In re Jordan v. Terumo BCT.

2024 CO 38. No. 24SA34. Privileged Communications and Confidentiality.

June 10, 2024

Plaintiffs in this toxic tort action sought relief under C.A.R. 21, and the Supreme Court issued a rule to show cause that required it to address two issues: (1) whether the district court erred in finding that the attorney-client privilege does not apply to protect a client’s confidential communications of facts to trial counsel; and (2) whether the district court erred in finding that, when trial counsel provided to an expert a spreadsheet of information learned in confidential client communications, plaintiffs waived—and CRCP 26(a)(2) requires disclosure of—the underlying client communications that the expert never saw.

The Court concluded that although the underlying facts were not privileged, the district court erred in finding that the attorney-client privilege does not apply to protect a client’s confidential communications of such facts to trial counsel. Clients routinely provide factual information to their counsel. This does not mean that opposing counsel is entitled to obtain the clients’ communications containing such facts. Rather, the proper method of obtaining such facts is through discovery directed at the clients.

The Court further concluded that the district court erred in finding that CRCP 26(a)(2) required plaintiffs to disclose not only the spreadsheet provided to their expert, but also any privileged and confidential communications that the expert never saw but that counsel used to prepare the spreadsheet. The disclosure of the spreadsheet to the expert in this case did not effect a waiver of privilege. Rather, plaintiffs were obligated to produce only the information that they provided to their expert.

Accordingly, the Court made its rule to show cause absolute.