In re the Marriage of Wiggins
2012 CO 44
| Colo. | 2012Background
- Divorced parents in ongoing post-dissolution litigation; Mother's employment file was subpoenaed by Father's attorney three days before a planned hearing.
- Subpoena commanded production of the entire employment file at the hearing, not in advance, triggering objections.
- Father's attorney arranged with the school business manager to have the file scanned and emailed before the hearing, without Mother’s consent or notice to her.
- Mother’s attorney protested and sought protective order and sanctions; the district court denied relief.
- Court addresses whether Rule 45 was violated and whether sanctions are warranted, and whether original jurisdiction is appropriate to review the discovery order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Father's attorney violated Rule 45 by obtaining documents before the deposition/hearing | Mother argues advance production violated Rule 45 | Father contends Rule 45 silent on advance production | Rule 45 prohibits pre-hearing production without consent or court order |
| Whether the issue is moot and can be reviewed | Mother argues not moot despite withdrawal of motion | Father argues mootness | Not moot; potential ongoing use of files preserves controversy |
| Whether advance production warrants sanctions under Rule 45 and 13-17-102(4) | Mother seeks sanctions for improper conduct | Father argues no sanctions specified in Rule 45 | Rule 45 violation established; sanctions left to trial court to determine |
| Whether original jurisdiction was proper to review the discovery order | Mother seeks immediate review under CAR 21 | Discretionary original review should be exercised | Original jurisdiction appropriate; order reviewed under CAR 21 |
Key Cases Cited
- In re Dist. Ct., 256 P.3d 687 (Colo.2011) (confidentiality concerns in discovery rulings)
- Cardenas v. Jerath, 180 P.3d 415 (Colo.2008) (discovery rulings exception to general interlocutory review)
- Direct Sales Tire Co. v. Dist. Ct., 686 P.2d 1316 (Colo.1984) (discovery rulings and Rule 45 limitations)
- Watson v. Reg'l Transp. Dist., 762 P.2d 133 (Colo.1988) (Rule 45(d) applicability to subpoenas duces tecum)
- Fognani v. Young, 115 P.3d 1268 (Colo.2005) (exercise of original jurisdiction in discovery matters)