Colorado Court of Appeals rejects the use of “Lone Pine” orders requiring plaintiffs to provide evidence to support their case prior to conducting discovery

In Strudley v. Antero Resources, Corp., et al., Colorado Court of Appeals Case No. 12CA1251 (July 3, 2013), the Colorado Court of Appeals held that Colorado law prohibits the use of so called “Lone Pine” orders which require plaintiffs to present prima facie evidence supporting their claims prior to conducting discovery. 

The Strudleys sued four defendants for allegedly causing personal injuries to the Strudley family and property damage to their wells through the Defendants’ natural gas drilling operations near the Strudleys' home.   At the Defendants' request, the trial court ordered the Plaintiffs to provide expert reports and medical records demonstrating injuries and causation before they could conduct discovery.  When the Plaintiffs’ proofs fell short, the trial court dismissed their case with prejudice.   

On review, the Court of Appeals held that existing Colorado law prohibits the use of Lone Pine orders before allowing discovery on issues central to a plaintiff’s claim.  Strudley, ¶26. 

Lone Pine orders get their name from an unpublished decision by the New Jersey Superior Court in 1986 in which the court entered a case management order requiring the plaintiffs to provide facts to support their claims through expert reports, or risk having their case dismissed.  Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Ct., 1986).  Since then, courts in other jurisdictions have used similar orders in exceptionally complex cases.  See discussion in Strudley, ¶¶14, 19-24.  The Colorado Court of Appeals held that such orders are contrary to Colorado law which favors broad discovery, and Colorado’s established system of pretrial rules and procedures designed to strike a balance between protecting defendants against frivolous claims, while allowing plaintiffs access to information which is central to their claims.  Strudley, ¶¶15-18, 38-39.

What do you think about Lone Pine orders?  Are they necessary to protect businesses against the expense of meritless litigation or an unwarranted denial of citizens’ access to courts? 

You can read the Court’s opinion here: http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1251-PD.pdf

Lee Katherine Goldstein is an appellate lawyer with the Denver law firm of Fairfield and Woods, PC.