PROTOCOLS FOR CASES ASSIGNED TO PUBLIC IMPACT DOCKET
DATE: January 17, 2013
TO: Interested Parties
Public Impact Docket and Procedures—An Overview
The Public Impact Docket (“PID”), formerly known as the Commercial Docket, was instituted on the belief that, in certain civil cases, the interests of the community and the parties could best be served by early and active management by the court. The procedures for the PID have been designed to provide a “critical path” to resolution. The large majority of civil cases are resolved by settlement. Typically, however, as a prerequisite to settlement, certain critical issues must be resolved by the court and certain discovery must be completed. If the most efficient path to resolution of those issues and completion of priority discovery is identified early in the case, the pre-trial procedure in the case can be designed to assist the parties in resolving their disputes with the least practical investment of resources. For cases that cannot be settled, following the critical path to resolution will also assist the parties in preparing for trial as efficiently as possible. The PID was established and is administered based on the belief that following an effective critical path to resolution will result in a significant savings in the party resources and court resources required to resolve a case.
These procedures were designed by a joint bench and bar effort to help the parties and the judge work together to identify and follow the critical path to resolution for each case. The success of these procedures in a given case is dependent on parties devoting meaningful time to evaluating what actually divides them at the outset of the case, discussing the path to resolving their differences candidly with each other and the court, and being proactive and accessible as the case proceeds.
I. Case Initiation and Assignment
A. Scope of PID: The PID is established as a subset of the existing Civil Docket to address disputes that require expeditious handling or extra judicial resources in order to avoid negative impacts on the community, the named parties, or the administration of justice. The PID is intended to include cases that meet this standard. Generally, cases appropriate for the PID fall within one of the following three categories:
1. Cases involving requests for equitable relief affecting members of the community other than the named parties—for example, the employees, customers or creditors of a business incapacitated by a corporate control dispute for which injunctive relief is sought or third party tenants of a building for which a receiver is sought.
2. Cases in which the continued existence of the dispute obstructs or negatively impacts members of the community other than the direct parties to the dispute—for example, the third party suppliers to or future tenants of a construction project disrupted by a dispute between the owner and the project contractors.
3. Cases involving unusually complex commercial or discovery issues that require active early court management to help identify and resolve one or more critical issues at the outset of the case and thereby reduce the overall private and judicial resources devoted to the litigation.
B. There are generally two methods for assigning a particular case to the PID. First, any party designate a acase for PID by including a paragraph in their initial pleading expressly stating their belief that the case falls within the purview of the PID’s purposes coupled with their desire to have the case heard on the PID. Second, a judge assigned to a non PID case may refer the case to the PID if that judge concludes the case meets one or more of the purposes which the PID was designed to serve.
C. Upon assignment to the PID, the judge handling the case will issue a notice to the parties that have appeared, with direction that they serve the notice on parties entering in the future, advising of the procedures required of cases on the PID. Click on the following link userfiles/file/4th%20Judicial/PID%20Assignment%20Notice%20form.doc to view sample.
D. Upon assignment to the PID, the judge handling the case will review the statement of qualifications for inclusion in the PID as quickly as possible.
1. The judge is encouraged to enter an order confirming or rejecting the assignment of the case to the PID. The judge should strive to have such order issued well in advance of the Initial Case Management Conference.
2. However, a case designated for handling as part of the PID remains assigned to the PID absent affirmative action by the Court.
3. Parties will not await a confirming order before moving forward with the case.
II. Early Case Management
A. Initial Case Management Conference
1. The Court assigned to hear a PID case shall set an early case management conference.
a) An early case management conference will be held to set the course for the case as well as identify and address case management issues as early as reasonably possible.
b) Plaintiff will set a case management conference at the outset of each case assigned to the PID. Any party or the Court may set the conference if Plaintiff fails to do so timely.
2. The Initial Case Management Conference will be set to occur by the later of the following:
a) Thirty days after the first appearance by any defendant; or
b) Thirty days after the filing of the first pleading designating the case for inclusion in the PID.
3. The parties (through counsel) are required to meet and confer no later than 2 days prior to the Initial Casement Management Conference and review the topics discussed in these practice standards.
a) The parties are NOT required to file any reports or proposed order prior to the Case Management Conference. The parties may do so if they believe the filing would be helpful to the Court and the parties at the conference.
