4 Colo. Code Regs. § 723-1-1405

Current through Register Vol. 47, No. 11, June 10, 2024

Section 4 CCR 723-1-1405 - Discovery and Disclosure of Prefiled Testimony

(a) Incorporation by reference, exclusions, and discovery and disclosures generally.

(I) Except as provided in subparagraph (II) of this paragraph, the Commission incorporates by reference rules 26-37 of the Colorado Rules of Civil Procedure.

(II) The following rules of Chapter 4 of the Colorado Rules of Civil Procedure are not incorporated by reference: 26(a)(1)-(4); 26(b)(2); the first two sentences of 26(d); 30(a)(2)(A); 30(a)(2)(C); 33(b)(3); the first two sentences of the second paragraph of 34(b); 35; the time requirement of the second sentence of the second paragraph of 36(a); 37(c); and any reference to a case management order. In addition to the foregoing exclusions, any portion of Chapter 4 of the Colorado Rules of Civil Procedure that is inconsistent with any Commission rule shall also be excluded.

(III) Unless the Commission orders otherwise, the Colorado Rules of Civil Procedure incorporated by reference govern discovery.

(b) In advice letter and application proceedings subject to an applicable statutory period for the Commission to issue a decision, a party shall serve discovery responses regarding direct and answer testimony, and objections if any, within ten business days from service of a request. A party shall serve discovery responses regarding rebuttal or cross-answer testimony, and objections if any, within seven business days of a request. These response times apply regardless of the number of discovery requests or subparts to discovery requests issued by parties.

(c) In adjudicatory proceedings where no statutory period for Commission decision exists and in proceedings where the applicant has waived the applicable statutory period for the Commission to issue a decision, a party shall serve discovery responses and objections, if any, within ten business days from service of a request. These response times apply regardless of the number of discovery requests or subparts to discovery requests issued by parties.

(d) In proceedings where prefiled testimony is filed, the last day to propound written discovery directed solely to direct testimony shall be the deadline for filing answer testimony, the last day to propound discovery solely directed to answer testimony shall be the deadline for filing rebuttal and cross-answer testimony and the last day to propound discovery solely directed to rebuttal and cross-answer testimony shall be five business days before the first day of hearing.

(e) Deadlines established in paragraphs (b) through (d) are subject to modification by agreement of the person propounding discovery and the person upon whom the discovery is propounded.

(f) Discovery requests that are unrestricted as to both time and scope (e.g., all e-mails and other materials) or cover a time period more than ten years prior to the filing of the application are presumptively deemed to be not reasonably calculated to lead to the discovery of admissible evidence. A proponent can overcome such presumption with leave of the Commission or without (e.g., acknowledgement by respondent) by demonstrating that such requests are reasonably calculated to lead to discovery of admissible evidence under the circumstances. Without limitation, the determination of reasonableness may include consideration of whether the discovery propounded is reasonably necessary to evaluate the proposal before the Commission and whether the burden or cost of the discovery sought substantially outweighs the likely probative value of the information.

(g) The Commission will entertain motions to compel or for protective orders only after the movant has made a good faith effort to resolve the discovery dispute. The Commission discourages discovery disputes, and will sanction parties and attorneys that do not cooperate in good faith. Such sanctions may include, but are not limited to, payment of an opposing party's costs, expenses, and attorney's fees attributable to a lack of good faith, dismissal of a party, disallowance of witness testimony, or such other and further relief as the Commission may deem appropriate. Resolution of discovery disputes shall take precedence over other matters.

(h) Discovery requests, responses, and objections thereto shall not be filed with the Commission except as necessary to support a pleading relating to discovery, as an attachment to prefiled testimony, as a prefiled exhibit, as an exhibit offered at hearing, or as an impeachment exhibit. No discovery, discovery responses, or objections to discovery shall be submitted to or served through the Commission's E-Filings System. Paragraph 1205(f) addresses service with respect to discovery.

(i) In accelerated complaint proceedings, unless the Commission orders otherwise:

(I) Within ten days of the filing of the answer, the complainant shall file and serve on all other parties a list of witnesses, together with a brief summary of the testimony of each witness, and copies of all exhibits it intends to offer into evidence.

(II) Within ten days of service of the complainant's list of witnesses and copies of exhibits, the respondent shall file and serve on all other parties a list of witnesses, together with a brief summary of the testimony of each witness, and copies of all exhibits it intends to offer into evidence.

(III) Discovery may commence with the filing of the complaint. Unless the Commission orders otherwise, the following shall apply:

(A) each party shall be limited to taking not more than two depositions; and

(B) each party shall be limited to a total of not more than 20 interrogatories, including all discrete subparts, requests for production of documents, or requests for admission.

(IV) Responses to discovery requests, including any objections, shall be served within seven days of receipt of the request. Any motion to compel shall be filed and served within five days of receipt of any objection, and a response to such a motion shall be filed and served within seven days of receipt of the motion.

(j) In complaint proceedings that are not accelerated, application proceedings, and all rate proceedings set for hearing, all parties shall file and serve their testimony, including attachments, as ordered by the Commission.

(k) In regulated intrastate carrier application proceedings, notwithstanding anything in this rule to the contrary, and unless the Commission orders otherwise:

(I) If an applicant does not file its testimony or a detailed summary of testimony, and copies of its exhibits with its application, the applicant shall file and serve its list of witnesses and copies of its exhibits within ten days after the conclusion of the notice period.

(II) Each intervenor in a regulated intrastate carrier application proceeding shall file and serve its list of witnesses and copies of its exhibits. If the applicant has filed its testimony or a detailed summary of testimony, and copies of exhibits with the application, each intervenor shall file and serve its list of witnesses and copies of its exhibits not later than ten days after the conclusion of the notice period. If the applicant has not filed its testimony or a detailed summary of testimony, and copies of exhibits with the application, each intervenor shall file and serve its list of witnesses and copies of its exhibits not later than 20 days after the notice period has expired.

(III) No depositions may be taken.

(IV) Parties shall be limited to a single set of not more than 20 interrogatories to each party, including all discrete subparts, requests for production of documents, or requests for admission.

(V) Data requests for documents or tangible things shall not exceed a total of six months of the 12-month period immediately preceding the commencement of the proceeding.

(VI) Any person adversely affected by a failure of another party to provide discovery may file a motion to compel discovery, a motion to dismiss, or a motion in limine.

4 CCR 723-1-1405

38 CR 02, January 25, 2015, effective 2/14/2015

38 CR 20, October 25, 2015, effective 11/14/2015

43 CR 13, July 10, 2020, effective 7/30/2020

45 CR 07, April 10, 2022, effective 4/30/2022