Chapter 10 - § 10.6 • INVOKING AND CHALLENGING THE ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE

• Jurisdiction: Colorado

§ 10.6 • INVOKING AND CHALLENGING THE ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE

Parties often request information in discovery that may implicate the attorney-client privilege or its waiver. State and federal courts have a variety of procedures for doing so and layers of rules that litigants must follow.

§ 10.6.1—Standing to Assert the Attorney-Client Privilege

The person asserting the attorney-client privilege must have standing to sue. In federal court, "The doctrine of standing 'is an essential and unchanging part of the case-or-controversy requirement of Article III.'"

➤ Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

To satisfy the federal standing requirement, "a party must establish three elements: (1) injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) likelihood that the injury will be redressed by a favorable decision."

➤ Wilson v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 593 (10th Cir. 1996).

If an attorney-client privilege exists between the party interposing the privilege objection, that party has standing.

➤ Intervenor v. United States, 144 F.3d 653, 658 (10th Cir. 1998) (citations omitted).

Therefore, a corporate officer "has no power to assert the attorney-client privilege except as to confidential communications with [the corporation's attorneys] in his individual capacity."

➤ United States v. Johnston, 146 F.3d 785, 794-95 (10th Cir. 1998) ("The defendant argued that the intercepted conversations were privileged attorney-client communications simply because they involved an attorney. However, 'the mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney-client privilege.'").

§ 10.6.2—Objections to Discovery Based on Attorney-Client Privilege

Not every communication between client and lawyer is protected by the attorney-client privilege. There is no blanket privilege for all attorney-client communications. The privilege must instead be claimed with respect to each specific communication. In deciding whether the privilege attaches, a trial court must examine each communication independently.

➤ Wesp v. Everson, 33 P.3d 191, 197 (Colo. 2001). See also DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013). See also Menapace v. Alaska Nat'l Ins. Co., No. 20-cv-00053-REB-STV, 2020 U.S. Dist. LEXIS 191695, at *40 (D. Colo. Oct. 15, 2020) ("[E]ach document withheld or redacted must be individually evaluated to determine whether the document relates to the provision of legal advice and thus is privileged").

"[T]he attorney-client privilege may frustrate the fact-finding process, [so] it exists in constant tension with the judicial system's truth-seeking goals. However, [the Colorado Supreme Court stated] that that tension 'is the price that society must pay for the availability ofjustice to every citizen, which is the value that the privilege is designed to ensure.' The overall social benefits of the privilege outweigh any harm that may result in a particular case from the privilege's application."

➤ Wesp, 33 P.3d at 197 (internal citations omitted).

Therefore, in Colorado, the attorney-client privilege is strictly construed.

➤ People v. Dist. Ct., 743 P.2d 432, 435 (Colo. 1987) (citing People v. Dist. Ct., 719 P.2d 722, 724 (Colo. 1986)).

Federal courts have expressed similar views. The attorney-client privilege serves important purposes in our system of justice. As with all privileges invoked in the discovery process, however, it has the effect of withholding relevant information from the finder of fact. As the Supreme Court has stated, "Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth."

➤ United States v. Nixon, 418 U.S. 683, 710 (1974). See also Trammel v. United States, 445 U.S. 40, 50 (1980) ("Testimonial exclusionary rules and privileges contravene the fundamental principle that the public . . . has a right to every man's evidence. As such, they must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.") (internal citations and quotations omitted) (marital privilege); Everitt v. Brezzel, 750 F. Supp. 1063, 1066 (D. Colo. 1990) ("federal courts narrowly construe all privileges, whether of constitutional, common-law, or statutory origin."); In re M & L Bus. Mach. Co., 161 B.R. 689, 695 (D. Colo. 1993) (the privilege is narrowly construed "because it inhibits the truth-finding process").
Practice Pointer
Anticipating issues involving attorney-client privilege in discovery is helpful for case planning, strategy, and client relations. Where a dispute arises between you and opposing counsel about the applicability or scope of the privilege, confer in good faith

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