In re Fox v. Alfini , 432 P.3d 596 ( 2018 )

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ADVANCE SHEET HEADNOTE
December 3, 2018
2018 CO 94
No. 18SA92, In re Fox v. Alfini—Attorney-Client Privilege—Discovery—Client with
Diminished Mental Capacity.
In this original proceeding pursuant to C.A.R. 21, the court reviews the district
court’s order compelling production of a recording of the Petitioner’s initial consultation
with her attorney. The district court determined that the recording was not subject to the
attorney-client privilege because her parents were present during the consultation and their
presence was not required to make the consultation possible. Further, the district court
refused to consider several new arguments that the Petitioner raised in a motion for
reconsideration.
The supreme court issued a rule to show cause and now concludes that the
presence of a third party during an attorney-client communication will ordinarily destroy
the attorney-client privilege unless the third party’s presence was reasonably necessary to
the consultation or another exception applies. Here, because the record supports the district
court’s finding that the Petitioner had not shown that her parents’ presence was reasonably
necessary to facilitate the communication with counsel, the court perceives no abuse of
discretion in the district court’s ruling that the recording at issue was not protected by the
attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse
its discretion in refusing to consider the new arguments that the Petitioner raised in her
motion for reconsideration.
Accordingly, the court discharges the rule to show cause.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2018 CO 94
Supreme Court Case No. 18SA92
Original Proceeding Pursuant to C.A.R. 21
Mesa County District Court Case No. 15CV30797
Honorable Lance Phillip Timbreza, Judge
In Re
Plaintiff:
Kayla Fox
v.
Defendants:
William Alfini, Jr., D.C.; and Brady Chiropractic Group, P.C.
Rule Discharged
en banc
December 3, 2018
Attorneys for Plaintiff:
Leventhal & Puga, P.C.
James Leventhal
Bruce L. Braley
Brian N. Aleinikoff
Benjamin I. Sachs
Denver, Colorado
Attorneys for Defendant William Alfini, Jr., D.C.:
Hershey Decker Drake
C. Todd Drake
Kari M. Hershey
Matthew George
Lone Tree, Colorado
Attorneys for Defendant Brady Chiropractic Group, P.C.:
Messner Reeves LLP
Katherine Otto
Kendra N. Beckwith
Tanner J. Walls
Denver, Colorado
Attorneys for Amicus Curiae The Colorado Trial Lawyers Association:
The Komyatte Law Firm LLC
David P. Mason
Lakewood, Colorado
Lowrey Parady LLC
J. Bennett Lebsack
Denver, Colorado
Attorneys for Amicus Curiae The Colorado Defense Lawyers Association:
Wheeler Trigg O’Donnell LLP
Theresa R. Wardon
Abigail S. Wallach
Kevin D. Homiak
Brian S. Osterman
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE HOOD specially concurs.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS and JUSTICE
BOATRIGHT join in the dissent.
2
¶1 In this original proceeding pursuant to C.A.R. 21, we review the district court’s
order compelling production of a recording of petitioner Kayla Fox’s initial consultation
with her attorney. The district court determined that the recording was not subject to the
attorney-client privilege because her parents were present during the consultation and
their presence was not required to make the consultation possible. Further, the district
court refused to consider several new arguments that Fox raised in a motion for
reconsideration.
¶2 We issued a rule to show cause and now conclude that the presence of a third party
during an attorney-client communication will ordinarily destroy the attorney-client
privilege unless the third party’s presence was reasonably necessary to the consultation
or another exception applies. Here, because the record supports the district court’s
finding that Fox had not shown that her parents’ presence was reasonably necessary to
facilitate the communication with counsel, we perceive no abuse of discretion in that
court’s ruling that the recording at issue was not protected by the attorney-client
privilege.
¶3 We further conclude that, under settled law, the district court did not abuse its
discretion in refusing to consider the new arguments that Fox raised in her motion for
reconsideration.
¶4 Accordingly, we discharge the rule to show cause.
I. Facts and Procedural Background
¶5 Fox, who was then in her early thirties, became seriously ill immediately after
receiving chiropractic treatment from Dr. William Alfini, Jr. at the offices of the Brady
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Chiropractic Group, P.C. in Grand Junction. A massage therapist in the office called Fox’s
mother, reported that Fox had the flu, and told Fox’s mother to come pick up her
daughter. Fox’s parents arrived shortly thereafter. Realizing that their daughter was
gravely ill, they rushed her to the Community Hospital where she received emergency
care and treatment for what turned out to be a stroke.
