Compelling discovery in Colorado: certify the conferral, and note what happens if they comply late
Colorado procedure · Last verified August 17, 2026
Colorado's motion to compel has one provision worth knowing before you decide whether to file: if the other side produces the material after you file, you can still recover the cost of filing.
That changes the calculation on a stalled request. The motion is not wasted simply because it works.
What the motion covers
C.R.C.P. 37(a) opens broadly, and the venue rule is simpler than the federal one:
Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery and imposing sanctions as follows:
(1) Appropriate Court. An application for an order to a party or to a person who is not a party shall be made to the court in which the action is pending.
Note that: party and non-party applications both go to the court where the action is pending. Federal practice sends non-party disputes to the court where the discovery is taken; Colorado does not.
Two kinds of motion, both needing certification
C.R.C.P. 37(a)(2)(A) covers failures of disclosure:
If a party fails to make a disclosure required by C.R.C.P. 26(a), any other party may move to compel disclosure and for appropriate sanctions. The motion shall be accompanied by a certification that the movant in good faith has conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.
(a)(2)(B) covers failures of discovery:
If a deponent fails to answer a question propounded or submitted pursuant to C.R.C.P. Rules 30 or 31, or a corporation or other entity fails to make a designation pursuant to C.R.C.P. Rules 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted pursuant to C.R.C.P. 33, or if a party, in response to a request for inspection submitted pursuant to C.R.C.P. 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion shall be accompanied by a certification that the moving party in good faith has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
Both require the certification to accompany the motion. Conferring is not enough; the certification is part of the filing.
Colorado's disclosure route matters more than it does elsewhere, because Rule 26(a)(1) imposes broad automatic obligations — including material whether or not it supports the disclosing party's case, within 28 days of the case being at issue. See Colorado's mandatory disclosures, and note that the rule defers objections to the adequacy of disclosures to the case management conference, which is where that argument belongs.
Evasive answers count
C.R.C.P. 37(a)(3):
Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subsection an evasive or incomplete disclosure, answer, or response shall be deemed a failure to disclose, answer, or respond.
Describe the deficiency in those terms. An answer that responds without answering is a failure under the rule.
Fees — including for late compliance
C.R.C.P. 37(a)(4)(A) is the provision that distinguishes Colorado:
If a motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court may, after reasonable notice and an opportunity to be heard, if requested, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses manifestly unjust.
Four things to take from it:
"Or if the disclosure or requested discovery is provided after the motion was filed." Producing on the eve of the hearing does not defeat the fee application.
The attorney is exposed — "the party or attorney advising such conduct or both of them."
"May", not "shall.** Colorado's award is discretionary where several states make it mandatory.
Three defenses, and the first is aimed squarely at the movant: no good-faith effort before filing; substantial justification for the nondisclosure or objection; or an award being manifestly unjust.
That first defense is why the certification has to be real. A motion filed without a genuine attempt is not merely unpersuasive — it forfeits the fee claim.
Building the motion
| Element | Why |
|---|---|
| The certification of conferral | Required by both (a)(2)(A) and (a)(2)(B), and its absence defeats fees |
| The request and the response, quoted | So the court can see the deficiency rather than take it on trust |
| The characterization — evasive, incomplete, or absent | Tracks the language of (a)(3) |
| What you want ordered, with a date | The order is what any later sanctions motion is built on |
| The fee request | Including for material produced after filing |
How Colorado compares
| Colorado | Wisconsin | New Jersey | Federal | |
|---|---|---|---|---|
| Certification required | yes, with the motion | expected | representation in the affidavit | yes, in the motion |
| Non-party applications | the case court | — | — | the discovery court |
| Fees where discovery arrives late | yes, expressly | — | — | yes |
| Fee award | discretionary ("may") | mandatory ("shall") | mandatory | mandatory |
| Attorney exposed | yes | yes | — | yes |
| Evasive answer = failure | yes | yes | yes | yes |
A short checklist
- Confer in good faith first — and mean it. Failing to is an express defense to your fee request.
- Attach the certification to the motion. Both subsections require it.
- Say whether the failure is of disclosure under Rule 26(a) or of discovery — they are separate routes in (a)(2).
- Characterize evasive or incomplete responses as failures, in the rule's own words.
- File in the case court, even for a non-party.
- Ask for expenses, and ask again if the material arrives after you file — the rule expressly covers that.
- Complete or adjourn a deposition before applying, where the dispute arose in one.
- Save adequacy-of-disclosure complaints for the case management conference, which is where Rule 26(a)(1) puts them.
Where these rules live
- C.R.C.P. 26 — General Provisions Governing Discovery
- C.R.C.P. 30 — Depositions Upon Oral Examination
- C.R.C.P. 33 — Interrogatories to Parties
- C.R.C.P. 34 — Production of Documents
- C.R.C.P. 37 — Failure to Make Disclosure or Cooperate in Discovery
- C.R.C.P. 16 — Case Management and Trial Management
This page explains what the rules say. It isn't legal advice, and what makes a nondisclosure substantially justified under C.R.C.P. 37(a)(4)(A) is developed in case law this site doesn't cover.