JUSTICE GABRIEL delivered the Opinion of the Court.
Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org. ADVANCE SHEET HEADNOTE Attorney-Client Privilege—Discovery—Client with Diminished Mental Capacity.
In this original proceeding pursuant to C.A.R. 21, the court reviews the district court's order compelling production of a recording of the Petitioner's initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that the Petitioner raised in a motion for reconsideration.
The supreme court issued a rule to show cause and now concludes that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party's presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court's finding that the Petitioner had not shown that her parents' presence was reasonably necessary to facilitate the communication with counsel, the court perceives no abuse of discretion in the district court's ruling that the recording at issue was not protected by the attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Accordingly, the court discharges the rule to show cause. Original Proceeding Pursuant to C.A.R. 21
Mesa County District Court Case No. 15CV30797
Honorable Lance Phillip Timbreza, Judge Rule Discharged
en banc Attorneys for Plaintiff:
Leventhal & Puga, P.C.
James Leventhal
Bruce L. Braley
Brian N. Aleinikoff
Benjamin I. Sachs
Denver, Colorado Attorneys for Defendant William Alfini, Jr., D.C.:
Hershey Decker Drake
C. Todd Drake
Kari M. Hershey
Matthew George
Lone Tree, Colorado Attorneys for Defendant Brady Chiropractic Group, P.C.:
Messner Reeves LLP
Katherine Otto
Kendra N. Beckwith
Tanner J. Walls
Denver, Colorado Attorneys for Amicus Curiae The Colorado Trial Lawyers Association:
The Komyatte Law Firm LLC
David P. Mason
Lakewood, Colorado Lowrey Parady LLC
J. Bennett Lebsack
Denver, Colorado Attorneys for Amicus Curiae The Colorado Defense Lawyers Association:
Wheeler Trigg O'Donnell LLP
Theresa R. Wardon
Abigail S. Wallach
Kevin D. Homiak
Brian S. Osterman
Denver, Colorado JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE HOOD specially concurs.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS and JUSTICE BOATRIGHT join in the dissent. ¶1 In this original proceeding pursuant to C.A.R. 21, we review the district court's order compelling production of a recording of petitioner Kayla Fox's initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that Fox raised in a motion for reconsideration. ¶2 We issued a rule to show cause and now conclude that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party's presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court's finding that Fox had not shown that her parents' presence was reasonably necessary to facilitate the communication with counsel, we perceive no abuse of discretion in that court's ruling that the recording at issue was not protected by the attorney-client privilege. ¶3 We further conclude that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that Fox raised in her motion for reconsideration. ¶4 Accordingly, we discharge the rule to show cause.
I. Facts and Procedural Background
¶5 Fox, who was then in her early thirties, became seriously ill immediately after receiving chiropractic treatment from Dr. William Alfini, Jr. at the offices of the Brady court thus ruled that the attorney-client privilege did not protect the recording and granted defendants' request to compel the production of that recording. ¶11 Fox then moved for reconsideration. In this motion, she argued, for the first time, that the attorney-client privilege attached to the recording because (1) her parents were prospective clients of Leventhal's and (2) her parents were her agents and shared common legal interests with her. She further argued, also for the first time, that the recording was protected under the work-product doctrine and that defendants had not demonstrated substantial need to discover that recording. ¶12 The district court ultimately denied Fox's motion to reconsider, noting that "any arguments raised could have been raised during the pleading stage or at the hearing." ¶13 After obtaining a stay so that she could petition this court for relief, Fox filed the present C.A.R. 21 petition, and we issued a rule to show cause.
II. Analysis
¶14 We begin by discussing our jurisdiction to hear this matter and the standard of review for discovery orders. We then proceed to review the district court's findings concerning the attorney-client privilege, and we conclude that the court did not abuse its discretion in ordering the discovery of the recording at issue. Finally, we review the district court's denial of Fox's motion for reconsideration, and we conclude that the court did not abuse its discretion in refusing to consider arguments that Fox had raised for the first time in her motion for reconsideration.
A. Original Jurisdiction and Standard of Review
¶15 Exercise of our original jurisdiction under C.A.R. 21 is within our sole discretion. Fognani v. Young, 115 P.3d 1268, 1271 (Colo. 2005). An original proceeding under C.A.R. 21 is an extraordinary remedy that is limited in purpose and availability. Wesp v. Everson, 33 P.3d 191, 194 (Colo. 2001). Although discovery orders are generally interlocutory in nature and thus reviewable only on appeal, we have exercised our original jurisdiction to review whether a district court abused its discretion in circumstances in which a remedy on appeal would be inadequate. Gateway Logistics Inc. v. Smay, 2013 CO 25, ¶ 11, 302 P.3d 235, 238. ¶16 Here, the district court ordered Fox to produce a recording that she claims is protected by the attorney-client privilege. Damage to Fox from the erroneous production of this recording could not be cured by appeal because the damage would occur upon disclosure to defendants regardless of the outcome of an appeal from a final judgment. Id. at ¶ 12, 302 P.3d at 239. We therefore conclude that the exercise of our original jurisdiction is appropriate in this case. ¶17 We review a district court's discovery orders for an abuse of discretion. Id. at ¶ 13, 302 P.3d at 239. A district court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair. Id.
