Because C.R.C.P. 60(b)(2) is similar to its federal counterpart, Fed.R.Civ.P. 60(b)(3), case law interpreting the federal rule is persuasive in analysis of the Colorado rule. See Forbes v. Goldenhersh, 899 P.2d 246, 249 (Colo.App. 1994)(C.R.C.P.56); see also Aspen Skiing Co. v. Peer, 804 P.2d 166, 174 (Colo. 1991) (relying on federal decisions in interpreting C.R.C.P. 60(b)(2)). Discovery violations can provide grounds for relief from judgment.
"first, the applicant must establish that the evidence could not have been discovered by the exercise of reasonable diligence and produced at the first trial; second, it must be shown that the evidence was material to an issue in the first trial; and third, the applicant must establish that the evidence, if admitted, would probably change the result of the first trial." Aspen Skiing Co. v. Peer, 804 P.2d 166, 172 (Colo. 1991); see People v. Distel, 759 P.2d 654, 660 (Colo. 1988); People in the Interest of P.N., 663 P.2d 253, 256 (Colo.
1987)); see Southeastern Colo. Water Conservancy Dist. v. O'Neill, 817 P.2d 500, 506 (Colo. 1991); Aspen Skiing Co. v. Peer, 804 P.2d 166, 172 (Colo. 1991); Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1115 (Colo. 1986).
¶ 67 A disclosure violation may provide grounds for post-trial relief, but “the challenged behavior must substantially have interfered with the aggrieved party's ability fully and fairly to prepare for and proceed at trial.” Id. (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 924 (1st Cir.1988) ); see alsoAspen Skiing Co. v. Peer, 804 P.2d 166, 174 (Colo.1991) (relying on federal decisions to interpret C.R.C.P. 60(b) ). ¶ 68 Under C.R.C.P. 26(a)(1), “all parties must make mandatory, automatic disclosure of certain key information to their opponents early in the handling of the case and without request by the opponent.”
When considering this basis for seeking relief from a judgment, a court "must be mindful that there is a critical difference between perjury and the mere presence of factual conflicts or deficiencies in evidence." Aspen Skiing Co. v. Peer, 804 P.2d 166, 174 (Colo. 1991). In Aspen Skiing Co., the supreme court observed that inconsistencies, contradictions, lapses of memory, and unexplained voids in the evidence frequently accompany hotly contested trials.
¶ 8 We review a trial court's order for a new trial for an abuse of discretion. Aspen Skiing Co. v. Peer, 804 P.2d 166, 172 (Colo. 1991). A trial court abuses its discretion when its ruling is "manifestly arbitrary, unreasonable, or unfair," or when it misapplies the law.
Diaz v. Methodist Hosp., 46 F.3d 492, 497 (5th Cir.1995) ( “If unequivocal evidence establishes that a party willfully perjured himself, and thereby prevented the opposition from fully and fairly presenting its case, use of Rule 60(b)(3) to grant the innocent party a new trial would be a proper response.”); Tas Int'l Travel Serv., Inc. v. Pan Am. World Airways, Inc., 96 F.R.D. 205, 208 (S.D.N.Y.1982) (“When a final judgment is attacked on grounds that it was procured by false testimony ... the better course is to resolve this conflict in favor of assuring the fairness and integrity of judgments[.]”).Aspen Skiing Co. v. Peer, 804 P.2d 166, 174 (Colo.1991).Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 134 (1st Cir.2005).
. Aspen Skiing Co. v. Peer, 804 P.2d 166, 174 (Colo.1991).
By this emphasis, however, we do not mean to suggest that all imaginable types of terrain changes located within a ski run will always fall within the statutory definition of "variations in steepness or terrain" that are "inherent dangers and risks of skiing." During both the legislative debates preceding adoption of the 1990 amendments and the briefing and oral argument in the present case, much discussion centered on the case of Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991). In Peer, the plaintiff was injured after encountering a drop of four or five feet created by the intersection of a service road with the trail on which he was skiing.
In the context of newly discovered evidence, however, our supreme court has said that the "due diligence" requirement is satisfied when a party has made "reasonable efforts" to discover the evidence. Aspen Skiing Co. v. Peer , 804 P.2d 166, 173 (Colo. 1991).