By JOHN L. WATSON
Spencer Fane LLP
Colorado Supreme Court Justice Richard Gabriel, writing for a unanimous court, recently dispelled several misconceptions about the attorney-client communication privilege and the protections afforded by the Colorado Rules of Civil Procedure concerning experts.
In a toxic tort action, the Colorado Supreme Court engaged in a rare original jurisdiction case pursuant to appellate Rule 21 and held that a district court trial judge erred in finding that:
- The attorney-client privilege does not apply to protect a client’s confidential communications of certain facts to trial counsel; and
- The duty of disclosure related to experts pursuant to Rule 26(a)(2) required plaintiffs to disclose not only a spreadsheet provided to their expert, but also any privileged and confidential communications the expert never saw but counsel used to prepare the spreadsheet.
The defendant in In Re Jordan v. Terumo BCT1 operates a plant in Lakewood, Colorado that sterilizes health care products and medical equipment. Terumo emits ethylene oxide, a known human carcinogen, as part of the process.
The plaintiffs filed three lawsuits against Terumo in Jefferson County District Court. Although only two of the lawsuits had been consolidated for trial, discovery was coordinated in all three cases. The plaintiffs lived and worked near the plant and alleged that exposure to ethylene oxide emissions caused their cancer.
The Spreadsheet
The plaintiffs’ expert conducted air dispersion modeling to estimate each plaintiff’s alleged exposure.
To assist in that analysis, the plaintiffs provided counsel in emails and interviews with information that primarily focused on where and when the plaintiffs lived and worked in the area. The plaintiffs’ counsel compiled this information in a spreadsheet and provided the data to their expert. Counsel did not, however, provide the expert with any of the underlying communications between the plaintiffs and counsel.
Ultimately, plaintiffs’ counsel produced a spreadsheet to the defense that they had given to the expert as well as a redacted email from counsel to the expert that provided updates to the spreadsheet information.
Motion for Contempt
Terumo filed a motion for contempt, seeking to compel plaintiffs to produce the attorney-client communications that allowed counsel to prepare the spreadsheet. Terumo argued that, because the attorney-client privilege does not protect the underlying and otherwise unprivileged facts and data that are incorporated into a client’s communications with counsel, Terumo was entitled to the underlying communications, which Terumo characterized as the “underlying factual data,” to verify the accuracy of the plaintiffs’ counsels’ summaries upon which the expert relied.
The plaintiffs said they were not required to produce the underlying communications because, although the facts and data that the expert considered are discoverable, the expert “never received, viewed, or considered” the communications that Terumo seeks and therefore those communications were not discoverable under Rule 26(a)(2).
Trial Court Ruling
The trial court granted Terumo’s motion, ordering that “any underlying facts and data in any communication between individual plaintiffs and their counsel shall be discovered, in whatever form that takes (emails, surveys, questionnaires, interview notes, etc.).” The court said that “even though [the expert] never saw or considered the attorney-client communication that resulted in the spreadsheet, he did actually consider that underlying data and assumptions in forming his opinions,” and, thus, “that underlying data is discoverable under C.R.C.P. 26(b)(1).”
The trial court ordered the plaintiffs’ counsel to produce the information emphasizing that because plaintiffs’ counsel had been “involved in the data collection process,” the plaintiffs’ counsel had “waived any privilege they wish[ed] to claim associated with that data collection.”
The plaintiffs’ motion for reconsideration attached signed declarations from each plaintiff confirming the information that was contained in the spreadsheet. It emphasized that the plaintiffs “always understood [their communications with counsel] to be privileged” and that they did not “waive, and have never intended to waive, privilege over any such communications.”
In denying the motion for reconsideration, the court ruled that the signed declarations were insufficient because they did not afford Terumo the opportunity to confirm or analyze whether there had been changes in the plaintiffs’ reporting of exposure sites or timeframes or whether there had been omissions from the plaintiffs’ counsel’s summaries and reports.
Attorney-Client Privilege and Communications Versus Facts
In a concise four-page primer on the privilege, Justice Gabriel walks us through:
- Section 13-90-107(1)(b) of the 2023 Colorado Revised Statutes, which codified the common-law attorney-client privilege that states, “An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment…” and
- Caselaw starting with Gordon v. Boyles that explains that the privilege is premised on the notion that candid and open communication from the client to the attorney without fear of disclosure will promote the orderly administration of justice.
The Colorado Supreme Court concludes:
“Terumo’s argument overlooks the fundamental distinction in our case law between communications and facts. As noted above, facts, even when made within a client’s communication to counsel, are not protected by the attorney-client privilege and are discoverable. Thus, whether those facts are shared with an expert while preparing for trial or divulged to opposing counsel during discovery, the party sharing those facts has not disclosed anything that can be deemed privileged or confidential.
“That does not mean, however, as Terumo appears to suggest, that the client no longer has a reasonable expectation that the communications themselves will be treated as confidential.”
Waivers and Rule 26(a)(2)
The court then turned to the issue of whether the plaintiffs waived privilege when their counsel provided their expert with a spreadsheet containing information learned in confidential client communications, without providing the communications themselves. The plaintiffs argued that their counsel had merely provided the expert with the spreadsheet and that by so doing they did not waive the attorney-client privilege as to the underlying communications because the expert never considered those communications; the expert only relied on and used the facts and data in forming his opinion.
The Supreme Court agreed.
No Waiver
The plaintiffs shared with their expert a spreadsheet containing non-privileged, factual information. The spreadsheet had, indeed, been compiled from confidential communications with plaintiffs. But the disclosure of that non-privileged information “does not mean that 20 plaintiffs impliedly waived the attorney-client privilege as to the privileged communications.”
The court stated:
“Rather, for plaintiffs to have impliedly waived the attorney-client privilege over their confidential communications, they would have needed to disclose the communications to the expert.
“Nothing in the record indicates, however, and Terumo does not appear to suggest, that the expert saw any of the communications sent from plaintiffs to their counsel.
“Moreover, because nothing in the record suggests that the expert ever read or reviewed (i.e., considered) those underlying communications, and because C.R.C.P. 26(a)(2) compels the disclosure of only that which the expert has considered in forming his opinion, we conclude that the district court erred in ordering plaintiffs to produce, pursuant to C.R.C.P. 26(a)(2), their communications with their counsel.”
– Spencer Fane of counsel John Watson leverages his commercial trial and litigation knowledge to understand clients’ needs and goals and serves as an advocate on their behalf. He can be contacted at 303.592.8339 and [email protected].