Sanchez v. District Court In and For Larimer County

• Decision Date: 23 February 1981
• Docket Number: No. 80SA438,80SA438
• Citation: 624 P.2d 1314
• Parties: David C. SANCHEZ and Marilyn Sanchez, Petitioners, v. DISTRICT COURT IN AND FOR the COUNTY OF LARIMER and the Honorable J. Robert Miller, a Judge of the said Court, Respondents.
• Court: Colorado Supreme Court

Page 1314

624 P.2d 1314

13 A.L.R.4th 766

David C. SANCHEZ and Marilyn Sanchez, Petitioners, v. DISTRICT COURT IN AND FOR the COUNTY OF LARIMER and the Honorable J. Robert Miller, a Judge of the said Court, Respondents.

No. 80SA438.

Supreme Court of Colorado, En Banc.

Feb. 23, 1981.

As Modified on Denial of Rehearing March 9, 1981.

Colorado Rural Legal Services, Inc., Glenn G. Meyers, Fort Collins, for petitioners.

Fischer & Wilmarth, Steven G. Francis, Fort Collins, for respondents.

QUINN, Justice.

David and Marilyn Sanchez (petitioners) filed this original proceeding seeking relief in the nature of mandamus under C.A.R. 21. The petitioners claim that the respondent court grossly abused its discretion by denying their motion under C.R.C.P. 30(b)(4) to take tape recorded depositions of various persons in connection with a pending lawsuit filed by the petitioners against a retail car dealer. The petitioners submitted with their motion a proposed order outlining the procedures and conditions under which the depositions would be taken. The district court denied the motion because the petitioners did not establish their indigency. We issued a rule to show cause and now make the rule absolute.

The facts relevant to the issue raised by this proceeding may be briefly stated. In January 1979 the petitioners, husband and wife with two minor children, purchased by retail installment contract a 1972 AMC Ambassador automobile from Economy Sales and Services, Inc., for $1415. They apparently were delinquent in monthly payments and in the summer of 1979 the seller repossessed and sold the car. The petitioners, through Colorado Rural Legal Services, Inc., filed a complaint against the seller alleging various claims: the violation of the disclosure requirements of the Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq., and of the Colorado "Uniform Consumer Credit Code," section 5-1-101 et seq., C.R.S.1973; wrongful repossession and conversion; intentional misrepresentation; breach of implied warranty of merchantability, section 4-2-314, C.R.S.1973; deceptive trade practices, section 6-1-105, C.R.S.1973; wrongful resale in violation of the Uniform Commercial Code, section 4-9-501 et seq., C.R.S.1973; and a claim for punitive damages and attorney fees. The seller answered the complaint and the petitioners thereafter pursued some discovery by written interrogatories, a request for production of documents and a request for admissions.

In April 1980 the petitioners moved for leave under rule 30(b)(4) to take the depositions of officers and agents of the seller and other witnesses by means of a tape recorder. The respondent court denied the motion for the reason that the petitioners had not shown proof of a financial need to proceed in this manner. In September 1980 the petitioners again filed an identical motion supported by two affidavits. One affidavit showed their monthly family income to be $642 with monthly expenses and outstanding debts in excess of this amount. The other affidavit listed the average Colorado costs for a stenographic deposition at $10 to $15 per hour attendance fee with a two hour minimum, and a transcription cost ranging from $1.85 to $2.30 per page of original transcript. ¹ The petitioners also filed a proposed order requiring the imposition of various safeguards to ensure accuracy and trustworthiness, including procedures for the taping process and for the transcription of the recorded testimony, and for the filing of a sworn certification that the deposition filed with the court is a true record of the testimony given by the witness. ² The respondent court on September 4, 1980 once again denied the motion "on the basis that the affidavit shows these plaintiffs are not indigent plaintiffs" and "are making somewhere in the neighborhood of $650 or more a month ...." An original proceeding followed in this court.

We conclude that the respondent court abused its discretion in denying the petitioners' motion under rule 30(b)(4). Before addressing the merits of the issue, however, it is appropriate that we explain the reasons for our exercise of original jurisdiction.

I.

