C.r.c.p. 34
The party upon whom the request is served shall serve a written response within 35 days after the service of the request. A shorter or longer time may be directed by the court or agreed to in writing by the parties pursuant to C.R.C.P. 29. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, with specificity the grounds for objecting to the request. The responding party may state that it will produce copies of information instead of permitting inspection. The production must then be completed no later than the time for inspection stated in the request or another reasonable time stated in the response. An objection must state whether any responsive materials are being withheld on the basis of that objection. If objection is made to part of an item or category, the part shall be specified. A timely objection to a request for production stays the obligation to produce which is the subject of the objection until the court resolves the objection. No separate motion for protective order pursuant to C.R.C.P. 26(c) is required. The party submitting the request may move for an order pursuant to C.R.C.P. 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.
C.r.c.p. 34
Comments
1995
[1] Revised C.R.C.P. 34 now interrelates with the differential case management features of C.R.C.P. 16 and C.R.C.P. 26. Because of mandatory disclosure, substantially less discovery is needed.
[2] A discovery schedule for the case is required by C.R.C.P. 16(b)(1)(IV). Under the requirements of that Rule, the parties must set forth in the Case Management Order the timing and number of requests for production and the basis for the necessity of such discovery with attention to the presumptive limitation and standards set forth in C.R.C.P. 26(b)(2). There is also the requirement that counsel certify they have advised their clients of the estimated expenses and fees involved in the discovery. Discovery is thus tailored to the particular case. The parties in the first instance and ultimately the Court are responsible for setting reasonable limits and preventing abuse.
2015
[3] Rule 34 is changed to adopt similar revisions as those proposed to Fed. R. Civ. P. 34, which are designed to make responses to requests for documents more meaningful and transparent. The first amendment is to avoid the practice of repeating numerous boilerplate objections to each request which do not identify specifically what is objectionable about each specific request. The second amendment is to allow production of documents in place of permitting inspection but to require that the production be scheduled to occur when the response to the document request is due, or some other specific and reasonable date. The third amendment is to require that when an objection to a document request is made, the response must also state whether, in fact, any responsive materials are being withheld due to that objection. The fourth and final amendment is simply to clarify that a written objection to production under this Rule is adequate to stop production without also filing a motion for a protective order.
Annotation I. General Consideration. Law reviews. For article, "Use of Summary Judgments and the Discovery Procedure", see 24 Dicta 193 (1947). For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For article, "Depositions and Discovery, Rules 26 to 37 ", see 28 Dicta 375 (1951). For article, "Depositions and Discovery: Rules 26-37 ", see 23 Rocky Mt. L. Rev. 562 (1951). For note, "Comments on Rule 34 ", see 30 Dicta 367 (1953). For article, "Civil Remedies and Civil Procedure", see 30 Dicta 465 (1953). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "Plaintiff's Advantageous Use of Discovery, Pre-Trial and Summary Judgment", see 40 Den. L. Ctr. J. 192 (1963). For article, "Taking Evidence Abroad for Use in Litigation in Colorado", see 14 Colo. Law. 523 (1985). For article, "Rule 34(c): Discovery of Non-Party Land and Large Intangible Things", see 14 Colo. Law. 562 (1985). For article, "Discovery and Spoliation Issues in the High-Tech Age", see 32 Colo. Law. 81 (September 2003). C.R.C.P. 26 to 37 must be construed together along with the requirement that plaintiff establish a prima facie case for punitive damages, as a condition precedent to the plaintiff's right to discovery of defendant's financial information. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Civil discovery rules inapplicable to release hearings. Based on §§ 16-8-115 to 16-8-117 and on the special nonadversary nature of a release inquiry, the participants in release proceedings do not have the broad right of discovery as provided in the rules of civil procedure. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). Under C.R.C.P. 81(a), the procedure in release hearings under § 16-8-115 is so inconsistent and in conflict with the rules of civil procedure as to make civil discovery rules inapplicable to release hearings. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). Applied in Petrini v. Sidwell, 38 Colo. App. 454, 558 P.2d 447 (1976); Globe Drilling Co. v. Cramer, 39 Colo. App. 153, 562 P.2d 762 (1977); City & County of Denver v. District Court, 199 Colo. 223, 607 P.2d 984 (1980); City & County of Denver v. District Court, 199 Colo. 303, 607 P.2d 985 (1980); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Wilson v. United States Fid. & Guar. Co., 633 P.2d 493 (Colo. App. 1981); Pietramale v. Robert G. Fisher Co., 638 P.2d 847 (Colo. App. 1981); Hawkins v. District Court, 638 P.2d 1372 (Colo. 1982); Caldwell v. District Court, 644 P.2d 26 (Colo. 1982). II. Scope. Production of statistical data should be made pursuant to this rule instead of using interrogatories. With regard to interrogatories which request information and data obtainable from available documents, the general rule is that a party should not be permitted to compel his opponent to make compilations or perform research and investigations with respect to statistical information which he might make for himself by obtaining the production of the books and documents pursuant to this rule. Val Vu, Inc. v. Lacey, 31 Colo. App. 55, 497 P.2d 723 (1972). Under this rule, a party does not have an unqualified right to examine a statement signed by him and delivered to the other