4. At the Initial Case Management Conference, the parties present will review with the Court the following:
a) The anticipated path and timing for getting the case “as issue” under C.R.C.P. 16(b)(1).
b) The nature of the anticipated substantive and procedural issues in the case as well as the best path for presenting the issues for resolution. The success of the PID is directly related to the willingness of the parties to have an early and candid discussion of the likely issues in the case.
c) The need or value of an accelerated pre-trial schedule.
d) Possible procedural and substantive motions. The Court will assist the parties in identifying potential motions with the highest likelihood of aiding in an efficient resolution of the parties’ disputes.
e) The parties will explore the potential for bifurcation of issues to the extent it would serve efficiency.
f) The status and plan for making Rule 26 disclosures, including the anticipated scope of those disclosures.
g) The anticipated plan for discovery, including evaluation of informal discovery arrangements, expedited discovery topics, focused discovery, or other options for pursuing the most efficient path to resolution.
h) The contemplated fields of expert testimony and the number of anticipated expert witnesses, expert discovery issues and the potential for an early exchange of expert materials.
i) The Court will review with the parties the Court’s discovery dispute resolution procedures.
j) The Court will review with the parties the Court’s motion procedures.
k) The parties’ plans for ADR. This discussion is to determine the most efficient path to a productive ADR session and will address:
(1) What the parties need to know before ADR can be effective.
(2) What discovery or other litigation issues must be completed before ADR can be effective.
(3) The viability of early ADR.
(4) The potential for binding ADR of all or a portion of the matters in dispute.
l) The potential use of a special master for discovery or substantive issues.
m) The setting of a trial date or establishing a deadline for setting a trial date.
n) Set a case management plan, to include:
(1) A Mid-Case Management Conference.
(2) Any other status conferences deemed valuable, specifically taking into account the stage of development of the case (e.g, whether all parties were active in the case at the time of the Initial Case Management Conference) and the level of progress made during the Initial Case Management Conference.
(a) If the case needs to develop further in order to establish a meaningful case management plan, a case management conference should be set near the “at issue” date.
(3) Any status reporting requirements deemed valuable.
o) Any other procedures the Court or the parties believe would be helpful in expediting a resolution of the parties’ disputes.
B. Mid-Case Management Conference (e.g., 6 months into case or 50% to 75% through the discovery schedule).
1. At the Initial Case Management Conference, the Court and the parties will consider setting a Mid-Case Management Conference. The purpose of the Mid-Case Management Conference is to evaluate progress and keep the case on track for trial date
2. At the Mid-Case Management Conference, the Court and the parties will review the following:
a) The nature of the issues dividing the parties (whether they be substantive, procedural, or non-legal) and the best path toward resolution of these issues.
b) Possible procedural and substantive motions. The Court will assist the parties in identifying potential motions with the highest likelihood of aiding in an efficient resolution of the parties’ disputes.
c) Any of the issues identified to be addressed in the Initial Case Management Conference that could be addressed productively.
C. Status Conferences/Reports
1. At every case management conference, the Court and the parties shall address whether additional status conferences should be set.
2. Absent a contrary order by the Court in an individual case, the parties shall file a joint status report every -63 days after the date of the Initial Case Management Conference. Plaintiff is responsible for filing the status reports. Status reports shall address the following:
a) Any issues needing the Court’s attention.
b) The status of any motions or anticipated motions.
c) The parties’ general progress to date toward resolution of the parties’ disputes and anticipated path of progress.
(1) This section should address anticipated case milestones to be accomplished before the next status report
(2) It should also address whether anticipated milestones were accomplished in the past and, if not, why not as well as the steps that need to be taken to stay on schedule for trial.
d) The status of efforts to reach a negotiated resolution of some or all of the parties’ disputes.
e) Any actions that need to be taken to keep the case on schedule for trial.
D. All Conferences or Court Appearances
1. At all case management conferences, trial counsel with full authority to decide issues in the case will be present.
2. Client representatives are always welcome to attend any conferences, and are particularly encouraged to attend when counsel believe their presence would facilitate progress in the case.
3. At all court appearances and settings, attending counsel shall have full calendaring authority and should expect future court dates and schedules to be set during the appearance/setting. Dates set during court appearances are set based on the circumstances of the case and the resources of the court and will not be continued absent genuine good cause.
4. Following all case management court appearances, the Court shall prepare or direct the preparation of an order summarizing the results of the appearance.