¶6 At some point thereafter, Fox and her parents contacted attorney James Leventhal
to discuss a possible malpractice action by Fox against Dr. Alfini and the Brady
Chiropractic Group (collectively, “defendants”). Leventhal recorded at least a portion of
this initial consultation in order to make sure that he did not miss anything as he sought
to learn the facts leading to Fox’s stroke and the harm and damages that resulted from it.
Notably, the record reveals no effort by Leventhal to determine before conferring with
Fox and her parents whether Fox’s stroke caused any cognitive deficiencies such that her
parents’ presence was necessary to facilitate the consultation.
¶7 Subsequently, Fox filed a lawsuit against defendants for, among other things,
professional negligence. Discovery ensued, and, during a deposition of Fox’s mother,
defendants learned that Leventhal had recorded his initial consultation with Fox and her
parents. Defendants jointly moved to compel the production of this recording or, in the
alternative, for the court’s in camera review of the recording to determine if any part of
it was discoverable. In their motion, defendants argued that the presence of third parties
“vitiate[d] a claim of attorney-client privilege” and that, therefore, the recording was
discoverable.
4
¶8 Fox opposed defendants’ motion to compel, asserting that she had diminished
mental capacity as a result of her stroke. She thus contended that her parents’ presence
was necessary to facilitate her communications with Leventhal and did not destroy the
attorney-client privilege. In support of this argument, Fox attached a neuropsychological
evaluation performed fifteen months after her stroke and over a year after the
consultation with Leventhal that concluded that she was “likely experiencing ongoing
mild difficulties, weaknesses, and/or impairments with her neuropsychological
functioning.” This evaluation also found “notable,” however, that Fox was able to
maintain her employment as a middle school counselor. Fox also submitted affidavits
from herself and her parents attesting that she believed that she would need her parents’
assistance because she did not feel that she had the mental capacity to make decisions
that were in her best interest regarding any lawsuit.
¶9 In response to these after-the-fact suggestions of Fox’s diminished capacity,
defendants submitted records of Fox’s social media communications after her stroke and
both before and after the recorded consultation took place. In these posts, Fox stated that
(1) her caregivers had told her that it was as if she had never had a stroke, “as great as
[her] nervous system and brain are,” and “it’s as if nothing . . . happened”; (2) “I am
doing well and I will make a full recovery”; and (3) “They told me this morning that they
expect me to make a full recovery and that I am a medical mystery because my stroke
symptoms seem to have disapprared [sic].”
¶10 The district court ultimately concluded, “I do not find [Fox’s] capacity diminished
such that the presence of her parents was necessary to assist in the representation.” The
5
court thus ruled that the attorney-client privilege did not protect the recording and
granted defendants’ request to compel the production of that recording.
¶11 Fox then moved for reconsideration. In this motion, she argued, for the first time,
that the attorney-client privilege attached to the recording because (1) her parents were
prospective clients of Leventhal’s and (2) her parents were her agents and shared
common legal interests with her. She further argued, also for the first time, that the
recording was protected under the work-product doctrine and that defendants had not
demonstrated substantial need to discover that recording.
¶12 The district court ultimately denied Fox’s motion to reconsider, noting that “any
arguments raised could have been raised during the pleading stage or at the hearing.”
¶13 After obtaining a stay so that she could petition this court for relief, Fox filed the
present C.A.R. 21 petition, and we issued a rule to show cause.
II. Analysis
¶14 We begin by discussing our jurisdiction to hear this matter and the standard of
review for discovery orders. We then proceed to review the district court’s findings
concerning the attorney-client privilege, and we conclude that the court did not abuse its
discretion in ordering the discovery of the recording at issue. Finally, we review the
district court’s denial of Fox’s motion for reconsideration, and we conclude that the court
did not abuse its discretion in refusing to consider arguments that Fox had raised for the
first time in her motion for reconsideration.
6
A. Original Jurisdiction and Standard of Review
¶15 Exercise of our original jurisdiction under C.A.R. 21 is within our sole discretion.
Fognani v. Young, 115 P.3d 1268, 1271 (Colo. 2005). An original proceeding under
C.A.R. 21 is an extraordinary remedy that is limited in purpose and availability. Wesp v.
