inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of C.R.C.P. 26(b).”  This should permit actual inspection and copying of computers, hard drives, or specific folders within computers and hard drives if copying the entire device would be overly broad or unduly burdensome.  Additionally, this should permit extracting data from cell phones (text messages, call records, voicemails, photos).  Many attorneys consider E-mail to be especially valuable in discovery because it often provides candid communications between parties.  This characteristic is equally, or even more true of text messages, Tweets, or Facebook posts, especially among a younger generation where it may be common to send dozens of such messages in a day with little thought as to editing, consequences, or discoverability.

Finally, Colorado's Civil Access Pilot Project implemented in business cases in some Colorado districts provides additional rules that impact e-discovery, including Rules 1.3 (proportionality in discovery of ESI), 6.1 (preservation of ESI), 6.2 (cost of preservation borne by producing party), and Appendix B (Case Management Order format requires parties to discuss their strategy re: ESI).  However, as the rules have been in effect less than a year, no appellate orders currently exist discussing the scope or providing guidance in interpreting these ESI-related rules.  Arguably these rules are mere formalization of good case management practices already in effect, and may support arguments outside the CAPP system about the proper manner for management of e-discovery.

The Law Office of Jeff Vail focuses on providing innovative and cost-effective business litigation solutions to Colorado small and medium-sized businesses.  If you have a business dispute, or if you need advice or guidance in E-Discovery matters in Colorado courts, visit our website to learn more about our services.