III. Motions Practice
A. Discovery Motions
1. Discovery disputes and the attendant motions practice can be a source of significant delay and dissipation of party resources. The PID will, therefore, strive to resolve discovery disputes as efficiently and quickly as possible and with as little motions practice as possible.
2. To the extent possible, the judge presiding over a case will review and resolve discovery disputes arising in that case.
3. The judges assigned to the PID will make themselves available to the extent possible to resolve discovery disputes on an expedited basis through court appearances in person or by telephone.
4. Parties are required to telephone the Division handling a case before filing a written discovery motion.
a) No written discovery motion shall be filed before the movant has telephoned the division handling the case and the matter is evaluated for the most expeditious procedure for resolution.
b) If the movant is unable to make contact with the Division Clerk within one business day to set a court appearance or is otherwise authorized by the court personnel, the movant may file a written discovery motion.
B. Substantive Motions
1. Rule 56 Motions
a) Summary Judgment Procedure
(1) Parties are encouraged to evaluate carefully Colorado’s standards for summary judgment and refrain from filing a motion for summary judgment except when genuine disputes of material fact do not actually exist.
(2) Each motion for summary judgment shall contain a separate section entitled “Statement of Undisputed Material Facts.” In this section, the movant shall set forth in simple, declarative sentences, separately numbered and paragraphed, each material fact which the movant believes is not in dispute and which support’s the movant’s claim that movant is entitled to judgment as a matter of law.
(3) Each fact must be accompanied by a specific reference to a source in the record which establishes the fact. General references to pleadings, depositions, or documents are insufficient if the document is over one page in length. A ‘specific reference’ means:
(a) In the case of a source filed with the court, the title of the document, the date on which it was filed or served, and a specific paragraph or page and line number; or, if the document is attached to the motion, the paragraph or page and line number;
(b) In the case of interrogatories or requests for admission (the pertinent parts of which must be filed with the motion), the number of the interrogatory or request;
(c) In the case of depositions or other documents bearing line numbers, the specific page and line(s) establishing the fact;
(d) In the case of affidavits submitted in support of the motion, the specific paragraph number establishing the fact;
(e) In the case of other sources not numbered by paragraph, line or page, a reference which will enable the court to ascertain the fact without reviewing the entire document.
(4) Only if the nature of the material fact does not permit a specific reference (e.g., “The contract contains no provision for termination.”), is a general reference sufficient.
(5) Any party opposing the motion for summary judgment shall include a section entitled “Response to Statement of Undisputed Material Facts.” In this section, the party opposing shall admit or deny the asserted material facts set forth by the movant. The admission or denial shall be made in separate paragraphs numbered to correspond to the movant’s paragraph numbering. Any denial shall be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to a source in the record supporting the denial.
(6) If the party opposing the motion believes that there exist additional disputed questions of fact which s/he has not adequately addressed in the submission made under the preceding paragraph, the party shall, in a separate section of the party’s brief styled “Statement of Additional Disputed Facts,” set forth in simple, declarative sentences, separately numbered and paragraphed, each additional, material disputed fact which undercuts movant’s claim that s/he is entitled to judgment as a matter of law. Each separately numbered and paragraphed fact shall be accompanied by a specific reference to a source in the record which establishes the fact or at least demonstrates that it is disputed.
(7) If the movant files a reply brief and wishes to address whether facts are disputed, the movant will include in the reply brief a section entitled “Reply Concerning Undisputed Facts” and/or “Response Concerning Disputed Facts” (depending on whether the movant is addressing the original assertions of undisputed fact or the opponent’s listed of additional disputed facts). This section will be in the same format as described in the preceding paragraphs.
(8) The sole purpose of these procedures is to establish facts and determine which of them are in dispute. Legal argument is not permitted here and should be reserved for separate portions of the briefs. If a party believes that an established fact is immaterial, for example, the fact should be admitted and that belief addressed in the part of the brief devoted to legal arguments. If, on the other hand, a party believes that the reference to a source in the record does not support the claimed fact, that factual argument may be made appropriately under these procedures.
(9) Failure to follow these procedures may result in an order striking or denying the motion or brief, and a corrected brief may have to be re-submitted.
b) Rule 56(h) Motions
(1) Rule 56(h) provides as follows:
At any time after the last required pleading, with or without supporting affidavits, a party may move for determination of a question of law. If there is no genuine issue of any material fact necessary for determination of the question of law, the court may enter an order deciding the question.