Everson, 33 P.3d 191, 194 (Colo. 2001). Although discovery orders are generally
interlocutory in nature and thus reviewable only on appeal, we have exercised our
original jurisdiction to review whether a district court abused its discretion in
circumstances in which a remedy on appeal would be inadequate. Gateway Logistics
Inc. v. Smay, 2013 CO 25, ¶ 11, 302 P.3d 235, 238.
¶16 Here, the district court ordered Fox to produce a recording that she claims is
protected by the attorney-client privilege. Damage to Fox from the erroneous production
of this recording could not be cured by appeal because the damage would occur upon
disclosure to defendants regardless of the outcome of an appeal from a final judgment.
Id. at ¶ 12, 302 P.3d at 239. We therefore conclude that the exercise of our original
jurisdiction is appropriate in this case.
¶17 We review a district court’s discovery orders for an abuse of discretion. Id. at ¶ 13,
302 P.3d at 239. A district court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair. Id.
B. Attorney-Client Privilege
¶18 Fox contends that the district court abused its discretion in finding that the
recording at issue was within the scope of discovery permitted by C.R.C.P. 26 because, in
Fox’s view, the recording is protected by the attorney-client privilege.
7
¶19 The attorney-client privilege “is codified in Colorado by statute and operates to
protect communications between attorney and client relating to legal advice.” Wesp,
33 P.3d at 196. Specifically, section 13-90-107(1)(b), C.R.S. (2018), provides, in pertinent
part, “An attorney shall not be examined without the consent of his client as to any
communication made by the client to him or his advice given thereon in the course of
professional employment . . . .” The claimant of the privilege has the burden of
establishing it, and the burden of establishing a waiver is on the party seeking to
overcome the claim of privilege. See Black v. Sw. Water Conservation Dist., 74 P.3d 462, 467
(Colo. App. 2003).
¶20 The attorney-client privilege is not without exception. As pertinent here, we have
opined that the presence of a third party during attorney-client communications
generally destroys any privilege that might otherwise attach because, “[i]f a client
communication is made to an attorney in the presence of a third party, then the
communication is ordinarily not considered confidential.” Wesp, 33 P.3d at 197; see also
D.A.S. v. People, 863 P.2d 291, 295 (Colo. 1993) (noting that “the presence of a third person
ordinarily destroys the confidentiality required to assert the attorney-client privilege”).
¶21 If, however, the presence of a third person is necessary to make the conference
possible, then that person’s presence may not destroy the attorney-client privilege.
D.A.S., 863 P.2d at 295; see also Colo. RPC 1.14 cmt. 3 (“The client may wish to have family
members or other persons participate in discussions with the lawyer. When necessary to
assist in the representation, the presence of such persons generally does not affect the
applicability of the attorney-client evidentiary privilege.”) (emphasis added). This is
8
because, in such circumstances, the third person’s presence does not necessarily negate a
finding of intended confidentiality. D.A.S., 863 P.2d at 295.
¶22 As the foregoing indicates, to preserve a claim of privilege in cases involving
third-party involvement in attorney-client communications, we have required both that
the client have an expectation of confidentiality in the communication and that the third
party’s presence be necessary to facilitate that communication. See, e.g., id.; see also Wesp,
33 P.3d at 197 (noting that confidentiality is one of the elements “that must be shown in
order for the attorney-client privilege to attach” and that “a communication made in the
presence of a third party will not ordinarily receive the protection of the attorney-client
privilege”).1
¶23 Consistent with our above-described case law, Fox does not contend that an
expectation of confidentiality alone is sufficient to establish the existence of the
attorney-client privilege. Rather, she states that “the essential question is whether [her]
parents’ presence was necessary ‘to assist in the representation.’”
1 Our case law is thus distinguishable from that of jurisdictions in which the existence of
the privilege has been deemed to turn not on the necessity of a third party’s presence but
on the issue of confidentiality or the reasonable expectation thereof. See, e.g., Kevlik v.
Goldstein, 724 F.2d 844, 849 (1st Cir. 1984) (“The guiding principle in determining whether
or not there exists a privileged attorney-client relationship is the intent of the client. The
key question in determining the existence of a privileged communication is ‘whether the
client reasonably understood the conference to be confidential.’”) (quoting Charles T.
McCormick, McCormick’s Handbook of the Law of Evidence § 91, at 189 (2d ed. 1972)); In re
Grand Jury Subpoena, 201 F. Supp. 3d 767, 775 (W.D.N.C. 2016) (noting that the client’s
intent with respect to confidentiality is determinative of the existence of the privilege).