Affirmative Defenses (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended to assist in identifying appropriate affirmative or additional defenses for inclusion in an answer. To my knowledge, this is the most complete list of affirmative defenses available, currently consisting of 149 separate affirmative defenses.  This list is updated continuously, but certainly isn't complete--if you have a suggested addition, please contact me or comment below.
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C.R.C.P. 8(c) requires a party to "set forth affirmatively . . . [any] matter constituting an avoidance or affirmative defense."
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Checklist & Best Practices to Consider:
- Consider each of the below affirmative defenses--does it potentially apply in your case?  Rule 8(c) requires that both defenses to liability and defenses that potentially mitigate damages must be set forth in the pleadings.  Indus. Comm'n v. Ewing, 418 P.2d 296 (Colo. 1966).
- If a defense is not raised by the pleadings, it may still be tried by the express or implied consent of the parties.  See C.R.C.P. 15(b); Great Am. Ins. Co. v. Ferndale Dev. Co., 523 P.2d 979 (Colo. 1974).  However, it is error for a trial court to consider a defense first presented at trial if it is objected to.  Maxey v. Jefferson County Sch. Dist. No. R-1, 408 P.2d 970 (Colo. 1965).  Accordingly, while pleadings may be amended to add additional affirmative defenses, it is essential that all defenses to be raised at trial are pleaded before trial, and that any attempt to raise defenses not pleaded is objected to.
- Note that, unlike affirmative defenses where the defendant bears the burden of proving the defense, some of the following are more properly styled "additional defenses" where the plaintiff bears the burden of proving that the defense does not apply (e.g. service of process).
- While the vast majority of these defenses will not apply in any given case, review of the complete list may be an especially helpful tool in brainstorming at the outset of a case.
***DO NOT PLEAD A LAUNDRY LIST.  As stated above, the vast majority of these affirmative defenses will not apply to any given case--they are intended as a brainstorming tool, and certainly should not be included in full.  Rule 11 requires that you have a good faith basis for believing an affirmative defense actually applies before pleading it, and in discovery you will likely need to respond to an interrogatory identifying all factual bases for every affirmative defense you plead.
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List of Affirmative Defenses (Partial):
- failure to state a claim upon which relief may be granted (almost always use)
- statutory defenses prerequisites (these will vary depending on the claims)
- preemption by federal or other law
- accord and satisfaction
- arbitration and award
- assumption of risk
- economic loss rule
- contributory or comparative negligence
- intervening cause
- supervening cause
- claimants own conduct, or by the conduct of its agents, representatives, and consultants
- discharge in bankruptcy
- duress
- estoppel
- recoupment
- cardinal change
- set off
- failure of consideration
- fraud (generally, as an equitable defense, as opposed to fraud in the inducement, below)
- fraud in the inducement
- illegality
- injury by fellow servant
- borrowed servant
- laches
- license
- payment
- release
- res judicata
- statute of frauds
- statute of limitations
- waiver
- unclean hands
- no adequate remedy at law
- failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
- rejection of goods
- revocation of acceptance of goods
- conditions precedent
- discharge
- failing to plead fraud with particularity
- no reliance
- attorneys’ fees award not permissible
- punitive damages not permissible
- lack of standing
- sole negligence of co-defendant
- offset
- collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
- improper service
- failure to serve
- indemnity
- lack of consent
- mistake
- undue influence
- unconscionability
- adhesion
- contrary to public policy
- restraint of trade
- novation
- ratification
- alteration of product
- misuse of product
- charitable immunity
- misnomer of parties
- failure to exhaust administrative remedies
- frustration of purpose
- impossibility
- preemption
- prior pending action
- improper venue
- failure to join an indispensable party
- no private right of action
- justification
- necessity
- execution of public duty
- breach by plaintiff
- failure of condition precedent
- anticipatory repudiation
- improper notice of breach
- breach of express warranty
- breach of implied warranty
- parol evidence rule
- unjust enrichment
- prevention of performance
- lack of privity
- merger doctrine
- learned intermediary or sophisticated user doctrine
- adequate warning
- no evidence that modified warning would have been followed or would have prevented injury
- manufacturing/labeling/marketing in conformity with the state of the art at the time
- release
- res judicata
- assumption of the risk
- product was unavoidably unsafe
- product provides net benefits for a class of patients
- spoliation
- damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant's conduct
- lack of causal relationship
- act of god (or peril of the sea in admiralty cases)
- force majeure
- usury
- failure to act in a commercially reasonable manner
- acquiescence
- doctrine of primary or exclusive jurisdiction
- exemption
- failure to preserve confidentiality (in a privacy action)
- filed rate doctrine
- good faith
- prior pending action
- sovereign immunity
- truth (in defamation actions)
- suicide (in accident or some benefits actions)
- adverse possession (in trespass action)
- mutual acquiescence in boundary (in trespass action)
- statutory immunity (under applicable state or federal law)
- unconstitutional (relating to statute allegedly violated)
- insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
- self-defense (in assault, battery, trespass actions)
- permission/invitation (in assault, battery, trespass actions)
- agency
- Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
- at-will employment
- breach of contract
- hindrance of contract
- cancellation of contract/resignation
- circuitry of action
- discharge (other than bankruptcy)
- election of parties
- election of remedies
- joint venture
- lack of authority
- mutual mistake
- no government action
- privilege
- reasonable accommodation
- retraction
- safety of employee (ADA)
- statutory compliance
- no damages (where required element of pleading)
- termination of employement
- undue burden (ADA)
- wrong party

- implied repeal of statute (see In re: Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d. Cir. 2003) (hat tip Bill Shea)

- failure to take advantage of effective system to report/stop harassment (in Title VII actions, called the Faragher-Ellerth defense) (see Jones v. D.C. Dept. of Corrections, 429 F.3d 276 (D.C. Cir. 2005) (hat tip Bill Shea)
- fair use (copyright).  See, e.g., Campbel, aka Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).  (hat tip Bill Shea)

- Noerr-Pennington defense (antitrust) (a Sherman Act defendant can raise the affirmative defense of right to petition for redress, even if they use that right to try to gain an anti-competitive advantage).  See Noerr-Pennington Doctrine (2009), ABA Section of Antitrust Law, at p.107.  (hat tip Bill Shea)
- Same decision defense (employer would still have fired employee for lawful reasons even if the actual firing was for a mix of lawful and unlawful reasons) (Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)) (hat tip Bill Shea)
- ignorance of the law.  Ignorance of the law is rarely a defense to liability, but if proven, ignorance that racial discrimination violates federal law may be a defense to punitive damages in Title VII cases.  See, e.g. Alexander v. Riga, 208 F.3d 419, 432 (3d Cir. 2000) (hat tip Bill Shea)
- business judgment rule (hat tip Iain Johnston)
- claim of right (defense to element of intent required to prove theft)
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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.