June 22, 2018

Colorado Supreme Court: Attorney Affidavit Did Not Put Privileged Information at Issue, Therefore Privilege Not Waived

The Colorado Supreme Court issued its opinion in In re State Farm Fire & Casualty Co. v. Griggs on Monday, June 4, 2018.

Attorney-Client Privilege—Implied Waiver.

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s determination that petitioner State Farm Fire and Casualty Company impliedly waived the attorney-client privilege protecting communications between it and its former counsel when it submitted an affidavit from that former counsel to rebut factual allegations of discovery misconduct. The court issued a rule to show to cause why the district court’s finding of implied waiver should not be reversed and now makes that rule absolute. The attorney affidavit submitted in this case did not put privileged information at issue by asserting a claim or defense that depends on privileged information or attorney advice. Rather, the affidavit contained only factual statements that were intended to rebut allegations of discovery misconduct. Accordingly, the court concluded that the district court erred in finding that State Farm impliedly waived its attorney-client privilege on the facts presented.

Summary provided courtesy of Colorado Lawyer.