(2) Most cases assigned to the Commercial Docket only require the Court to resolve one or a handful of discreet issues to permit the parties to solve their disputes. Parties are encouraged to use legitimate motions under Rule 56(h) to resolve these narrowly defined and significant issues that divide the parties.
(3) The Court and the parties will discuss the potential for useful Rule 56(h) motions at court appearances.
C. Motions Procedure
1. Parties are reminded to comply with C.R.C.P. 121, 1-15(8) regarding the duty to confer. If reasonable efforts to confer have not been made, the parties should expect the court to take action to enforce the requirement.
2. The judges assigned to the PID will endeavor to decide all motions within 30 days of the motion becoming ripe.
3. Request for Ruling:
a) In the event a motion has been fully ripe for decision for 30 days and no decision has been issued, the movant should file a pleading entitled “Request for Ruling.” The Request for Ruling shall list for each motion the following:
(1) The title of the motion and the party filing it;
(2) The filing date and title of each brief filed on the motion to facilitate the Court’s easy retrieval of the briefing material.
b) Any party may file a Request for Ruling.
c) Any party may also contact the Division Clerk by telephone to advise of the filing of a Request for Ruling.
4. Moving parties shall file a proposed order granting the relief requested with all motions. Upon request, the moving party shall e-mail a Word copy of the proposed order to the Division Clerk and affirmatively confirm receipt of the file by the Division Clerk.
A. Each division assigned to the PID shall post its setting policies and dates on the PID’s website, which can be found at www.gofourth.org.
B. Trial Settings for the PID shall be handled at a Case Management Conference or by the following “live” setting process:
1. Each division assigned to the PID will set a regular time for “live” trial settings.
2. A party noticing a “live” setting shall file a pleading labeled “Notice of Live Setting” at least one week before the setting date and will also telephone the Division Clerk to give the Clerk prior notice of the live setting.
3. The setting will be conducted in person or via telephone conference. The party conducting the setting is responsible for arranging the setting telephone conference.
4. Each counsel will arrange to attend or have a representative with full calendaring authority attend the setting telephone conference.
5. Counsel should consult with parties whose calendars are relevant to settings prior to the setting telephone conference
6. Dates will be set before the conclusion of the setting telephone conference. If the parties are unable to agree upon a date, the Division Clerk will have the authority to select a date.
7. The judges assigned to the PID will strive to honor all dates set in this process. The judges will coordinate their schedules to honor these dates and, when necessary, will resort to use of a substitute judge to maintain set dates.
8. Dates set by this process will not be continued absent extraordinary circumstances.
V. Trial Procedures
A. Each division assigned to the Public Impact Docket shall develop standard procedures for trial.
B. Each PID division shall post its procedures and its standard trial schedule on the PID website, which can be found at www.gofourth.org.
VI. Other PID Procedures/Policies
1. Dates set through the PID procedures are set based on the circumstances of the case and will not be continued absent genuine good cause.
2. Deadlines, hearing dates and trial dates remain in place until re-set by order of the Court.
3. Parties should not assume that stipulated motions to continue dates will be granted.
4. The Court will accommodate limited unopposed extensions of time when the extension will not impact the overall progress of the case to resolution.
5. The extension of a deadline is not considered good cause to vacate a trial or hearing date.
B. Parties are encouraged to use technology for courtroom presentations.
C. The PID judges will work with the Clerk of Court to make docket information available to the public on-line when feasible.
D. One purpose of the PID is to promote uniformity and predictability of decision. To serve this goal, the PID judges shall:
1. Permit citation to prior decisions of the PID as informative precedent. A party citing a prior PID decision shall provide to the judge a copy of the order being cited.
2. Work with the Clerk of Court to make orders issued by the PID available for parties wishing to research them when technologically and financially feasible. Parties should note that File & Serve has crude and limited search capabilities to locate orders issued by a given judge.
E. There shall be at least three judges assigned to the PID. Cases shall be assigned to one of the PID judges by the Clerk’s Office on a rotating basis. The assigned PID judges shall have the discretion to reassign a particular case to another judge on the PID if necessary to address the particular workloads of a given judge.
F. The judges assigned to the PID shall meet on a periodic basis to review these protocols and to propose any additions, deletions, or corrections to them. The PID judges may also review the appropriateness of the assignment of a given case to the PID, and their relative workloads with respect to the PID cases assigned to them.