HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 048 - Df's Response To Mil To Preclude Reference To Attorney-Referred CareDISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 498-6100
Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN
v.
Defendant: THE CITY OF FORT COLLINS, State of
Colorado
COURT USE ONLY
Andrew W. Callahan, #52421 – acallahan@wicklaw.com
Julie M. Yates, #36393 – jyates@wicklaw.com
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Phone & Fax Number: (970) 482-4011
John R. Duval, #10185 – jduval@fcgov.com
Adam Stephens, #55637 – adstephens@fcgov.com
Fort Collins City Attorney’s Office
P.O. Box 580
Fort Collins, CO 80524
(970) 221-6520
Case No.: 2020 CV 30363
Division: 3C
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION IN LIMINE TO
PRECLUDE REFERENCE TO ATTORNEY-REFERRED CARE
COMES NOW Defendant the City of Fort Collins, by and through counsel, and responds
to Plaintiffs’ Motion in Limine to Preclude Reference to Attorney-Referred Care as follows:
I. BACKGROUND
On May 25, 2021, Plaintiffs served upon Defendant, the City of Fort Collins, Plaintiffs’
Expert Disclosures, pursuant to Colorado Rule of Civil Procedure (26)(a)(2)(B)(II). For all
treatment providers disclosed, Plaintiffs state how they were referred to each provider.
Plaintiffs produced records for the Colorado Clinic, bate stamped as “Colorado Clinic
Records and Bills 003” in which the following statement can be found: “4 days later after lawyers
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advice he went to see a doctor.” Plaintiffs redacted confidential information throughout the
document but did not redact that portion of the record.
On May 27, 2021, the City of Fort Collins took the deposition of Plaintiff Steward Cross
and asked him about a specific medical record in which he stated to a medical provider that his
attorney directed him to see the medical provider. Mr. Harris, Mr. Cross’s attorney, objected on
the basis of foundation but directed his client to answer the question.
On June 2, 2021, Plaintiffs submitted their privilege log, on which Mr. Cross’s statements
to the medical provider that his attorney directed him to see the particular medical provider was
not included as confidential or privileged information.
II. LEGAL STANDARD
Attorney-client privilege is a privilege held by the client, not the attorney, and can be
waived either expressly or impliedly by the client. State Farm Fire and Casualty Company v.
Griggs, 419 P.3d 572, 574 (Colo. 2018); People v. Madera, 112 P.3d 688, 690 (Colo.2005). The
privilege is waived by the client disclosing the information to a third party. Id. “The attorney-
client privilege applies to confidential matters communicated by or to the client in the course of
obtaining counsel, advice, or direction with respect to the client's rights or obligations.” People
v. Truijillo, 144 P.3d 539, 542 (Colo. 2006).
Colorado Rules of Professional Conduct 1.6 provides:
(a) A lawyer shall not reveal information relating to the representation
of a client unless the client gives informed consent, the disclosure is
impliedly authorized in order to carry out the representation, or the
disclosure is permitted by paragraph (b).
Colorado Rules of Evidence 502 provides:
(a) Disclosure Made in a Colorado Proceeding or to a Colorado
Office or Agency; Scope of a Waiver.
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When the disclosure is made in a Colorado proceeding or to an office or
agency of a Colorado state, county, or local government and waives the
attorney-client privilege or work-product protection, the waiver extends to
an undisclosed communication or information in a Colorado proceeding
only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information
concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a Colorado proceeding or
to an office or agency of a Colorado state, county, or local government, the
disclosure does not operate as a waiver in a Colorado proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to
prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error,
including (if applicable) following C.R.C.P. 26(b)(5)(B).
Colorado Rules of Civil Procedure, 30(d)(1) provides:
(1) Any objection during a deposition shall be stated concisely and in a
non-argumentative and non-suggestive manner. An instruction not to
answer may be made during a deposition only when necessary to preserve
a privilege, to enforce a limitation directed by the court, or to present a
motion pursuant to subsection (d)(3) of this Rule.
III. ARGUMENT
Plaintiff Stuward Cross waived any attorney-client privilege regarding the statement when
his disclosed to a third-party that his attorney directed him to see Dr. Silva. The City of Fort Collins
asserts that such a disclosure was an intentional waiver of the privilege by the privilege holder.
If the waiver was unintentional, Plaintiffs had the opportunity and obligation to recant the
waiver or reinstate the privilege when they disclosed the medical records by redacting the
statement contained therein – however, Plaintiff failed to do so – despite having redacted other
matters within the record. And, finally, Plaintiffs’ counsel had the right under Colorado Rules of
Civil Procedure 30(d)(1) to direct his client not to answer the question during the deposition but
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instead, objected only on a basis of foundation and directed his client to continue to answer the
question.
IV. CONCLUSION AND REQUEST
The City of Fort Collins requests that the Court find that the particular statement made by
Plaintiff Cross to a medical provider, if it is a privileged statement, that it was waived by virtual
of the Plaintiff’s disclosure and his counsel’s failure to take affirmative and reasonable steps to
protect the statement as required under Colorado Rules of Evidence 502(b).
Respectfully submitted this 25th day of October, 2021.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Julie M. Yates, ##36393
Attorneys for Defendants
And
John R. Duval, #10185
Adam Stephens, #55637
Fort Collins City Attorney’s Office
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CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE
REFERENCE TO ATTORNEY-REFERRED CARE was served via the Colorado Courts E-Filing
System this 25th day of October, 2021, on the following:
Laura Michelle Browne
Ashley Fridovich
Wilhite, Rose, McClure & Sawaya, P.C.
1600 N. Ogden Street
Denver, CO 80218
Adam Stephens
John Duval
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
s/Jody L. Minch