Work Product — Rule 502

• Jurisdiction: Colorado

Work Product — Rule 502

SUMMARY OF RULE 502 (adopted March 22, 2016)

• Rule 502 generally takes a flexible approach when determining if disclosure in a civil or criminal matter results in waiver of the attorney-client privilege or work-product protection.
• If disclosure is made in a Colorado proceeding or to an office or agency of the state, county, or local government, and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication only if the waiver is intentional, the disclosed and undisclosed communication concern the same matter, and they ought, in fairness, to be considered together.
• If disclosure is inadvertent, it does not operate as a waiver if the holder of the privilege or protection took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error, including following C.R.C.P. 26(b)(5)(B).
• If disclosure is made in a federal or other state proceeding and is not the subject of a court order concerning waiver, disclosure does not operate as a waiver if it would not be a waiver if it had been made in a Colorado proceeding or is not a waiver under the law in the state or federal proceeding where disclosure occurred.
• The Colorado court may order that the privilege or protection is not waived by a disclosure connected with pending litigation before the court — in which event disclosure is also not waived in any other proceeding.

LEGAL AUTHORITIES

• This new rule is modeled after Federal Rule of Evidence 502.

• Colorado case law has recognized the view...