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Lazar v. Riggs11/10/2003
nd Cas. Co. v. Dist. Court, 718 P.2d 1044 (Colo. 1986). In my view, both doctrines must be analyzed in the context of this case.
II. Background
The attorney-client privilege and the work product exemption are distinct but related theories, arising out of similar policy interests. A v. Dist. Court, 550 P.2d at 327 (citing to Hickman v. Taylor, 329 U.S. 495 (1974)). Generally, the attorney-client privilege protects communications between the attorney and the client, and the promotion of such confidences exists for the benefit of the client. Id.; see also 17 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 250:4 (3d ed. 2000, updated 2003) ("Evidentiary privileges have typically focused on relationships in which the public interest is served by encouraging openness: marital relationships, attorney-client relationships, doctor-patient relationships, clergy-confessor relationships, and so on."). On the other hand, the work product doctrine generally applies to documents and tangible things prepared in anticipation of litigation or for trial, and its goal is to ensure the privacy of the attorney's trial preparation work from opposing parties and counsel. A, 550 P.2d at 327; see also Denver Post Corp. v. Univ. of Colorado, 739 P.2d 874, 881 (Colo. 1987) ("The work product privilege exists not to protect a confidential relationship, but to promote fairness in the adversary system by safeguarding the fruits of an attorney's trial preparations, which have been paid for by his client, from being used without cost by his opponent.").
A. The Work Product Doctrine
First, it is important to recognize what materials may be characterized as work product. Normally, materials entitled to protection contain an attorney's mental processes reflected in interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs. People v. Martinez, 970 P.2d 469, 475 (Colo. 1998) (quoting Hickman, 329 U.S. at 511). This court has recognized, however, that the work product doctrine includes the work of investigators and other agents of counsel. Id. at 474 n. 11 (citing to United States v. Nobles, 422 U.S. 225, 238-239 (1975)). Furthermore, although statements by witnesses do not contain an attorney's mental impressions or strategies, they may constitute work product by virtue of their compilation by an attorney. Id. at 475. Thus, the mere fact that Riggs made this statement to a non-attorney insurance adjuster, or the fact that his statement does not contain the mental impressions of an attorney, does not per se preclude the statements from qualifying as work product.
After determining what materials may constitute work product, the next step is determining whether the materials were prepared in anticipation of litigation. C.R.C.P. 26(b)(3) protects from discovery materials prepared in anticipation of litigation unless the party seeking discovery establishes a substantial need for the materials and an inability to obtain the materials from other sources without undue hardship. Unlike materials prepared in anticipation of litigation, materials prepared in the ordinary course of business are discoverable. Hawkins v. Dist. Court, 638 P.2d 1372, 1377 (Colo. 1982). It is the burden of the party contesting discovery to establish that the document was prepared in anticipation of litigation. See id. at 1375. However, once the party contesting discovery establishes that the document was indeed prepared in anticipation of litigation, the burden shifts to the party seeking discovery to show substantial need and undue hardship. Id. at 1376.
In Hawkins, we set forth a standard for determining whether materials are prepared in anticipation of liti
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