Colorado's mandatory disclosures: 28 days after the case is at issue, favorable or not

Colorado front-loads discovery. Before anyone serves an interrogatory, each party has to hand over four categories of material, and the rule says explicitly that it does not matter whether the material helps you.

The deadline is short, it runs from a date many people compute wrongly, and none of the usual excuses work.

What must be disclosed

C.R.C.P. 26(a)(1) opens by removing the trigger most people expect:

Except to the extent otherwise directed by the court, a party shall, without awaiting a discovery request, provide to other parties the following information, whether or not supportive of the disclosing party's claims or defenses:

"Without awaiting a discovery request", and "whether or not supportive." Both phrases are doing work — this is an affirmative obligation, and it covers unfavorable material.

(A) Witnesses:

the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to the claims and defenses of any party and a brief description of the specific information that each such individual is known or believed to possess;

Colorado asks for more than a list of names. It wants a brief description of the specific information each person is believed to hold. A bare witness list does not comply.

(B) Documents:

a listing, together with a copy of, or a description by category, of the subject matter and location of all documents, data compilations, and tangible things in the possession, custody or control of the party that are relevant to the claims and defenses of any party, making available for inspection and copying such documents and other evidentiary material, not privileged or protected from disclosure, as though a request for production of those documents had been served pursuant to C.R.C.P. 34;

Note the standard: relevant to the claims and defenses of any party — not merely to your own. And the material must be made available as though a Rule 34 request had been served.

(C) Damages:

a description of the categories of damages sought and a computation of any category of economic damages claimed by the disclosing party, making available for inspection and copying pursuant to C.R.C.P. 34 the documents or other evidentiary material relevant to the damages sought, not privileged or protected from disclosure …

A computation, not an estimate, for each category of economic damages — with the supporting documents.

(D) Insurance:

any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment, making such agreement available for inspection and copying pursuant to C.R.C.P. 34.

Twenty-eight days from "at issue"

The deadline sentence follows immediately:

Disclosures shall be served within 28 days after the case is at issue as defined in C.R.C.P. 16(b)(1).

This is the part that is most often miscalculated. The clock does not run from filing, from service, or from your answer. It runs from the case being at issue as C.R.C.P. 16(b)(1) defines that term — so that rule has to be read alongside this one before any date is entered in a diary.

The three excuses that do not work

The rule then forecloses them by name:

A party shall make the required disclosures based on the information then known and reasonably available to the party and is not excused from making such disclosures because the party has not completed investigation of the case or because the party challenges the sufficiency of another party's disclosure or because another party has not made the required disclosures.

Disclosure is based on what is "then known and reasonably available" — which is also the answer to the worry about disclosing before you know everything. You disclose what you have.

And objections are deferred rather than waived:

Parties shall make these disclosures in good faith and may not object to the adequacy of the disclosures until the case management conference pursuant to C.R.C.P. 16(d).

So the place to raise a complaint about the other side's disclosures is the case management conference, not a letter in week two.

Where the rule does not apply

C.R.C.P. 26(a) carves out a substantial list at the top:

Unless otherwise ordered by the court or stipulated by the parties, provisions of this Rule shall not apply to domestic relations, juvenile, mental health, probate, water court proceedings subject to sections 37-92-302 to 37-92-305, C.R.S., forcible entry and detainer, C.R.C.P. 120, or other expedited proceedings.

Eviction cases and Rule 120 proceedings are outside it — which matters, because those are exactly the case types where a self-represented party is most likely to go looking for a disclosure obligation that does not exist.

Experts come next

C.R.C.P. 26(a)(2)(A) requires identification of anyone who may give opinion evidence:

In addition to the disclosures required by subsection (a)(1) of this Rule, a party shall disclose to other parties the identity of any person who may present evidence at trial, pursuant to Rules 702, 703, or 705 of the Colorado Rules of Evidence together with an identification of the person's fields of expertise.

For retained experts, (a)(2)(B)(I) requires a signed written report, and specifies its contents — beginning with "a complete statement of all opinions to be expressed and the basis and reasons therefor" and "a list of the data or other information considered by the witness in forming the opinions."

Note the trigger in (a)(2)(A): it is not limited to retained experts. Anyone who may give Rule 702, 703 or 705 evidence — including a treating physician or an employee — must be identified, with their fields of expertise.

How Colorado compares

The most significant difference from federal practice is the second row. Federal Rule 26(a)(1) requires disclosure of material a party may use to support its claims or defenses. Colorado requires disclosure "whether or not supportive" — a materially broader obligation.

A short checklist

1. Work out when the case is at issue under C.R.C.P. 16(b)(1), then count 28 days. Do not count from filing or from your answer.
2. Check whether the rule applies at all — domestic relations, juvenile, mental health, probate, water, eviction and Rule 120 proceedings are excluded.
3. Disclose the bad material too. The rule covers information whether or not it supports you.
4. Describe what each witness knows, not just who they are.
5. Produce the documents, or describe them by category and location — and make them available as though a Rule 34 request had been served.
6. Compute economic damages by category and attach the supporting material. A lump sum is not a computation.
7. Disclose the insurance agreement, and make it available for inspection and copying.
8. Do not wait for the other side. Their failure, and your incomplete investigation, are both expressly excluded as excuses.
9. Save your objections for the case management conference — that is where the rule puts them.
10. Identify anyone who may give expert evidence, not only retained experts, with their fields of expertise.

Where these rules live

• C.R.C.P. 16 — Case Management and Trial Management
• C.R.C.P. 26 — General Provisions Governing Discovery
• C.R.C.P. 34 — Production of Documents
• C.R.C.P. 37 — Failure to Make Disclosure or Cooperate in Discovery

This page explains what the rules say. It isn't legal advice, and the Colorado Rules of Evidence referenced in C.R.C.P. 26(a)(2) sit outside this site's Colorado corpus.