9
¶24 As to this issue, the applicable standard governing necessity appears to be an open
question in Colorado. Fox contends that necessity should be determined based on
whether the lawyer at issue had a subjectively reasonable belief that the third party’s
presence was necessary to the consultation. Other authority, in contrast, suggests that
necessity is to be determined based on an objective standard.
¶25 For example, section 70 of the Restatement (Third) of the Law Governing Lawyers
provides that privileged persons include agents of either the client or the lawyer “who
facilitate communications between them.” Restatement (Third) of the Law Governing
Lawyers § 70 (2000). Comment f to that section then explains, in pertinent part, “A person
is a confidential agent for communication if the person’s participation is reasonably
necessary to facilitate the client’s communication with a lawyer . . . .” Id. at cmt. f.
¶26 Many courts that have addressed this issue likewise appear to have applied an
objective standard for determining whether a third party’s presence was necessary to
facilitate an attorney-client communication. See, e.g., Egiazaryan v. Zalmayev, 290 F.R.D.
421, 431 (S.D.N.Y. 2013) (concluding that a client waived attorney-client privilege when
he shared documents with a public relations firm retained by his attorneys because the
client had failed to show that the public relations firm’s participation was “‘nearly
indispensable’ or otherwise necessary to facilitate his communications with his
attorneys.”); State v. Shire, 850 S.W.2d 923, 931 (Mo. Ct. App. 1993) (“The presence of a
third person . . . such as a relative or friend of the client, who is not essential to the
transmission of information or whose presence is not reasonably necessary for the
protection of the client’s interest, will vitiate the privilege.”); Am. Zurich Ins. Co. v. Mont.
10
Thirteenth Judicial Dist. Court, 280 P.3d 240, 247 (Mont. 2012) (“Disclosure to third parties
waives attorney-client privilege unless disclosure is necessary for the client to obtain
informed legal advice.”).
¶27 Applying these principles, courts have found that a third party’s presence was
reasonably necessary when, for example, (1) a prisoner who could not write in English
had relied on another person to assist him in writing a letter to his attorney, State v.
Loponio, 88 A. 1045, 1047–48 (N.J. 1913), and (2) an elderly woman was accompanied by
her daughter to a meeting with her attorney and the woman depended on her daughter
to put her “sufficiently at ease to communicate effectively with counsel” about “what was
probably the most traumatic experience of her life,” Stroh v. Gen. Motors Corp.,
623 N.Y.S.2d 873, 874 (N.Y. App. Div. 1995) (noting that communications to counsel
through one serving as an agent of the client in order to facilitate such communications
are generally privileged).
¶28 In contrast, we have found no applicable cases—and Fox cites none—in which
necessity was based solely on an attorney’s subjective view as to whether a third person’s
presence was necessary to facilitate an attorney-client communication.
¶29 We are persuaded by those authorities that have adopted an objective standard of
necessity and conclude that the presence of a third party during an attorney-client
communication will ordinarily destroy the privilege unless the third party’s presence was
reasonably necessary to the consultation or another exception applies. In our view, such
a standard properly protects the attorney-client privilege, avoids the tactical
gamesmanship that could result were third parties to be permitted to participate in
11
attorney-client communications without clear and consistent limitations,2 and allows
those who truly need help in communicating with their attorneys to employ such
assistance without sacrificing the important protections that the attorney-client privilege
affords.
¶30 In reaching this conclusion, we are not persuaded otherwise by Fox’s reliance on
Colo. RPC 1.14(b). That rule provides, in part, that “the lawyer may take reasonably
necessary protective action, including consulting with individuals . . . that have the
ability to take action to protect the client” when the lawyer “reasonably believes that the
client has diminished capacity.” We perceive nothing in this rule that extends the
attorney-client privilege to communications involving third persons merely based on the
attorney’s subjective belief that the third person’s presence was necessary to facilitate a
consultation. To the contrary, when read as a whole, Colo. RPC 1.14 merely allows an
attorney who is representing a client with diminished capacity to take reasonable action
(including seeking the appointment of a guardian ad litem, conservator, or guardian) to
protect the client’s interests and, as part of such action, to reveal confidential information
to the extent reasonably necessary to protect those interests. See Colo. RPC 1.14 (b)–(c).
