Gates Corporation v. CRP Industries, Inc.

Filing 198

ORDER re: 144 Partial Objection to Order of Special Master on CRPs Motion to Compel, by Magistrate Judge Kristen L. Mix on 5/30/2019. Defendants Partial Objection to Order of Special Master on CRPs Motion to Compel # 144 is SUSTAINED in part and OVERRULED in part. IT IS ORDERED that on or before 6/5/2019, the parties shall comply with the Discovery Masters Final Order # 138 , except page 29, paragraphs (2)(b) and (c). IT IS FURTHER ORDERED that on or before 6/5/2019, Plaintiff shall produce to Defendant category A2 documents redacted. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01145-KLM
GATES CORPORATION,
Plaintiff,
v.
CRP INDUSTRIES, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Partial Objection to Order of
Special Master on CRP’s Motion to Compel [#144]1 (the “Partial Objection”). The Court
has reviewed and considered the following pleadings in connection with ruling on the Partial
Objection: Defendant’s Motion to Compel Production of Certain Communications [#99];
Plaintiff’s Response to Defendant’s Motion to Compel Production of Certain Documents
[#116]; Defendant’s Reply Brief in Further Support of Motion to Compel Production of
Certain

Communications

[#126];

Discovery

Master’s

Preliminary

Report

and

Recommendation on Defendant CRP Industries’ Motion to Compel Production of Certain
Communications [#135]; Discovery Master’s Final Order on Defendant CRP Industries’
Motion to Compel Production of Certain Communications [#138] (the “Final Order”);

1

“[#144]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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Defendant’s Partial Objection [#144]; and Plaintiff’s Response to Defendant’s Partial
Objection [#151], and is otherwise fully advised in the premises. For the reasons explained
below, the Partial Objection [#144] is SUSTAINED in part and OVERRULED in part.
I. Procedural Background
As discussed in detail in the Discovery Master’s Final Order [#138], the dispute at
issue involves Defendant’s desire for compelled production of documents Plaintiff has
identified as protected by various privileges. The Discovery Master conduced an in camera
review of the disputed documents and determined that some were discoverable and others
were not. [#138] at 15-30. Defendant objects to the Discovery Master’s conclusion that
Plaintiff did not waive the attorney-client privilege by relying on the equitable tolling doctrine
in response to Defendant’s assertion of a statute of limitations defense. Partial Objection
[#144] at 6-8. Defendant further objects to the Discovery Master’s direction that instead of
producing discoverable emails after redacting privileged information from them, Plaintiff
should instead “copy from [certain] documents all factual content shared between [Plaintiff]
and the government . . . and produce that content to [Defendant]. . . .” Id. at 10-11; [#138]
at 29. The Court addresses each objection in turn.
II. Analysis
A.

“At Issue” Waiver of the Attorney-Client Privilege
Defendant argues that the Colorado Supreme Court has developed a three-prong

test for application of “at-issue” waiver to the attorney-client privilege, but the Discovery
Master added his own fourth prong not supported by precedent. “Contrary to the Special
Master’s Order, Colorado law does not require a party to ‘proffer’ a privileged document in

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an ‘attempt[ ] to prove’ something in order for at-issue waiver to apply.” Partial Objection
[#144] at 7. The Court disagrees.
Three pertinent decisions of the Colorado Supreme Court make clear that an “atissue” implied waiver of the attorney-client privilege cannot occur unless the waiving party
“place[s] in issue a confidential communication going directly to [a] claim or defense.”
Mountain States Tel. & Tel Co. v. DiFede, 780 P.2d 533, 543 (Colo. 1989) (en banc)
(emphasis added). The first prong of the three-part test endorsed in DiFede is: “[A]ssertion
of the privilege was a result of some affirmative act, such as filing suit, by the asserting
party.” Id. (quoting League v. Vanice, 374 N.W.2d 849, 856 (Neb. 1985)). The second
prong of the test is: “[T]he asserting party put the protected information at issue by making
it relevant to the case.” Id. at 544. The third prong is: “[A]pplication of the privilege would
have denied the opposing party access to information vital to his [position].” Id. (emphasis
added).

