Background
Arrowhead Colorado Metropolitan District, a quasi-municipal corporation, sought to condemn easements over two private roads owned by Roxborough Park Foundation in order to access the “Homestead Parcel” in Roxborough Park, Douglas County — a parcel owned by Arrowhead’s related entity, Arrowhead Colorado Propco, LLC. Arrowhead filed a condemnation petition and asserted its right to immediate possession of the easements under Colorado’s eminent domain statutes. An immediate possession hearing was set for January 30, 2026.
On November 18, 2025, the Foundation moved for limited and expedited discovery ahead of the immediate possession hearing, arguing that discovery was essential to its preparation. The trial court denied the motion, reasoning that neither the eminent domain statutes (sections 38-1-101 to -122, C.R.S.) nor the Colorado Rules of Civil Procedure permitted prehearing discovery. Specifically, the court concluded that condemnation proceedings could never be deemed “at issue” under C.R.C.P. 16(b)(1) because the eminent domain statutes do not require responsive pleadings, and that discovery was therefore unavailable. The Foundation then sought extraordinary relief in the Colorado Supreme Court under C.A.R. 21.
The Supreme Court issued an order to show cause and exercised its original jurisdiction, finding that the ordinary appellate process would be inadequate because Arrowhead could take immediate possession of the property and potentially cause irreversible damage before any appeal could be resolved.
The Court’s Holding
The Colorado Supreme Court, in an opinion by Justice Blanco, held that C.R.C.P. 26(d), C.R.C.P. 26(b)(2), and C.R.C.P. 16(b)(1) each independently grant trial courts discretion to authorize discovery in condemnation proceedings, including before an immediate possession hearing. The court made the order to show cause absolute and remanded for the trial court to exercise that discretion and rule on the Foundation’s discovery motion on its merits.
The court agreed with the trial court that the eminent domain statutes (sections 38-1-101 to -122) make no explicit provision for discovery, but found this inconclusive — the statutes are simply silent, and section 38-1-121(3) expressly states that nothing in the eminent domain statutes should be construed as limiting the discovery rights of parties to eminent domain proceedings. Turning to the Rules, the court found that Rule 26(d)’s introductory clause — “[e]xcept when authorized by these Rules, by order, or by agreement of the parties” — expressly permits a trial court to authorize discovery before a case management order has been served. Rule 26(b)(2) separately grants trial courts discretion to limit or authorize discovery for good cause shown.
The court also rejected the trial court’s reading of Rule 16(b)(1). Although the rule’s first clause conditions “at issue” status on service of all parties and filing of all required pleadings, the rule contains a second, disjunctive clause: “or at such other time as the court may direct.” Under basic rules of statutory construction, the word “or” is presumptive disjunctive, providing an independent alternative path. By reading this language out of the rule, the trial court rendered it superfluous and erroneously concluded it lacked authority to order discovery.
Key Takeaways
- Trial courts have discretion under C.R.C.P. 26(d) to authorize discovery before a case management order is served, because the rule’s opening clause expressly permits court-ordered exceptions to the default timing restriction.
- C.R.C.P. 16(b)(1)’s “at issue” requirement does not categorically preclude discovery in condemnation proceedings; the rule’s “or at such other time as the court may direct” clause gives courts an independent basis to deem a case at issue and authorize discovery whenever appropriate.
- Colorado’s eminent domain statutes are silent on discovery and do not foreclose it; section 38-1-121(3) affirmatively signals that parties in eminent domain proceedings retain otherwise available discovery rights.
- The decision does not guarantee the Foundation will obtain discovery — it only requires the trial court to exercise its discretion and decide the motion on its merits, applying a good cause analysis under C.R.C.P. 26(b)(2).
Why It Matters
This decision resolves a procedural gap that Colorado trial courts had encountered in condemnation cases: whether the absence of responsive pleadings — a structural feature of eminent domain proceedings — effectively blocked prehearing discovery. By clarifying that courts retain discretionary authority under the Rules regardless of whether pleadings have been filed, the opinion ensures that landowners facing immediate possession orders have a meaningful opportunity to seek discovery needed to contest the taking before losing access to their property.
For practitioners, the ruling underscores the importance of the prefatory language of C.R.C.P. 26(d) and the “or at such other time as the court may direct” clause in C.R.C.P. 16(b)(1) — provisions that trial courts had treated as ministerial but that the Supreme Court now makes clear carry independent operative force. Condemnors and landowners alike should expect courts to evaluate prehearing discovery requests under a good cause standard rather than treating them as categorically unavailable.