B. Attorney-Client Privilege
¶18 Fox contends that the district court abused its discretion in finding that the recording at issue was within the scope of discovery permitted by C.R.C.P. 26 because, in Fox's view, the recording is protected by the attorney-client privilege. sufficiency, probative effect and weight of the evidence, and the inferences and conclusions to be drawn from the evidence."). ¶33 In reaching this conclusion, we are not unmindful of the necessity in some circumstances for clients or prospective clients to have third parties assist them during attorney-client consultations. Nor should our ruling be read to discourage such assistance when it is necessary. We merely conclude that, on the facts of this case, the district court did not err when it found that Fox had not shown the requisite necessity to preserve her claim of privilege.
Our case law is thus distinguishable from that of jurisdictions in which the existence of the privilege has been deemed to turn not on the necessity of a third party's presence but on the issue of confidentiality or the reasonable expectation thereof. See, e.g., Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984) ("The guiding principle in determining whether or not there exists a privileged attorney-client relationship is the intent of the client. The key question in determining the existence of a privileged communication is 'whether the client reasonably understood the conference to be confidential.'") (quoting Charles T. McCormick, McCormick's Handbook of the Law of Evidence § 91, at 189 (2d ed. 1972)); In re Grand Jury Subpoena, 201 F. Supp. 3d 767, 775 (W.D.N.C. 2016) (noting that the client's intent with respect to confidentiality is determinative of the existence of the privilege).
Examples of such gamesmanship might include an attorney's gathering a client and certain witnesses together to get everyone's story straight or convening a group meeting to try to insulate otherwise nonprivileged and perhaps unhelpful information provided by a third party. In noting these examples, we do not mean to suggest that either Leventhal, Fox, or Fox's parents engaged in such gamesmanship here. --------
C. Arguments Raised on Reconsideration
¶34 Fox next contends that the district court abused its discretion in declining to address her arguments, made for the first time in a motion for reconsideration, that (1) her parents' presence during the initial conference with Leventhal did not destroy the attorney-client privilege because they were prospective clients of Leventhal's, were acting as her agents, and shared a common interest with her in the lawsuit and (2) the recording was protected under the work-product doctrine and defendants had not demonstrated a substantial need to discover that recording. ¶35 C.R.C.P. 121, § 1-15(11) provides, in pertinent part:
Motions to reconsider interlocutory orders of the court, meaning motions to reconsider other than those governed by C.R.C.P. 59 or 60, are disfavored. A party moving to reconsider must show more than a disagreement with the court's decision. Such a motion must allege a manifest error of fact or law that clearly mandates a different result or other circumstance resulting in manifest injustice.
¶38 Accordingly, we cannot say that the district court abused its discretion in declining to consider the arguments that Fox raised for the first time in her motion for reconsideration, and we do not reach the merits of those arguments.
III. Conclusion
¶39 For these reasons, we conclude that the district court did not abuse its discretion in (1) determining that the recording of the attorney-client conference at issue is not protected by the attorney-client privilege, given the presence of third parties who were not reasonably necessary to facilitate the communication, and (2) declining to consider the new arguments that Fox raised for the first time in her motion for reconsideration. ¶40 Accordingly, we discharge the rule to show cause. JUSTICE HOOD specially concurs.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS and JUSTICE BOATRIGHT join in the dissent. JUSTICE SAMOUR, dissenting. ¶48 The majority's decision to discharge the rule to show cause is tethered to the district court's factual finding that Fox's parents did not need to be present during the consultation with Leventhal. But the district court did not hold an evidentiary hearing to resolve the conflicts in the exhibits submitted with the parties' briefs. Instead, it made credibility assessments, resolved evidentiary conflicts, and reached factual findings based entirely on the paper record. Because I believe the district court erred in failing to hold an evidentiary hearing, I respectfully dissent. ¶49 The district court found that Fox was fully able to communicate, relate her symptoms, and describe her chiropractic adjustment in detail when she met with Leventhal and, therefore, her mental capacity was not so diminished that her parents' presence was necessary to assist during the consultation. In making this factual determination, the district court considered what are best characterized as the parties' offers of proof and concluded that defendants' proffer was more persuasive than Fox's. Respectfully, I cannot endorse this approach. ¶50 Without the benefit of live testimony, the district court deemed the affidavits submitted by Fox and her parents unconvincing. In those affidavits, Fox and her parents declared, under oath and subject to penalty of perjury, that:
• the stroke affected nearly every aspect of Fox's life, including her ability to live independently for a significant period of time;
• Fox's ability to concentrate, remember, and understand complex issues was significantly impaired when she met with Leventhal;
• during the timeframe of the consultation with Leventhal, Fox needed her parents to help her "understand a number of important issues in [her] life";
• Fox's parents spent significant time with Fox after the stroke to make sure she was doing well physically and "understood everything going on around her and was making well-reasoned decisions"; and
• Fox's parents attended the meeting with Leventhal because Fox and her parents realized that she needed assistance in understanding some of the complex issues that would come up during the meeting and because she did not feel she had the mental capacity to make decisions that were in her best interest concerning this lawsuit.
