by Morgan Wiener
One of the recurring questions and controversies among probate litigators is whether and to what extent discovery applies in contested probate proceedings. The confusion in this area is largely due to the unique nature of certain types of proceedings litigated under the Colorado Probate Code (for example, from a practical standpoint, how do you apply the civil discovery rules to an emergency hearing for the removal of a trustee?), the contradiction between Rule 1, C.R.C.P. (“These rules govern the procedure in . . . probate courts. . . “) and Rule 26, C.R.C.P. (“Unless ordered by the court or stipulated by the parties, provisions of this Rule shall not apply to . . . probate. . . “), and the fact that, until now, the Colorado Rules of Probate Procedure did not include a discovery rule.
On October 10, 2013, the Colorado Supreme Court took a step towards adding clarity to this area by adopting Rule 37 of the Colorado Rules of Probate Procedure. This new discovery rule is effective immediately. See below for the full text of this important new rule.
Rule 37. Discovery
(a) This rule establishes the provisions and structure for discovery in all proceedings seeking relief under Title 15, C.R.S. Nothing in this Rule shall alter the court’s authority and ability to direct proportional limitations on discovery or to impose a case management structure or enter other discovery orders. Upon appropriate Motion or sua sponte, the court may apply the Rules of Civil Procedure in whole or in part, may fashion discovery rules applicable to specific proceedings and may apply different discovery rules to different parts of the proceeding.
(b) Unless otherwise ordered by the court, the parties may engage in the discovery provided by C.R.C.P. 27 through 37. Any discovery conducted in Title 15 proceedings prior to the issuance of a case management or other discovery order shall be subject to C.R.C.P. 26(a)(2)(A); 26(a)(2)(B)(4) and (5); and 26(b) through (g). However, due to the unique, expedited and often exigent circumstances in which probate proceedings take place, C.R.C.P. 16, 16.1, 16.2 and 26(a)(1), do not apply to probate proceedings unless ordered by the court or stipulated to by the parties.
(c) C.R.C.P. 45 and 121, Section 1-12, are applicable to proceedings under Title 15.
(d) Notwithstanding subsections (a) through (c) of this Rule 37, subpoenas and discovery directed to a respondent in proceedings under Part 3 of Article 14 of Title 15, shall not be permitted without leave of court, or until a petition for appointment of a guardian has been granted under Section 15-14-311, C.R.S.