2 Examples of such gamesmanship might include an attorney’s gathering a client and
certain witnesses together to get everyone’s story straight or convening a group meeting
to try to insulate otherwise nonprivileged and perhaps unhelpful information provided
by a third party. In noting these examples, we do not mean to suggest that either
Leventhal, Fox, or Fox’s parents engaged in such gamesmanship here.
12
¶31 The question thus becomes whether Fox has demonstrated that her parents’
presence was reasonably necessary to the consultation that Leventhal recorded.
Addressing this question directly, the district court found that Fox had not shown that
her mental capacity was “diminished such that the presence of her parents was necessary
to assist in the representation.” In so concluding, the court deemed persuasive
defendants’ evidence demonstrating that Fox had made numerous assertions on social
media prior to the meeting with Leventhal indicating that her symptoms had
“disapprared [sic]” and that “it’s as if nothing happened . . . .” The district court thus
concluded that Fox’s parents’ presence during the consultation destroyed any privilege
that would otherwise have attached to a recording of that consultation.
¶32 Because these findings were amply supported by the evidence in the record, we
cannot say that the court abused its discretion in concluding that Fox’s parents’ presence
undermined an assertion of privilege, notwithstanding the fact that Fox had introduced
evidence to the contrary. It was for the district court to make findings on the conflicting
evidence, the record here (including Fox’s own conflicting statements) was sufficient to
allow the court to do so and supports its findings, and, in such circumstances, we are
hesitant to interfere with the court’s proper exercise of its discretion in ruling without an
evidentiary hearing. See People in Interest of A.J.L., 243 P.3d 244, 250 (Colo. 2010) (noting
that we will set aside a district court’s factual findings only when those findings are so
clearly erroneous as to find no support in the record); People in Interest of M.S.H., 656 P.2d
1294, 1297 (Colo. 1983) (“Though the record presents conflicting evidence on some
matters, it is the trial court’s province to judge the credibility of the witnesses, the
13
sufficiency, probative effect and weight of the evidence, and the inferences and
conclusions to be drawn from the evidence.”).
¶33 In reaching this conclusion, we are not unmindful of the necessity in some
circumstances for clients or prospective clients to have third parties assist them during
attorney-client consultations. Nor should our ruling be read to discourage such
assistance when it is necessary. We merely conclude that, on the facts of this case, the
district court did not err when it found that Fox had not shown the requisite necessity to
preserve her claim of privilege.
C. Arguments Raised on Reconsideration
¶34 Fox next contends that the district court abused its discretion in declining to
address her arguments, made for the first time in a motion for reconsideration, that (1) her
parents’ presence during the initial conference with Leventhal did not destroy the
attorney-client privilege because they were prospective clients of Leventhal’s, were
acting as her agents, and shared a common interest with her in the lawsuit and (2) the
recording was protected under the work-product doctrine and defendants had not
demonstrated a substantial need to discover that recording.
¶35 C.R.C.P. 121, § 1-15(11) provides, in pertinent part:
Motions to reconsider interlocutory orders of the court, meaning motions
to reconsider other than those governed by C.R.C.P. 59 or 60, are
disfavored. A party moving to reconsider must show more than a
disagreement with the court’s decision. Such a motion must allege a
manifest error of fact or law that clearly mandates a different result or other
circumstance resulting in manifest injustice.
14
¶36 Colorado cases addressing this rule have consistently concluded that a district
court generally does not abuse its discretion by refusing to consider new arguments and
evidence submitted in motions to reconsider. See, e.g., Hice v. Lott, 223 P.3d 139, 149 (Colo.
App. 2009); Bowlen v. FDIC, 815 P.2d 1013, 1015 (Colo. App. 1991).
¶37 Moreover, Fox has not explained why she could not have raised these arguments
before the district court granted defendants’ motion to compel the production of the
recording. Nor has she demonstrated that upholding the district court’s ruling will result
in manifest injustice, particularly given that her parents testified in their depositions,
without objection on the ground of privilege, to the conversation with Leventhal and to
the facts comprising the substance of the recording at issue. See Graven v. Vail Assocs.,
Inc., 888 P.2d 310, 316 (Colo. App. 1994) (noting that the plaintiff had neither asserted nor
established that the factual information contained in later-filed affidavits was not known
by or available to him until after the court had entered its order granting summary
judgment, and therefore concluding that the trial court did not abuse its discretion in
denying the plaintiff’s motion to reconsider, which was based on such new information),
rev’d on other grounds, 909 P.2d 514 (Colo. 1995); see also Sousaris v. Miller, 993 P.2d 539, 547
(Haw. 2000) (“As this court has often stated, ‘[t]he purpose of a motion for
reconsideration is to allow the parties to present new evidence and/or arguments that
could not have been presented during the earlier adjudicated motion.’ Reconsideration
is not a device to relitigate old matters or to raise arguments or evidence that could and
should have been brought during the earlier proceeding.”) (quoting First Ins. Co. of Haw.,
Ltd. v. Lawrence, 881 P.2d 489, 504 (Haw. 1994)).
