Chapter 2 - § 2.9 • OBJECTIONS: PRIVACY AND CONFIDENTIALITY

• Jurisdiction: Colorado

§ 2.9 • OBJECTIONS: PRIVACY AND CONFIDENTIALITY

The Colorado Supreme Court has held that the privacy of both parties and non-parties can be considered when weighing whether an interrogatory is valid. To answer the question, the court developed a balancing test that considers the right to privacy.

➤ Corbetta v. Albertson's, Inc., 975 P.2d 718, 720-21 (Colo. 1999) ("[R]elevancy is not the end of the inquiry. An additional test is necessary when a party opposes discovery on the ground that it would violate a right to privacy or a right to confidentiality.")

When the right to privacy or confidentiality is invoked, to prevent discovery of personal information, a court must conduct a three-part balancing inquiry. The court first must consider whether the party whose privacy is at stake had a legitimate expectation of nondisclosure. If so, there must be a compelling state interest to violate that expectation of privacy. Finally, the disclosure must be done by the least intrusive means possible.

➤ Id.

Indeed, it is an abuse of discretion for a trial court to compel the production of private information without balancing the interests of the parties and the need for discovery.

➤ Williams v. Dist. Court, 866 P.2d 908 (Colo. 1993).

In a civil action in which exemplary damages are sought, evidence of income or the net worth of a party cannot be considered in determining the appropriateness or amount of such damages. See C.R.S. § 13-21-102(6).

➤ Corbetta, 975 P.2d at 723.

Trade secrets do not have absolute protection against disclosure if they are relevant and necessary for trial. Moreover, the fact that a trade secret may be revealed is not enough to sustain an objection; the objection is premature unless disclosure of an actual trade secret is requested. A protective order may be sought if trade secret or other proprietary information is requested, but the moving party must establish that the information is proprietary and its disclosure might be...