Chapter 10 - § 10.3 • WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE

• Jurisdiction: Colorado

§ 10.3 • WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE

§ 10.3.1—Waiver Generally

Generally, the attorney-client privilege is personal with the client.

➤ Losavio v. Dist. Ct., 533 P.2d 32, 35 (Colo. 1975) (citing Mauro v. Tracey, 380 P.2d 570 (Colo. 1963)); Fearnley v. Fearnley, 44 Colo. 417, 98 P. 819 (1908).

The attorney-client privilege is not absolute and may be waived by the client.

➤ People v. Madera, 112 P.3d 688, 690 (Colo. 2005) (citing Losavio, 533 P.2d at 35).

The privilege may be waived only by the client.

➤ Hill v. Hill, 106 Colo. 492, 107 P.2d 597 (1940).

"A client impliedly waives the attorney-client privilege when he or she (1) discloses privileged communications to a third party or (2) asserts a claim or defense focusing on advice given by the attorney, thereby placing the allegedly privileged communications at issue. The mere fact, however, that privileged information might become relevant in a particular lawsuit could not alone be enough to establish an implied waiver. If it could, then the privilege would lose much of its protective force because privileged information may be in some sense relevant in any lawsuit."

➤ Rademacher v. Greschler, 2020 CO 4, ¶ 23 (internal quotation and citations omitted).

Colorado courts will find waiver of the privilege when:

1) Assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party;
2) Through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and
3) Application of the privilege would have denied the opposing party access to information vital to his or her defense.
➤ Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 543-44 (Colo. 1989) (citations omitted). See also People v. Trujillo, 144 P.3d 539 (Colo. 2006).

The burden of proving waiver of the attorney-client privilege is on the party seeking to overcome it.

➤ People v. Madera, 112 P.3d 688, 690 (Colo. 2005).

The Tenth Circuit reviews the district court's determination regarding waiver of attorney-client privilege under an abuse of discretion standard.

➤ Harte v. Bd. of Comm'rs, 940 F.3d 498, 522 (10th Cir. 2019) (citing Frontier Ref. Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998)). See also Hedquist v. Beamer, 763 F. App'x 705, 716-171 (10th Cir. 2019) (unpublished) (same standard regarding a motion to compel).

Privileges further the administration ofjustice and "should not be set aside lightly."

➤ McNeil-PPC, Inc. v. Procter & Gamble Co., 138 F.R.D. 136, 138 (D. Colo. 1991).

However, failure to object to the disclosure of attorney-client communications waives the privilege.

➤ Wesp v. Everson, 33 P.3d 191, 198 (Colo. 2001); Hollins v. Powell, 773 F.2d 191, 197 (8th Cir. 1985).

For purposes of Colorado proceedings, Colorado Rule of Evidence 502 sets forth the framework for addressing issues involving waiver of the attorney-client privilege:

CRE 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(a) Disclosure Made in a Colorado Proceeding or to a Colorado Office or Agency; Scope of a Waiver. When the disclosure is made in a Colorado proceeding or to an office or agency of a Colorado state, county, or local government and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Colorado proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a Colorado proceeding or to an office or agency of a Colorado state, county, or local government, the disclosure does not operate as a waiver in a Colorado proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following C.R.C.P. 26(b)(5)(B).
(c) Disclosure Made in a Federal or other State Proceeding. When the disclosure is made in a proceeding in federal court or the court of another state and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in a Colorado proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a Colorado proceeding; or
(2) is not a waiver under the law governing the state or federal proceeding where the disclosure occurred.
(d) Controlling Effect of a Court Order. A Colorado court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court - in which event the disclosure is also not a waiver in any other proceeding.
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a Colorado proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Definitions. In this rule:
(1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and
(2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

Rule 502 of the Federal Rules of Evidence governs the application of the attorney-client privilege in federal court, even when — under Federal Rule of Evidence 501 — state law provides the rule of decision concerning the definition of the privilege. Rule 502 provides:

FRE 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:

(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.

(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of this Rule. Notwithstanding [Federal] Rules [of Evidence] 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
(g) Definitions. In this rule:

(1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and
(2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

Except for its references to federal proceedings and subsection (f), FRE 502 is materially identical to its Colorado counterpart. Subsection (f) is primarily intended to limit the costs in all federal proceedings regardless of whether the claim arises under state or federal law. The rule applies when "protected communications or information disclosed in federal proceedings are subsequently offered in state proceedings. Otherwise, the holders of protected communications and information, and their lawyers, could not rely on the protections provided by the Rule, and the goal of limiting costs in discovery would be substantially undermined."

➤ Explanatory Note to Rule 502(f), FRE.

§ 10.3.2—Waiver Based on Disclosure to Third Parties

Communications made to a lawyer with the intent that they be conveyed to a third party fall outside the attorney-client privilege.

➤ Hill v. Hill, 107 P.2d 597, 599 (Colo. 1940); South Carolina Ins. Co. v. Fisher, 698 P.2d 1369, 1371 (Colo. App. 1984); People v. Lambert, 572 P.2d 847, 849 (Colo. App. 1977). See also In re Grand Jury Proceedings, 616 F.3d 1172, 1184 (10th Cir. 2010) ("[A] party waives the privilege when he voluntarily discloses to a third party material or information that he later claims is

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