15
¶38 Accordingly, we cannot say that the district court abused its discretion in declining
to consider the arguments that Fox raised for the first time in her motion for
reconsideration, and we do not reach the merits of those arguments.
III. Conclusion
¶39 For these reasons, we conclude that the district court did not abuse its discretion
in (1) determining that the recording of the attorney-client conference at issue is not
protected by the attorney-client privilege, given the presence of third parties who were
not reasonably necessary to facilitate the communication, and (2) declining to consider
the new arguments that Fox raised for the first time in her motion for reconsideration.
¶40 Accordingly, we discharge the rule to show cause.
JUSTICE HOOD specially concurs.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS and JUSTICE
BOATRIGHT join in the dissent.
16
JUSTICE HOOD, specially concurring.
¶41 I agree with the majority’s opinion, and therefore I join it in full. I do so reluctantly,
however, because I worry about the chilling effect the court’s opinion today might have
on some attorneys or parties who legitimately perceive a need to have third parties
present at an initial consultation. They will now almost certainly refrain from inviting
people like Kayla Fox’s parents for fear that a court might later deem their presence at
the consultation to have been objectively unnecessary to facilitate communication
between the lawyer and prospective client. After all, privilege could be forfeited even
when that prospective client is a loved one thirty-five days out from a stroke that might
have caused brain damage. Most significantly, I worry about the potential for adversaries
to obtain the mental impressions of counsel, however incipient they may be, if a third
party was present for the consultation. So, what source of meaningful protection, if any,
might someone like Kayla Fox have after our opinion today?
¶42 The work product doctrine strikes me as the most logical refuge for parties on facts
like these. Unfortunately for Ms. Fox, invocation of that doctrine came too late. (Of
course, disclosure in this instance might not matter much. While no judicial officer has
listened to the tape, some of what occurred during the initial consultation has already
been revealed, without objection or calamity, during depositions.) Still, it’s worth
emphasizing that a recording of, or notes about, an initial consultation would typically
constitute (1) “tangible things,” (2) “prepared in anticipation of litigation,” and (3) “by or
for another party or by or for that other party’s representative” and, thus, are discoverable
1
“only upon a showing that the party seeking discovery has substantial need of the
materials . . . and is unable without undue hardship to obtain the substantial equivalent
of the materials by other means.” C.R.C.P. 26(b)(3); see generally 8 Charles Alan Wright et
al., Federal Practice and Procedure § 2024 (3d ed. 2018) (identifying these elements of work
product under the corresponding federal rule).
¶43 We have noted that a party “demonstrates substantial need by establishing that
the material requested contains critical factual information necessary to prove the party’s
case.” Cardenas v. Jerath, 180 P.3d 415, 422 (Colo. 2008). And “[a] party is unable without
undue hardship to obtain the substantial equivalent of the materials by other means when
the requested materials are not available by any other source.” Id. So, the substantial
need hurdle can offer the Kayla Foxes of the world some protection.
¶44 Perhaps more importantly, the work product doctrine further provides that
certain materials prepared in anticipation of litigation or for trial may never be
discovered: “[T]he court shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative of a party
concerning the litigation.” C.R.C.P. 26(b)(3); Cardenas, 180 P.3d at 423. Therefore, on facts
like those here, timely assertion of work product immunity should enable the party
resisting discovery to seek redaction of an attorney’s mental impressions.
¶45 And, unlike the attorney-client privilege, voluntary disclosure of information to
third parties does not ordinarily constitute a waiver of exemption from discovery under
the work product doctrine, unless such disclosure is to an adversary in the litigation. See,
2
e.g., Blattman v. Scaramellino, 891 F.3d 1, 5 (1st Cir. 2018) (“[D]isclosure of work product
to a third party does not necessarily waive the protection; ‘only disclosing material in a
way inconsistent with keeping it from an adversary waives work product protection.’”