In other words, at-issue waiver does not occur unless, because of some

affirmative assertion by the privilege holder, vital protected information must be disclosed.
The Special Master’s conclusion that “the claim or defense [as]serted by the privilege
holder must depend upon nondisclosed privileged items” is consistent with Colorado law.
Final Order [#138] at 23.
In fact, People v. Trujillo, 144 P.3d 539 (Colo. 2006) (en banc), held exactly that. The
issue in Trujillo was whether a criminal defendant impliedly waived the attorney-client
privilege by entering into a plea agreement and promising to provide truthful testimony. 144
P.3d at 543. In holding that she did not do so, the Court stated: “if a client asserts a claim
or defense that depends upon privileged information, she cannot simultaneously use the
privilege to keep that information away from the opposing party.” Id. (emphasis added).
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The linchpin of the doctrine is the privilege holder’s attempt to somehow rely on privileged
information to advance her cause. Without that reliance, privileged information remains not
“at issue” and hence, not subject to waiver of the privilege.
This conclusion was further bolstered by the Colorado Supreme Court’s decision in
State Farm Fire & Cas. Co. v. Griggs, 419 P.3d 572 (Colo. 2018). The Court took the
opportunity to further clarify what “at issue” means:
Although our cases have not expressly delineated what it means for
privileged communications to be placed “at issue” by way of a claim or
defense, we note that the fact that privileged information might become
relevant in a given lawsuit could not alone be enough to establish an implied
waiver. If it could, then the privilege would lose much of its protective force
because “privileged information may be in some sense relevant in any
lawsuit.”
Id. at 575 (emphasis in original) (citation omitted). In concluding that the lawyer’s affidavit
under scrutiny did not “assert[ ] claims or defenses focusing on advice that [he] gave to
State Farm,” the Court specifically cited to the affidavit’s lack of reference to any advice the
lawyer gave to State Farm or to any communications between him and State Farm and
held, therefore, that the affidavit did “not concern any privileged information.” Id. at 576
(emphasis added). Most importantly, the Court held that State Farm had not placed
privileged communications at issue by filing the affidavit because “State Farm does not
offer the affidavit in support of any claim or defense that depends on privileged information
or attorney advice.” Id. (emphasis added).
Hence, Defendant’s argument fails. Colorado law recognizes that at-issue implied
waiver of the attorney-client privilege can only occur when the privilege holder is relying on
privileged information to support a claim or defense, based on the long-standing concern
for unfairness that results from allowing a privilege-holder to “use as a sword the protection
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which is awarded him as a shield.” DiFede, 780 P.2d at 544. The Discovery Master
conducted a full in camera review of the privileged documents and “remain[ed] unable [to]
see where Gates has relied upon or otherwise put in issue any of its logged lawyer-client
communications as the basis for Gates’ allegedly delayed filing.” Final Order [#138] at 25.
The Discovery Master’s conclusion that the documents remain protected because Plaintiff
did not impliedly waive the attorney-client privilege by putting them “at issue” is sound
under Colorado law. Defendant’s objection regarding the at-issue waiver is, therefore,
overruled.2
B.

Production of Discoverable Facts from Privileged Documents
Defendant further argues that the method by which the Discovery Master directed

Plaintiff to produce non-privileged information from the category A2 documents “is not
responsive to a request under Rule 34,” and raises unanswered questions. Partial
Objection [#144] at 10-11. Plaintiff responds that “compiling facts is a reasonable remedy
that reduces the burden of producing redactions.” Response to Partial Objection [#151] at
8.
The Court agrees with Defendant. Defendant propounded a request for these
documents under Fed. R. Civ. P. 34. Nothing in the Rule endorses the methodology
directed here; instead, the Rule appears to require that a responding party either object to

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Defendant also contends that the Discovery Master erred by concluding that because
Defendant “was able to obtain discovery on matters put in issue by Gates through deposition of
Gates’ employees,” the at-issue waiver argument should be rejected. Partial Objection [#144] at
8. I disagree that the Discovery Master based his Final Order on any such conclusion. Instead,
he held that because Defendant “has been able to depose a number of Gates’ witnesses on the
very topic it seeks now to discover from Gates’ counsel,” Defendant’s argument that the disputed
documents are the exclusive source of the information needed by Defendant was undermined.
Final Order [#138] at 26.

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production, allow inspection of responsive documents, or produce the documents. Rule
34 provides:
For each item or category, the response must either state that inspection and
related activities will be permitted as requested or state with specificity the
grounds for objecting to the request. The responding party may state that it
will produce copies of documents or electronically stored information instead
of permitting inspection.
Fed. R. Civ. P. 34(b)(2)(B). Although Plaintiff is entitled to redact attorney-client privileged
information and attorney work product, Plaintiff must nevertheless produce the responsive
documents in redacted form. See, e.g., Johnson v. Old Republic Ins. Co., No. 10-cv-0460JHP-FHM, 2012 WL 2368999 at *2 (N.D. Okla. June 21, 2012) (ordering production of
redacted documents after in camera review); New Jersey v. Sprint Corp., No. 03-2071JWL, 2006 WL 8440758 at *3 (D. Kan. Dec. 28, 2006) (same); Bonanno v. Quizno’s
Franchise Co., LLC, No. 06-cv-02358-WYD-KLM, 2008 WL 1801173 at *5 (D. Colo. April
18, 2008) (same).
Accordingly, Defendant’s objection regarding the method of production by Plaintiff
of non-privileged information from the category A2 documents is sustained.
III. Conclusion
For the reasons explained above, Defendant’s Partial Objection to Order of
Special Master on CRP’s Motion to Compel [#144] is SUSTAINED in part and
OVERRULED in part.
IT IS ORDERED that on or before June 5, 2019, the parties shall comply with the
Discovery Master’s Final Order [#138], except page 29, paragraphs (2)(b) and (c).
IT IS FURTHER ORDERED that on or before June 5, 2019, Plaintiff shall produce

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to Defendant category A2 documents redacted in accordance with this Order.
Dated: May 30, 2019

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