Colorado Supreme Court refuses to authorize Lone Pine orders in fracking cases

On Monday, April 20th, 2015, the Colorado Supreme Court issued its opinion in Antero Resources v. Strudley, a case closely watched by many in the oil and gas industry. The Supreme Court was confronted with the issue of whether the Colorado Rules of Civil Procedure permit a trial court to issue a Lone Pine order—that is, a modified case management order requiring a plaintiff to submit prima facie evidence in support of the lawsuit before permitting full discovery. Lone Pine orders are used primarily in complex cases to ferret out meritless claims and ensure that litigation progresses expeditiously.

Strudley involved tort claims asserted by the Strudley family against Antero Resources and others involved in drilling operations near the plaintiffs’ home. After the parties exchanged their initial disclosures, the defendants requested that the trial court issue a modified case management order stating that the plaintiffs must provide prima facie evidence supporting their claims before full discovery would be allowed. The plaintiffs argued that they were entitled to discovery before the court ruled on the merits of their claims. The trial court agreed with the defendants and issued a Lone Pine order. Because the plaintiff produced insufficient information, the court dismissed the plaintiffs’ claims.

The plaintiffs appealed to the Colorado Court of Appeals. The Court of Appeals reversed the trial court, reasoning that Colorado law did not recognize Lone Pine orders. The Court of Appeals concluded that the discretion afforded district courts under Federal Rule of Civil Procedure (FRCP) 16 is greater than the discretion given under Colorado Rule of Civil Procedure (CRCP) 16. Trial courts issuing Lone Pine order generally rely on FRCP 16 as authority for issuing the order. The Court of Appeals also held that Colorado case law disfavored requiring a plaintiff to provide evidence in support of a claim before discovery.

The Colorado Supreme Court affirmed the Court of Appeals, reasoning that Lone Pine orders are prohibited under Colorado law. The Supreme Court agreed with the Court of Appeals that FRCP 16 granted trial courts more discretion than CRCP 16. In fact, the Supreme Court concluded that FRCP 16 explicitly authorized trial courts to issue Lone Pine orders. The Supreme Court noted that although there are similarities between FRCP 16 and CRCP 16, Colorado did not adopt the language in FRCP 16 that empowered district courts to reduce potential burdens on defendants in complex litigation. However, the Supreme Court noted that CRCP 16 permits district courts to manage discovery in a manner that ensures litigation moves expeditiously. In addition, the Supreme Court concluded that based on its review of other jurisdictions, this lawsuit was not the type of complex lawsuit that warrants a Lone Pine order.

Justice Boatright dissented, arguing that the trial court was merely using its discretionary authority under CRCP 16 when it issued the Lone Pine order. Justice Boatright also contended that the precedent the majority relied on was inapposite because those cases dealt with an earlier version of CRCP 16. According to Justice Boatright, the majority opinion will unduly constrain a trial court’s ability to manage its docket.

Read the opinion.

This post was written by Barclay Nicholson ( or 713 651 3662) and Johnjerica Hodge ( or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.