(quoting United States v. Mass. Inst. of Tech., 129 F.3d 681, 687 (1st Cir. 1997))); United States
v. Deloitte LLP, 610 F.3d 129, 140 (D.C. Cir. 2010) (“[D]isclosing work product to a third
party can waive protection if ‘such disclosure, under the circumstances, is inconsistent
with the maintenance of secrecy from the disclosing party’s adversary. . . .’” (quoting
Rockwell Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d 598, 605 (D.C. Cir. 2001))); Wright,
supra, § 2024 (noting that this is the majority rule because privilege is based on the
confidential nature of the communication, which arguably vanishes if the evidence is
revealed to any third party, while work product immunity protects the evidence from
discovery by an opponent and concluding that cases to the contrary simply conflate work
product immunity and attorney-client privilege); cf. 23 Sheila K. Hyatt, Colorado Practice
Series, Evidence Law § 501:4 (2018) (“The work product doctrine . . . is not so much a
privilege as it is an exemption for material prepared by or for the attorney of a party in
anticipation of litigation. Its purpose is to protect the attorney’s privacy in the course of
preparing a case for trial. It does not necessarily involve confidential communications.”).
¶46 Work product materials enjoy a qualified immunity from discovery because “the
general policy against invading the privacy of an attorney’s course of preparation is so
well recognized and so essential to the orderly working of our system of legal procedure
that a burden rests on the one who would invade that privacy to establish adequate
3
reasons to justify production.” Nat’l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d
1044, 1047 (Colo. 1986) (quoting Hickman v. Taylor, 329 U.S. 495 (1947)). Respondents
overcame that burden here, perhaps primarily because of a procedural quirk. But the
work product doctrine should still provide meaningful protection in other cases.
¶47 With these thoughts in mind, I respectfully concur.
4
JUSTICE SAMOUR, dissenting.
¶48 The majority’s decision to discharge the rule to show cause is tethered to the
district court’s factual finding that Fox’s parents did not need to be present during the
consultation with Leventhal. But the district court did not hold an evidentiary hearing
to resolve the conflicts in the exhibits submitted with the parties’ briefs. Instead, it made
credibility assessments, resolved evidentiary conflicts, and reached factual findings
based entirely on the paper record. Because I believe the district court erred in failing to
hold an evidentiary hearing, I respectfully dissent.
¶49 The district court found that Fox was fully able to communicate, relate her
symptoms, and describe her chiropractic adjustment in detail when she met with
Leventhal and, therefore, her mental capacity was not so diminished that her parents’
presence was necessary to assist during the consultation. In making this factual
determination, the district court considered what are best characterized as the parties’
offers of proof and concluded that defendants’ proffer was more persuasive than Fox’s.
Respectfully, I cannot endorse this approach.
¶50 Without the benefit of live testimony, the district court deemed the affidavits
submitted by Fox and her parents unconvincing. In those affidavits, Fox and her parents
declared, under oath and subject to penalty of perjury, that:
• the stroke affected nearly every aspect of Fox’s life, including her ability to live
independently for a significant period of time;
• Fox’s ability to concentrate, remember, and understand complex issues was
significantly impaired when she met with Leventhal;
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• during the timeframe of the consultation with Leventhal, Fox needed her
parents to help her “understand a number of important issues in [her] life”;
• Fox’s parents spent significant time with Fox after the stroke to make sure she
was doing well physically and “understood everything going on around her
and was making well-reasoned decisions”; and
• Fox’s parents attended the meeting with Leventhal because Fox and her
parents realized that she needed assistance in understanding some of the
complex issues that would come up during the meeting and because she did
not feel she had the mental capacity to make decisions that were in her best
interest concerning this lawsuit.
¶51 Not only did the district court dismiss these attestations, it ignored the report
regarding Fox’s neuropsychological evaluation. That report observed that tests
conducted on Fox revealed, among other things:
• difficulties and impairments with aspects of her ability to maintain her
attention and to process information;
• variability in her memory and ability to learn tasks;
• an elevated level of psychological distress, which included experiencing
symptoms associated with depression and anxiety; and
• likely ongoing impairments with neuropsychological functioning.
Notably, the report mentioned that, since the evaluation had occurred approximately
fifteen months after the stroke, it was likely that Fox had already experienced the majority
of the anticipated recovery. In other words, had the tests been administered shortly after
the stroke and before the consultation with Leventhal, the results may well have reflected
greater neuropsychological impairment.
