Colorado Rule of Evidence 502: Preserving Privilege and Work Product Protection in Discovery, 1016 COBJ, Vol. 45, No. 10 Pg. 19
| Author | Christopher B. Mueller, Ronald J. Hedges, Lino S. Lipinsky, J. |
Christopher B. Mueller, Ronald J. Hedges, Lino S. Lipinsky, J.
The Civil Litigator
Colorado Rule of Evidence 502 follows Federal Rule of Evidence 502 in taking a flexible approach to determining whether a waiver of the attorney-client privilege or work product protection has occurred in civil and criminal actions. This article explores the main provisions of the rule.
The
Colorado Supreme Court adopted Colorado Rule of Evidence
(CRE) 502 effective March 22, 2016. The new rule is based on
a similar provision added in 2008 to the Federal Rules of
Evidence (FRE) that takes a flexile approach to the question
whether disclosure in civil or criminal actions can result in
a waiver of attorney-client privilege or work product
protection Fourteen other states have also adopted versions
of FRE 502.
Major Provisions of CRE 502
Briefly, the new rule contains five major provisions:
1. CRE 502(b) provides that inadvertent production does not necessarily waive claims of attorney-client privilege or work product protection. In this respect, the rule complements the “clawback” provision in Colorado Rule of Civil Procedure (CRCP) 26(b)(5)(B), adopted in 2014, which allows the producing party to seek return of material disclosed inadvertently and bars the receiving party from using or disclosing it until a court can rule on the underlying issues. The clawback provision assumes that inadvertent disclosure doesn’t necessarily waive claims of privilege or work product, and CRE 502 adopts this principle in the form of a rule that is a statement of positive law.
2. CRE 502(a) sets a standard for the extent of waiver of privilege or work product protection: Intentional waiver extends to undisclosed material dealing with “the same subject matter” as the disclosed material to the extent that the former “ought in fairness” to be considered with what was disclosed. Inadvertent disclosure-to the extent that it results in waiver at all-extends only to what was actually disclosed. In other words, broad subject matter waiver is discarded where disclosure is inadvertent.
3. CRE 502(d) and (e) provide for court orders and party agreements dealing with the effects of disclosure on claims of privilege or work product protection Under Rule 502(e), such agreements and court orders a re enforceable among the parties.
4. CRE 502(d) also provides that court orders (which typically embody agreements reached by the parties) are enforceable in other state or federal proceedings, which means that they are enforceable not only against the parties in the proceeding that generated the court order, but against nonsigning outside parties in other proceedings as well.
5. CRE 502(c) addresses the effect in Colorado proceedings of disclosures in other federal or state courts. It provides that disclosures in other state or federal courts that are not covered by a court order do not waive privilege claims or work product protection in Colorado courts if those disclosures would not have resulted in waiver had they occurred in a Colorado proceeding. Both FRE 502 and CRE 502 are silent on what happens if disclosure occurs in proceedings in other courts that have entered orders governing the matter. The framers of the federal provision thought that orders entered by state courts would be honored by federal courts, as a matter of full faith and credit, and that orders entered by federal courts would be honored in other federal courts, as a matter of federal preclusion law and full faith and credit if the order affected privilege claims based on state law.2 Hence the federal framers thought no rule was necessary for these situations, and CRE 502 reflects the same underlying view.
The following sections look more closely at these provisions.
Waiver by Inadvertent Production
Until late in the last century, giants such as Wigmore and McCormick took the view that litigants disclosed at their peril.3 The prevailing attitude was that “privileges shut out the light” and confer only “speculative benefits,” so a kind of “absolute liability” was appropriate.4 Disclosure meant that the claimant hadn’t exercised proper care, so protection was lost no matter how disclosure occurred.
In the digital age, however, with increasingly complex litigation and an explosion of electronically stored information, a strict waiver rule no longer makes sense (arguably, it made no sense 50 years ago either). Indeed, electronically stored information is such a common phenomenon that it has acquired an acronym recognized everywhere—ESI. Anyone who writes a brief or article knows that it’s impossible to catch every typo, no matter how much time is spent in the effort. In much modern litigation (in both civil and criminal cases) it’s also impossible to catch every document embraced by attorney–client privilege or work product protection.
Equally important, the cost of an exhaustive effort to conduct a privilege and work product review is often vastly disproportional to the risks: A great many documents that are privileged or work product may also be inconsequential or of marginal utility, so disclosure has little or no impact. But this is not always the case, which is why it is critical to prevent inadvertent or accidental disclosure from having serious consequences. Some documents reflect client statements not known to the other side, and some reveal tactics or strategy that would be embarrassing or damaging, even though these documents reflect careful and responsible legal representation.
Even before the adoption of CRE 502, Colorado case law had embraced the view that inadvertent production does not necessarily waive attorney–client privilege. The salient authority is the Colorado Court of Appeals decision in Floyd v. Coors Brewing Co.,5 which followed what the Court called the “modern trend.” Floyd endorsed consideration of the following factors in deciding whether inadvertent production might result in waiver of attorney– client privilege:
• the extent to which reasonable precautions were taken to prevent the disclosure of privileged information;
• the number of inadvertent disclosures made in relation to the total number of documents produced;
• the extent to which the disclosure, albeit inadvertent, has caused such a lack of confidentiality that no meaningful confidentiality can be restored;
• the extent to which the disclosing party has sought remedial measures in a timely fashion; and
• considerations of fairness to both parties under the circumstances.6
Extent of Waiver
Under FRE 502(a)(1) and (3), “intentional” disclosure waives privilege or work product protection for material actually disclosed and for other material that “ought in fairness to be considered” with it. This provision aims to prevent selective disclosure for tactical reasons that might distort the truth But under FRE 502(b), “inadvertent” disclosure can waive privilege or work product protection only for material actually disclosed. More important, under FRE 502(b)(2) and (3), such disclosure does not waive privilege or work product protection at all if the disclosing party “took reasonable steps” to prevent it and “promptly took reasonable steps to rectify the error.”
The challenge is to know what constitutes “reasonable steps,” particularly before disclosure, where the question is whether the disclosing party took reasonable steps to catch privileged material and work product, but failed to do so and wound up inadvertently disclosing it. Rhoads Industries v. Building Materials Corp7 provides the most extensive discussion of this matter. Citing the same five factors stressed in Floyd, the federal court in Rhoads Industries concluded that inadvertent production did not...
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