Legal Memorandum: Allowing hearsay testimony, disregarding declarant availability

Issue: Whether an out-of-court statement is admissible regardless of the witnesses’ availability?

Colorado Rule 37 discusses the court’s authority to impose sanctions on a party for failing to properly respond to discovery requests.

(a)                Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows:

(1)               Appropriate Court. An application for an order to a party or to a person who is not a party shall be made to the court in which the action is pending.

(2)        Motion.

(A)       If a party fails to make a disclosure required by C.R.C.P. 26(a), any other party may move to compel disclosure and for appropriate sanctions. The motion shall be accompanied by a certification that the movant in good faith has conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.

(B)       If a deponent fails to answer a question propounded or submitted pursuant to C.R.C.P. Rules 30 or 31, or a corporation or other entity fails to make a designation pursuant to C.R.C.P. Rules 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted pursuant to C.R.C.P. 33, or if a party, in response to a request for inspection submitted pursuant to C.R.C.P. 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as […]