¶51 Not only did the district court dismiss these attestations, it ignored the report regarding Fox's neuropsychological evaluation. That report observed that tests conducted on Fox revealed, among other things:
• difficulties and impairments with aspects of her ability to maintain her attention and to process information;
• variability in her memory and ability to learn tasks;
• an elevated level of psychological distress, which included experiencing symptoms associated with depression and anxiety; and
• likely ongoing impairments with neuropsychological functioning.
Notably, the report mentioned that, since the evaluation had occurred approximately fifteen months after the stroke, it was likely that Fox had already experienced the majority of the anticipated recovery. In other words, had the tests been administered shortly after the stroke and before the consultation with Leventhal, the results may well have reflected greater neuropsychological impairment. ¶52 On the other side of the ledger were Facebook messages sent from Fox's account. These messages, which were sent before the consultation with Leventhal, indicated that:
the district court properly resolve the conflicts in the exhibits without properly assessing the credibility of the witnesses? ¶54 Invoking a basic tenet of appellate jurisprudence, the majority points out that we do not set aside a district court's factual findings unless we determine that those findings are so clearly erroneous as to find no support in the record. However, the very reason we generally employ such a deferential standard in reviewing a district court's factual findings is that the district court is in a unique position to assess the credibility of live witnesses, and therefore, to resolve conflicting evidence and determine the historical facts.
People v.
Trujillo, 784 P.2d 788, 792 (Colo. 1990),
abrogated on other grounds,
People v.
Matheny, 46 P.3d 453 (Colo. 2002). As we have explained:
The sanctity of trial court findings is derived from the recognition that the trial judge's presence during the presentation of testimonial evidence provides an unparalleled opportunity to determine the credibility of the witnesses and the weight to be afforded the evidence which is before the court. [Where] [t]he testimony of the parties [is] contradictory on almost every material point in controversy[,] [i]t is impossible to determine from the bare pages of the record whose testimony should be given credit relating to the facts. In such cases, the difficult task of finding those facts is best left to the trial court.
M.
D.
C.
/Wood,
Inc.
v.
Mortimer, 866 P.2d 1380, 1384 (Colo. 1994) (quoting
Page v.
Clark, 592 P.2d 792, 796 (Colo. 1979)) (citation omitted). ¶55 Here, the factual findings deserve no deference because we are in the same position to do what the district court did. The district court did not observe, much less evaluate, the demeanor or the body language of any live witnesses—indeed, there were no live witnesses. By electing to make credibility assessments, resolve conflicts in the
exhibits, and reach factual determinations on a cold record, the district court nullified its unique position to make factual findings and placed itself in the disadvantaged shoes of a reviewing court. The district court then proceeded to do precisely what a reviewing court abstains from doing because of the real danger of engaging in fact-finding on a cold record. ¶56 In the end, while the majority concludes that there is ample evidence in the record to support the district court's factual findings, it overlooks that there is equally ample evidence in the record to support contrary factual findings. Given the conflicts in the exhibits, the only way to properly settle the parties' factual dispute was to hold an evidentiary hearing. ¶57 Because the district court made credibility assessments, resolved the conflicts in the exhibits, and reached factual findings based entirely on the paper record without holding an evidentiary hearing, I respectfully dissent. The district court necessarily engaged in speculation to determine what to believe. In my view, this was error. I would make the rule to show cause absolute and remand for an evidentiary hearing in accordance with the legal test endorsed by the majority.
I am authorized to state that CHIEF JUSTICE COATS and JUSTICE BOATRIGHT join in this dissent.