Office of
Administrative Courts

OBJECTIONS TO DOCUMENTARY EVIDENCE BASED ON LATE SUBMISSION AND UNFAIR SURPRISE

             Administrative law judges hearing workers’ compensation cases frequently encounter objections to documentary evidence offered under § 8-43-210.  Parties may object that such evidence was not timely exchanged with the opposing party pursuant to applicable rules of procedure, or because the evidence was so recently obtained that admission of the evidence presents a risk of unfair surprise to the opposing party.

             When ruling on the admissibility of documentary evidence and fashioning relief, if appropriate, a judge should consider the following factors together with any other relevant law or facts:

(1)       The requirements of any applicable statute or rule pertaining to the exchange or admission of the documentary evidence;

(2)            Whether the proponent of the evidence used due diligence to obtain the evidence in a timely fashion prior to the hearing, and whether the party complied with, attempted to comply with or was prevented from complying with any applicable rules or procedures pertaining to disclosure of documentary evidence to the opposing party;

(3)            Disclosure of documentary exhibits to the opposing party at least twenty days prior to hearing shall presumptively constitute reasonable diligence in obtaining and disclosing evidence;

(4)            Whether the evidence has the potential to be outcome determinative;

(5)       The potential cost and inconvenience to the opposing party if the evidence is admitted;

(6)       If the evidence is admitted, what additional proceedings, if any, should be afforded to protect the opposing party’s right to confront adverse evidence and present evidence and argument in support of its position.

            When ruling on this type of objection the judge typically enjoys wide discretion; however, the judge should orally or in writing, as the circumstances dictate, state the factors considered and the basis of the ruling.

            This directive does not obviate a judge's authority under §8-43-207(1)(e), C.R.S., to impose sanctions for willful failure to comply with permitted discovery.

Effective 1/1/06:  Posted 01/03/05