party during an investigation conducted prior to the time suit is filed. McCoy v. District Court, 126 Colo. 32, 246 P.2d 619 (1952). If a litigant is entitled to th, 126 Colo. 32, 246 P.2d 619 (1952). The limitations set forth in this rule are: (1) Relevancy under C.R.C.P. 26(b); and (2) possession, custody, or control. Michael v. John Hancock Mut. Life Ins. Co., 138 Colo. 450, 334 P.2d 1090 (1959). It is not error to require a party to produce documents which are under his control, though not in his actual possession, and which are obtainable upon his order or direction. Michael v. John Hancock Mut. Life Ins. Co., 138 Colo. 450, 334 P.2d 1090 (1959). Denial of motion to compel production of documents on grounds that voluminous documentation had been provided and that the attorney-client privilege had not been waived was not an abuse of the trial court's discretion in discovery matters. Hill v. Boatright, 890 P.2d 180 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds sub nom. Boatright v. Derr, 919 P.2d 221 (Colo. 1996). Limitation in protective order prohibiting defendant from copying petitioner's documentary evidence goes far beyond what discovery requires, and flies in the face of that aspect of this rule which specifically authorizes such copying. Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974). Discovery of documents rather than ex parte questioning appropriate. Ex parte questioning of physicians or others concerning documents to be examined cannot be ordered by the court in personal injury action, and, if an inspecting party needs further information concerning documentary material, the formal method of eliciting the same is by further discovery procedure. Fields v. McNamara, 189 Colo. 284, 540 P.2d 327 (1975). Ordering plaintiff authorization allowing inspection proper. Under this rule, court order permitting the inspection and copying of records, reports, and X-rays, and ordering plaintiff to execute and deliver an authorization allowing such inspection and copying, where the plaintiff brought an action for damages for injuries allegedly sustained in an automobile accident, was not error in the provisions of the authorization. Fields v. McNamara, 189 Colo. 284, 540 P.2d 327 (1975). A party may be required to obtain copies of tax returns filed by him, since he has a potential right to the custody or control of such copies. Michael v. John Hancock Mut. Life Ins. Co., 138 Colo. 450, 334 P.2d 1090 (1959). "Surveillance movies" are discoverable. Crist v. Goody, 31 Colo. App. 496, 507 P.2d 478 (1972). A party cannot be compelled to produce X-ray photographs taken and retained by his physician in the absence of a showing that the party has a legal right to demand the photographs. Michael v. John Hancock Mut. Life Ins. Co., 138 Colo. 450, 334 P.2d 1090 (1959). Order to produce privileged communications improper. Order compelling defendant-insurer to make available to plaintiffs' attorneys all correspondence between its home office and its local counsel and local agents as well as all correspondence between insurer and its attorneys or agents and insured was improper as a violation of the attorney-client privilege. General Accident Fire & Life Assurance Corp. v. Mitchell, 128 Colo. 11, 259 P.2d 862 (1953). A privilege may be waived by authorized parties. A trustee in bankruptcy for a corporation stands in the shoes of the board of directors and therefore has the power, in the exercise of his discretion, to waive the privilege under § 13-90-107 that the work product of a certified public accountant is nondiscoverable without the client's consent. Weck v. District Court, 161 Colo. 384, 422 P.2d 46 (1967). Personnel files and police reports within scope of privilege are protected from discovery. To the extent that they come within the scope of the official information privilege, the personnel files and staff investigation bureau reports of the Denver police department are protected from discovery. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). To establish legitimate expectation of nondisclosure, claimant must show, first, that he or she has an actual or subjective expectation that the information will not be disclosed, and second, the claimant must show that the material or information which he or she seeks to protect against disclosure is highly personal and sensitive and that its disclosure would be offensive and objectionable to a reasonable person of ordinary sensibilities. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). Certain factors shall be considered when official information privilege claimed. In a litigation arising from allegations of police misconduct, when the official information privilege is claimed for files and reports maintained by a police department, concerning an incident upon which the allegations of misconduct are based, or about the officers involved in the incident, the trial court has the advantage of the following formulation of factors to be considered in applying the privilege: (1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is nonfrivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). Balancing competing interests required where official information privilege claimed. Where the official information privilege is raised in opposition to a request for discovery, the trial court must balance the competing interests through an in camera examination of the materials for which the official information privilege is claimed. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). Tripartite balancing inquiry undertaken when right to confidentiality is invoked. When the right to confidentiality is invoked to prevent disclosure of personal materials or information, a tripartite balancing inquiry must be undertaken by the court, as follows: (1) Does the party seeking to come within the protection of the right to confidentiality have a legitimate expectation that the materials or information will not be disclosed? (2) is disclosure nonetheless required to serve a compelling state interest? and (3) if so, will the necessary disclosure occur in that manner which is least intrusive with respect to the right to confidentiality? Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). Compelling state interest can override right to confidentiality. Even if it is determined that a claimant has a legitimate expectation that the personal materials or information in question will not be disclosed through state action, a compelling state interest can override the constitutional right to confidentiality which arises from that expectation. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). Compelling state interest in disclosure must consist of the very materials or information which would otherwise be protected. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). In certain cases, the court shall inquire into the manner of disclosure. When it is determined that a compelling state interest mandates the disclosure of otherwise protected materials or information, the trial court must further inquire into the manner in which the disclosure will occur and disclosure must only be made in a manner, consistent with the state interest to be served, which will intrude least on the claimant's right to confidentiality. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). Effect of doctrine of stare decisis is limited. Because the balancing process proceeds on an ad hoc basis, the effect of the doctrine of stare decisis in cases requiring application of the official information privilege is limited. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). Destructive testing is not a matter of right, but lies in the sound discretion of the trial court. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). The appropriate analysis in deciding whether to allow a destructive test as part of discovery where the owner of the object sought the testing was parallel to that involved in a conventional request for inspection under this rule and a resulting motion for a protective order under C.R.C.P. 26. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). Balance must be established. The dilemma which arises when the proposed test will somehow alter the original state of the object requires that a balance be established based upon the particular facts of the case and the broad policies of the discovery rules. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). A balance must be struck where a test will alter the original state of an object between the "costs" of the alteration of the object and the "benefits" of ascertaining the true facts of the case. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). Certain factors shall be considered in creating balance. Alternative means of ameliorating "costs", resulting from alteration of an object in destructive testing, such as the use of detailed photographs to preserve the appearance of the object, or use of other samples for the test, are relevant to the creation of the balance. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). Alternative, "nondestructive" means of obtaining the facts should be considered in evaluating the putative benefits of the tests. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). Bad faith or overreaching is a special factor to be considered in all cases of destructive testing. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). Destructive testing shall be undertaken last. A request for destructive testing compels that the court ensure that it is not undertaken until after other testing procedures have been completed by the parties. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). III. Procedure. Burden placed on party opposing discovery. Requirement that party requesting discovery make out a prima facie case is not imposed by this rule, and any burden that exists should be placed on those opposing discovery. Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974). A party seeking a subpoena duces tecum requiring production of documents by the other party at a deposition hearing must show good cause for the issuance of such a subpoena, and under such circumstances, C.R.C.P. 45(b), which provides for subpoena for the production of documentary evidence, must be read in conjunction with this rule. Lee v. Missouri P. R. R., 152 Colo. 179, 381 P.2d 35 (1963). File should be produced upon "good cause" shown. Where it was proved by uncontradicted testimony that a claims agent who investigated the accident could not testify or give a "coherent story about the results of his investigation" without first refreshing his memory from his file on the investigation, such was sufficient to show good cause why the file should be produced at the time of the taking of the agent's deposition. Lee v. Missouri P. R. R., 152 Colo. 179, 381 P.2d 35 (1963). Production of documents is still subject to protective orders by court and objections. Where good cause for the production of documents at time of taking depositions is shown, such required presentation is subject to any protective orders the court might make concerning the use to be made of the documents and is subject to any objections to specific questions asked of deponent concerning the documents. Lee v. Missouri P. R. R., 152 Colo. 179, 381 P.2d 35 (1963). Pretrial order reviewable in certain circumstances. Orders pertaining to pretrial discovery are interlocutory in nature and are not ordinarily reviewable in an original proceeding. Because, however, the exercise of original jurisdiction is discretionary and governed by the particular circumstances of the case, there are exceptions to this general rule when, for example, a pretrial discovery order significantly departs from the controlling standards of discovery, or when a pretrial discovery order will cause a party unwarranted damage that cannot be cured on appeal, such as where treatment records are protected from disclosure by statutory privileges. Clark v. District Court, 668 P.2d 3 (Colo. 1983). A party produces documents requested pursuant to C.R.C.P. 34 by making them available for inspections and copying. Application of Hines Highlands Partnership, 929 P.2d 718 (Colo. 1996).
For scope of discovery, see C.R.C.P. 26(b); for inspection of mines, see § 34-50-105 , C.R.S.; for protective orders concerning discovery, see C.R.C.P. 26(c); for motion for order compelling discovery, see C.R.C.P. 37(a); for subpoena for production of documentary evidence, see C.R.C.P. 45(b); for parties, see C.R.C.P. 17 to 25.