This court's original jurisdiction has its source in Article VI, Section 3, of the Colorado Constitution; its exercise is discretionary and governed by the circumstances of the case. E. g., Shore v. District Court, 127 Colo. 487, 258 P.2d 485 (1953). We have not been reluctant to exercise that original jurisdiction when an order, otherwise interlocutory in character, will place a party at a significant disadvantage in litigating the merits of the controversy. E. g., People v. District Court, Colo., 623 P.2d 55 (1981); Varner v. District Court, Colo., 618 P.2d 1388 (1980) (S.Ct.No. 80SA344, announced November 3, 1980); Chicago Cutlery Co. v. District Court, 194 Colo. 10, 568 P.2d 464 (1977). Although matters of pretrial discovery are ordinarily within the discretion of the trial court, they are not exempted from extraordinary relief under appropriate circumstances. E. g., Seymour v. District Court, 196 Colo. 102, 580 P.2d 302 (1978); Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977); Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064 (1959).

In this case it is apparent that the respondent court misapprehended the nature of its discretion. It accorded conclusive significance to an irrelevant factor (the petitioners' failure to establish indigency) and, concomitantly, disregarded the controlling criteria (accuracy and trustworthiness) in denying the petitioners' motion for employment of this inexpensive discovery technique. In view of the petitioners' economic condition, the denial of the petitioners' motion results in the virtual preclusion of any deposition discovery in preparation for the trial of this matter. Such denial, which is interlocutory in nature, may otherwise evade effective review and, under these circumstances, the exercise of our original jurisdiction is appropriate. See, e. g., Lucas v. District Court, supra.

Furthermore, we have not previously addressed the issue of tape recorded depositions under C.R.C.P. 30(b)(4). This proceeding affords us an opportunity to delineate the purpose and scope of the rule so that the practicing bar may take full advantage of its "potential for making a significant contribution to the efficient and economic administration of justice." Colonial Times, Inc. v. Gasch, 509 F.2d 517, 525 (D.C.Cir.1975). Thus, the importance of the issue here raised to the administration of pretrial discovery in general furnishes us an additional reason to exercise original jurisdiction in this matter.

II.

C.R.C.P. 30(b)(4) was promulgated in 1970 with an effective date of April 1, 1970. The rule is identical to its federal counterpart, F.R.C.P. 30(b)(4), and provides:

"The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at his own expense." ³

The Note of the Advisory Committee to the Federal Rules of Civil Procedure states in rather cryptic fashion that the purpose of the rule is to facilitate "less expensive procedures" as an alternative to the high cost of stenographic recording.

Utilization of the rule facilitates participation of the economically disadvantaged in effective discovery techniques through the use of inexpensive modern technology. Lucas v. Curran, 62 F.R.D. 336 (E.D.Pa.1974). Application of the rule to an inexpensive mode of deposition discovery should not be conditioned on a showing of indigency, a showing of financial need, or economic disparity between the parties. As Chief Judge Bazelon observed in Colonial Times, Inc. v. Gasch, 509 F.2d 517, 521 (D.C.Cir. 1975):

"The ability of the movant to pay for stenographic depositions should, as a general matter, be irrelevant to the grant of an order to take depositions by other than stenographic means. The Rule is designed to decrease everyone's stenographic costs whenever that can be accomplished with no loss of accuracy and integrity."

The respondent court in this case misconceived the nature of its discretion by conditioning the application of the rule upon a showing of indigency by the petitioners. Rule 30(b)(4) contemplates no such requirement and we have found no authority so construing it. ⁴ Quite the contrary, the high cost of litigation being a concern to all, a construction of a rule that encourages experimentation for the purpose of reducing costs "is an important step toward a more economic system of justice." Colonial Times, Inc. v. Gasch, 509 F.2d at 525. See also, e. g., Champagne v. Hygrade Fruit Products, Inc., 79 F.R.D. 671 (E.D.Wash.1978); Lucas v. Curran, supra; Marlboro Products Corp. v. North American Philips Corp., 55 F.R.D. 487 (S.D.N.Y.1972).

We reject the suggestion that, as a condition precedent to taking tape recorded depositions, the moving party first must make a good faith effort to obtain the information by other discovery methods. No such requirement is applicable to a stenographic deposition and no good reason exists for treating a tape recorded deposition any differently. The rules of civil procedure sanction the use of all discovery methods and the frequency of use of these methods should not be limited, C.R.C.P. 26(a), unless there is a showing of good cause based on the particular circumstances of the case, C.R.C.P. 26(c).

A trial judge properly may deny a motion for tape recorded depositions where the objecting party shows that there exists a potential for abuse or harassment of a witness or party, see U.A.W. v. National Caucus of Labor Committees, 525 F.2d 323 (2d Cir. 1975), or where the objecting party...