¶52 On the other side of the ledger were Facebook messages sent from Fox’s account.
These messages, which were sent before the consultation with Leventhal, indicated that:
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(1) Fox was “doing well” and expected to make “a full recovery”; and (2) her caregivers
had told her that her symptoms had disappeared, that she was “a medical mystery,” and
that it was “as if nothing . . . happened” to her. The district court took these comments
at face value and accorded them great weight. But the Facebook remarks, which were
not made under oath, were contradicted by Fox’s and her parents’ sworn statements, and
were at least undermined by the neuropsychological report. Yet the district court
resolved the conflicts in the exhibits—and in the process necessarily made credibility
assessments—on a cold record. It is now axiomatic that “[a] cold record is a poor
substitute for live testimony.” People v. Scott, 600 P.2d 68, 69 (Colo. 1979). It is for that
reason that “[f]actfinding is the basic responsibility of district courts, rather than appellate
courts.” Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) (quoting DeMarco v. United
States, 415 U.S. 449, 450 n. (1974)).
¶53 The majority cites People in Interest of M.S.H. and People in Interest of A.J.L.—the
former for the proposition that it is “the trial court’s province to judge the credibility of
the witnesses,” 656 P.2d 1294, 1297 (Colo. 1983), and the latter for the proposition that it
is for the district court to resolve conflicts in the evidence, 243 P.3d 244, 250 (Colo. 2010).
See maj. op. ¶ 32. I wholeheartedly agree with both principles. But the district court did
not, and could not, properly perform either function because it failed to hold an
evidentiary hearing. How could the district court properly assess the credibility of the
witnesses without observing them and receiving their live testimony? And how could
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the district court properly resolve the conflicts in the exhibits without properly assessing
the credibility of the witnesses?
¶54 Invoking a basic tenet of appellate jurisprudence, the majority points out that we
do not set aside a district court’s factual findings unless we determine that those findings
are so clearly erroneous as to find no support in the record. However, the very reason
we generally employ such a deferential standard in reviewing a district court’s factual
findings is that the district court is in a unique position to assess the credibility of live
witnesses, and therefore, to resolve conflicting evidence and determine the historical
facts. People v. Trujillo, 784 P.2d 788, 792 (Colo. 1990), abrogated on other grounds, People v.
Matheny, 46 P.3d 453 (Colo. 2002). As we have explained:
The sanctity of trial court findings is derived from the recognition that the
trial judge’s presence during the presentation of testimonial evidence
provides an unparalleled opportunity to determine the credibility of the
witnesses and the weight to be afforded the evidence which is before the
court. [Where] [t]he testimony of the parties [is] contradictory on almost
every material point in controversy[,] [i]t is impossible to determine from
the bare pages of the record whose testimony should be given credit
relating to the facts. In such cases, the difficult task of finding those facts is
best left to the trial court.
M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo. 1994) (quoting Page v. Clark, 592
P.2d 792, 796 (Colo. 1979)) (citation omitted).
¶55 Here, the factual findings deserve no deference because we are in the same
position to do what the district court did. The district court did not observe, much less
evaluate, the demeanor or the body language of any live witnesses—indeed, there were
no live witnesses. By electing to make credibility assessments, resolve conflicts in the
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exhibits, and reach factual determinations on a cold record, the district court nullified its
unique position to make factual findings and placed itself in the disadvantaged shoes of
a reviewing court. The district court then proceeded to do precisely what a reviewing
court abstains from doing because of the real danger of engaging in fact-finding on a cold
record.
¶56 In the end, while the majority concludes that there is ample evidence in the record
to support the district court’s factual findings, it overlooks that there is equally ample
evidence in the record to support contrary factual findings. Given the conflicts in the
exhibits, the only way to properly settle the parties’ factual dispute was to hold an
evidentiary hearing.
¶57 Because the district court made credibility assessments, resolved the conflicts in
the exhibits, and reached factual findings based entirely on the paper record without
holding an evidentiary hearing, I respectfully dissent. The district court necessarily
engaged in speculation to determine what to believe. In my view, this was error. I would
make the rule to show cause absolute and remand for an evidentiary hearing in
accordance with the legal test endorsed by the majority.
I am authorized to state that CHIEF JUSTICE COATS and JUSTICE BOATRIGHT
join in this dissent.
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