In re People in the Interest of Minor Children.

2023 CO 57. No. 23SA126. Dependency and& Neglect Proceedings—Attorney-Client Privilege—Privilege Log—In Camera Review.

November 14, 2023

In this dependency and neglect proceeding, the Supreme Court considered whether, as Washington County contended, the district court erred when it failed to adhere to People v. Madera, 112 P.3d 688 (Colo. 2005), in granting father’s request for an in camera review of documents that are allegedly protected by the attorney-client privilege. The district court and father argued that Madera is inapposite and that the challenged ruling is free of error because it is consistent with Alcon v. Spicer, 113 P.3d 735 (Colo. 2005).

In Madera, the Court held, in the context of a criminal defendant’s post-plea ineffective assistance of counsel claim, that a court may not grant a request for an in camera review of defense counsel’s entire case file without an adequate factual basis supporting a good faith belief by a reasonable person that not all the documents in the case file are protected by the attorney-client privilege. Further, the Madera Court explained that a six-part analytical framework must be used to determine whether the party seeking an in camera review has established the requisite factual basis.

In Alcon, the Court held, in the context of a civil personal injury claim, that when a party wishes to assert a privilege in response to a discovery request, the rules of civil procedure require notification to the other party via a privilege log that identifies the documents withheld and explains the privilege claim. The Court emphasized that “[t]he documents must be described in the log with sufficient detail so that the opposing party and, if necessary, the trial court can assess the claim of privilege as to each withheld communication.” The Court added that if the party seeking discovery reviews the privilege log and continues to assert that privilege does not apply, it may request “an in camera inspection of the challenged documents entered on the privilege log.”

Here, the Court concluded that the district court correctly followed Alcon, not Madera, in this civil case. It further concluded that, consistent with Alcon, the district court correctly granted father’s request for an in camera review because Washington County’s privilege log did not permit an assessment of the claim of privilege. Therefore, the rule to show cause was discharged and the matter was remanded for additional proceedings consistent with this opinion.