C.R.C.P. 33

History

Source: (a) to (c) amended and adopted and (e) added and adopted April 14, 1994, effective January 1, 1995, for all cases filed on or after that date; committee comment approved June 10, 1994; (b)(3) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b); (b)(1) and comments amended and adopted May 28, 2015, effective July 1, 2015, for cases filed on or after July 1, 2015; (b)(1), (e), and comments amended and adopted January 12, 2017, effective March 1, 2017. Cross references: For protective orders concerning discovery, see C.R.C.P. 26(c); for answer to a motion for order compelling discovery, see C.R.C.P. 37(a); for sanctions for failure of party to serve answers to interrogatories, see C.R.C.P. 37(b)(2) and (d). COMMENTS [1] Revised C.R.C.P. 33 now interrelates with the differential case management features of C.R.C.P. 16 and C.R.C.P. 26. Because of mandatory disclosure, substantially less discov- ery is needed. [2] A discovery schedule for the case is required by C.R.C.P. 16(b)(1)(IV). Under the requirements of that Rule, the parties must set forth in the Case Management Order the timing and number of interrogatories and the basis for the necessity of such discovery with attention to the presumptive limitation and standards set forth in C.R.C.P. 26(b)(2). There is also the requirement that counsel certify they have ad- vised their clients of the estimated expenses and fees involved in the discovery. Discovery is thus tailored to the particular case. The parties in the first instance and ultimately the Court are responsible for setting reasonable limits and preventing abuse. [1] Pattern interrogatories [Form 20, pursu- ant to C.R.C.P. 33(e)] have been modified to more appropriately conform to the 2015 amend- ments to C.R.C.P. 16, 26, and 33. A change to or deletion of a pre-2017 pattern interrogatory should not be construed as making that former interrogatory improper, but instead, only that the particular interrogatory is, as of the effective date of the 2017 rule change, modified as stated or no longer a ‘‘pattern interrogatory.’’ [2] The change to C.R.C.P. 33(e) is made to conform to the holding of Leaffer v. Zarlengo, 44 P.3d 1072 (Colo. 2002). ANNOTATION I. General Consideration. II. Availability and Procedure. III. Scope and Use. IV. Option to Produce Business Records. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Use of Summary Judgments and the Discovery Procedure’’, see 24 Dicta 193 (1947). For article, ‘‘Notes on Proposed Amendments to Colorado Rules of Civil Procedure’’, see 27 Dicta 165 (1950). For article, ‘‘Amendments to the Colorado Rules of Civil Procedure’’, see 28 Dicta 242 (1951). For article, ‘‘Depositions and Discovery, Rules 26 to 37’’, see 28 Dicta 375 (1951). For article, ‘‘Depositions and Discovery: Rules 26-37’’, see 23 Rocky Mt. L. Rev. 562 (1951). For article, ‘‘Plaintiff’s Advantageous Use of Discovery, Pre-Trial and Summary Judgment’’, see 40 Den. L. Ctr. J. 192 (1963). C.R.C.P. 26 to 37 must be construed to- gether along with the requirement that plaintiff establish a prima facie case for punitive dam- ages, as a condition precedent to the plaintiff’s right to discovery of defendant’s financial infor- mation. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Civil discovery rules inapplicable to re- lease hearings. Based on §§ 16-8-115 to 16-8- 117 and on the special nonadversary nature of a release inquiry, the participants in release pro- ceedings do not have the broad right of discov- ery as provided in the rules of civil procedure. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). Under C.R.C.P. 81(a), the procedure in re- lease hearings under § 16-8-115 is so inconsis- tent and in conflict with the rules of civil pro- cedure as to make civil discovery rules inapplicable to release hearings. People v. Dis- trict Court, 192 Colo. 225, 557 P.2d 414 (1976). Applied in Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Hawkins v. District Court, 638 P.2d 1372 (Colo. 1982). II. A V AILABILITY AND PROCEDURE. If interrogatories, otherwise objectionable, are made material to the issues involved by virtue of stipulation, then the petitioner is en- titled to answers to them. Mote v. Koch, 173 Colo. 82, 476 P.2d 255 (1970). Refusal to answer valid interrogatories is grounds for reversal. Where the information sought by interrogatories is subject to discovery under C.R.C.P. 26(b) and 33, the refusal to supply the information requested is in itself a ground for reversal. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). Refusal to supply names of witnesses in- tended to be called is ground for reversal. Where Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). Where the primary cause for defendants’ failure to answer interrogatories was the in- excusable neglect of defendants’ attorney in whom they had placed their confidence, the trial court abused its discretion in refusing to set aside a default judgment for failure of the de- fendants to answer interrogatories, particularly since setting aside the default judgment and ordering a trial on the merits would not unwarrantedly prejudice the plaintiff. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967). Where interrogatories which are not an- swered involve matters entirely foreign to the issues involved, any error, therefore, cannot be prejudicial. Mote v. Koch, 173 Colo. 82, 476 P.2d 255 (1970). Interrogatories may be served on govern- mental official of another state though they cannot be compelled to appear in Colorado for taking depositions. Minnesota ex rel. Min- nesota Att’y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). Existence of triable issue on punitive dam- ages may be established through discovery, by evidentiary means, or by an offer of proof. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Extent of discovery of defendant’s finan- cial condition is not unlimited. