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.
