Colorado Supreme Court Forecloses Lone Pine Case Management Orders Under State Law

Keywords: Lone Pine, case management, environmental tort

In Antero Resources Corp. et al. v. Strudley, 2015 WL 1813000 (Colo. Apr. 20, 2015), the Colorado Supreme Court recently affirmed an appellate court decision holding that "Lone Pine orders" are not permitted by Colorado law. Lone Pine orders are case management tools that have been used for years in complex environmental tort cases to require plaintiffs to define their alleged injuries and to make an early prima facie showing of exposure and causation before full discovery proceeds.

Defendants often seek Lone Pine orders to obtain some balancing of discovery burdens: requiring the plaintiffs (typically, a large number of individuals claiming personal injuries and property damage) to provide some reasonable proof of potential liability before requiring the defendants (typically, as here, corporations) to engage in extensive and expensive discovery, often involving review of many thousands of corporate records, among other required responses.

Though Lone Pine orders are established practice in federal courts and in many states, and while this particular case appears limited to Colorado law, Strudley joins other recent decisions in criticizing or rejecting the use of Lone Pine orders or similar early case management tools for streamlining litigation.

Procedural History

In tort claims brought against Antero Resources Corp., the Strudleys alleged that they suffered burning eyes, nausea, bloody noses and headaches due to alleged exposure to contaminated air, water and soil from natural gas fracking operations. At the outset of the case, the trial court issued a Lone Pine order requiring the Strudleys to show evidence of exposure, injury and causation.

Lone Pine orders are pre-discovery orders designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation by requiring plaintiffs to produce some evidence to support a credible claim.1 They essentially require each plaintiff to disclose basic "information [that he] should have had before filing" a lawsuit, including "information regarding the nature of his injuries, the circumstances under which he could have been exposed to harmful substances, and the basis for believing that the named defendants were responsible for his injuries."2 "The basic purpose of a Lone Pine order is to identify and cull potentially meritless claims and streamline litigation in complex cases involving numerous claimants[.]"3 By putting pressure up front on individual plaintiffs to deliver a threshold of evidence, these...