Colorado Supreme Court asked to review Appeals Court decision overturning Lone Pine order

On August 29, 2013, the oil and gas company defendants (Antero Resources Corporation, Antero Piceance Corporation, Frontier Drilling LLC, and Calfrac Well Services Corporation) in Strudley v. Antero Resources Corporation, et al, 12CA1251, ___ P.3d ___, 2013 WL 3427901, 2013 COA 106, filed a Petition for Writ of Certiorari with the Colorado Supreme Court requesting review of the Court of Appeals decision which overturned a Lone Pine Order issued by the trial court. See previous blog entitled “Lone Pine order overturned by intermediate Appellate Court in Colorado fracking lawsuit,” dated July 10, 2013. The companies argue that the Court of Appeals decision undermines the trial court’s ability to “take an active role managing discovery” and to streamline discovery as required by the Colorado Rules of Civil Procedure (“CRCP”). The basic tenet of these rules is that litigation be “just, speedy, and inexpensive” (Rule 1).

According to the companies, the Court of Appeals incorrectly interpreted CRCP Rules 1, 16, and 26, which require the trial court to take an active role in managing discovery, allowing for wide discretion to deviate from standard case management orders by showing fact-specific “good cause” and “by customizing discovery based on the unique circumstances and needs of each case, particularly cases involving complex scientific or technical issues.” The companies argue that the Court of Appeals by-passed the deferential standard, instead ruling as a matter of law that the trial court had no discretion “to enter an MCMO [modified case management order, here a Lone Pine Order] requiring toxic tort plaintiffs to come forward with basic evidence of exposure, injury, and causation, even where the plaintiffs failed to proffer that evidence under Rule 26(a)(1)” [requiring parties to make initial mandatory disclosures]. The role of initial disclosures is to streamline costly discovery, but the companies state that this can only be accomplished when all parties make the required information available in the disclosures. The companies complain that the plaintiffs “included no evidence [in their initial disclosures] indicating that [they] had been exposed to or injured by hazardous substances in their air or water attributable to the Companies’ operations.”

Cases cited by the Court of Appeals are discounted by the oil and gas companies as pre-dating the current rules of procedure which require disclosures and active case management to limit unfettered discovery. The companies ask the Colorado Supreme Court to review the appellate decision, stating that
  • The Court of Appeals ruling has “a chilling effect on a Colorado trial court’s efforts to ‘assertively lead the management of cases to ensure that justice is served.’”
  • By barring as a matter of law Lone Pine Orders, the Court of Appeals “undermines the efficacy of Rule 26(a)(1) disclosures and revert[s] to an outdated mode of litigation where evidence is revealed only after lengthy and expensive discovery.”
  • “If allowed to stand, the Court of Appeals’ opinion, which second-guesses a trial court’s first-hand efforts to tailor discovery to the unique needs of a case, will strip trial courts of discretion to use parties’ mandatory disclosures as a basis for determining the proper scope of further discovery.”

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