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Scope of discovery of defendant’s financial worth for punitive damages case should in- clude only material evidence and should be framed in simple manner. The permissible scope of discovery of defendant’s financial worth where a prima facie case for punitive damages has been made should include only material evidence of the defendant’s financial worth, and should be framed in such a manner that the questions proposed are not unduly bur- densome. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Plaintiff has burden of establishing prima facie right to punitive damages. When puni- tive damages are in issue and information is sought by the plaintiff relating to the defen- dant’s financial condition, justice requires no less than the imposition on the plaintiff of the burden of establishing a prima facie right to punitive damages. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Specific requests may constitute unneces- sary harassment. Specific questions requesting detailed information regarding the defendant’s financial status may constitute unnecessary ha- rassment. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Burden is cast upon party who seeks pro- tective order to show annoyance, embarrass- ment or oppression. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Applied in Godfrit v. Judd, 116 Colo. 489, 182 P.2d 907 (1947). III. SCOPE AND USE. Law reviews. For comment on Ridley v. Y oung appearing below, see 25 Rocky Mt. L. Rev. 392 (1953). Annotator’s note. Where reference is made in the annotations to the Rules of Civil Proce- dure, citation and language have been changed where needed to comport with the nomenclature and wording of the 1970 revision of the rules in any still-relevant case decided previous thereto. Only discrete subparts of non-pattern in- terrogatories, and not those subparts logically or factually subsumed within and necessarily related to the primary question, must be counted toward the interrogatory number limit set forth in the case management order. Leaffer v. Zarlengo, 44 P.3d 1072 (Colo. 2002). Supreme court adopts test set forth in Kendall v. GES Exposition Servs., Inc., 174 F.R.D. 684 (D. Nev. 1997), to aid courts in distinguishing between discrete subparts of non-pattern interrogatories and those that are logically or factually subsumed within and nec- essarily related to the primary question. Leaffer v. Zarlengo, 44 P.3d 1072 (Colo. 2002). Answers made by a party to interrogato- ries submitted by his adversary are not evi- dence until introduced as such during the course of trial. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). When answers to interrogatories are intro- duced in evidence, they stand on the same plane as other evidence. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). Answers to interrogatories may be treated as admissions against interest. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). An answer filed by a party to an interroga- tory has the same effect as a judicial admis- sion made in a pleading or in open court, for it relieves the opposing party of the necessity of proving the fact admitted. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). An answer to an interrogatory treated as an admission is not conclusive and will not prevail over evidence offered at the trial. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). Answers to the interrogatories are not ‘‘ju- dicial admissions’’ which are conclusive. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). Furnishing false answers to interrogatories may constitute first-degree perjury. People v. Chaussee, 847 P.2d 156 (Colo. App. 1992), aff’d in part and rev’d in part on other grounds, 880 P.2d 749 (Colo. 1994). Court need not reject testimony of wit- nesses which contradicts answers. Where a defendant answers interrogatories under this rule, making admissions therein against his own interest, and thereafter does not appear upon the trial, with plaintiff offering the answers to the interrogatories in evidence, the trial court need not reject the evidence of witnesses, who are called by counsel appearing for defendant, if the testimony of such witnesses contradicts the statements of defendant as contained in the an- swers to the interrogatories. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). Rebuttal of evidence is applicable to inter- rogatories. The language of this rule by which it is provided: ‘‘Interrogatories may relate to any matters which can be inquired into under C.R.C.P. 26(b), and the answers may be used to the extent (permitted by the rules of evidence)’’, made the rebuttal of evidence under C.R.C.P. 32(c), applicable to interrogatories. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). Interrogatory answers for discovery should not be irrevocably binding. Answers to interrogatories propounded primarily for the purpose of discovery and to prevent surprise should not be held to be irrevocably binding upon the person making said answers. Ridley v. Y oung, 127 Colo. 46, 253 P.2d 433 (1953). IV. OPTION TO PRODUCE BUSINESS RECORDS. With regard to interrogatories which re- quest information and data obtainable from available documents, the general rule is that a party should not be permitted to compel his opponent to make compilations or perform re- search and investigations with respect to statis- tical information which he might make for him- self by obtaining the production of the books and documents pursuant to C.R.C.P. 34(a) or by doing a little footwork, as the case may be. V al Vu, Inc. v. Lacey, 31 Colo. App. 55, 497 P.2d 723 (1972). Where one furnishes certain business re- cords and furnishes other documents as they become available by use of C.R.C.P. 34(a), there is no prejudice resulting from the trial court’s discretionary ruling that interrogatories are of an oppressive nature. V al Vu, Inc. v. Lacey, 31 Colo. App. 55, 497 P.2d 723 (1972).