In Re 2015-2016 Jefferson County Grand Jury, and concerning grand jury witness Amy Brimah.
Proceeding Pursuant to C.A.R. 21 Jefferson County District
Court Case No. 15CR2 Honorable Dennis Hall, Judge
Attorneys for Petitioner Amy Brimah: Richilano Shea LLC John
M. Richilano Keyonyu X. O'Connell Denver, Colorado.
Attorneys for Petitioner M.W.: McDermott Stuart & Ward
LLP Sean McDermott Denver, Colorado.
Attorneys for Respondent The People of the State of Colorado:
Peter A. Weir, District Attorney, First Judicial District
Donna Skinner Reed, Chief Appellate Deputy District Attorney
Lisa Scanga, Deputy District Attorney Golden, Colorado
Attorneys for Amicus Curiae Colorado Bar Association:
Mountain Law Group, LLC John W. Dunn Vail, Colorado Holland
& Hart, LLP Marcy G. Glenn Denver, Colorado
Attorneys for Amicus Curiae Colorado Defense Lawyers
Association: Gordon & Rees LLP John M. Palmeri John R.
Mann Heather K. Kelly Megan M. Rose Denver, Colorado
Attorneys for Amicus Curiae Colorado District Attorneys'
Council: Thomas R. Raynes, Executive Director Timothy Lane,
Staff Attorney Denver, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers
Association: Haddon, Morgan and Foreman, P.C. Norman R.
Mueller Rachel A. Bellis Denver, Colorado.
This original proceeding arises from a grand jury
investigation of petitioner M.W. and his company, I.I. The
People suspected that I.I. was manufacturing and distributing
a cigarette product illegally sprayed with synthetic
cannabinoids. As part of the grand jury investigation, the
People issued a subpoena duces tecum to I.I's attorney
Amy Brimah, ordering her to produce all materials related to
any representation by her of I.I. and M.W. The People also
requested a hearing, outside the presence of the grand jury
and before a judge.
Brimah and M.W. moved to quash the subpoena, arguing that the
materials were protected by the attorney-client privilege.
The People asserted that the crime-fraud exception to the
attorney-client privilege applies. Brimah and M.W. disagreed
and countered that the district court judge would at least
need to review each document to determine whether to strip
any document of its privileged status.
The district court denied Brimah's and M.W.'s
motions. It declined to review the documents individually and
ordered Brimah to produce the requested materials. Brimah and
M.W. petitioned this court for a rule to show cause. We
issued the rule.
We hold that a two-step process applies when a party seeks
disclosure of attorney-client-privileged documents under the
crime-fraud exception. First, before a court may review the
privileged documents in camera, it must "require a
showing of a factual basis adequate to support a good faith
belief by a reasonable person that wrongful conduct
sufficient to invoke the crime or fraud exception to the
attorney-client privilege has occurred." Caldwell v.
Dist. Court, 644 P.2d 26, 33 (Colo. 1982). Second, the
court may strip a communication of privilege only upon a
showing of probable cause to believe that (1) the client was
committing, or attempting to commit, a crime or fraud and (2)
the communication was made in furtherance of the putative
crime or fraud. Because the People failed to make such a
showing here, the district court abused its discretion in
stripping the documents of privilege.
Brimah and M.W. also argue that the district court should
have required the People to disclose the applications and
authorizations for the intercepts on which it premised its
subpoena under Colorado's wiretap statute, specifically
section 16-15-102(9), C.R.S. (2017). On the facts present
here, we agree. Therefore, we reverse the district court on
this point as well.
Accordingly, we make the rule to show cause absolute, and we
remand this case to the district court for further
proceedings consistent with this opinion.
Facts and Procedural History
In 2014, the People began investigating M.W. and his company,
I.I., based on their suspicion that I.I. was manufacturing
and distributing a cigarette product, NBT Herbal Cigarettes,
illegally laced with synthetic cannabinoids. I.I.'s
cigarette-distribution activities waned or even stopped in
late 2015 as a result of police intervention, though the
timing of this wind-down isn't clear. It is undisputed
that, at least by December 2, 2015, when the police executed
a search warrant and seized items, I.I.'s distribution of
cigarettes had been "substantially curtailed" (as
conceded by counsel for the People at a hearing on August 11,
On June 25, 2016, the People served Amy Brimah, counsel for
I.I., with a subpoena duces tecum, ordering her to appear in
court three days later and to produce "[a] copy of any
file, whether physical or electronic, that pertains to the
representation of [M.W.], [I.I.], and NBT Herbal Cigarettes
from February 19, 2013 to the present." The subpoena
said, "There will be a hearing on whether these
documents are privileged."
Along with the subpoena, the People served a notice of
hearing for the district court to determine
whether the crime-fraud exception to the attorney-client
privilege applied to communications between M.W. and Brimah.
The People identified three categories of privileged
materials at issue: (1) emails between M.W. and Brimah, dated
between February 19, 2013, and November 4, 2015, that were in
the People's possession though unread; (2) intercepted
phone communications between M.W. and Brimah that were in the
People's possession though unheard; and (3) Brimah's
files pertaining to M.W. and I.I., as requested in the
subpoena. As "an offer of proof that the crime-fraud
exception applies, " the People provided summaries of
some of M.W.'s phone calls with business associates (not
with Brimah) that police had intercepted. The summarized
calls had been made on July 14, September 22, and October 1
Brimah and M.W. filed motions to quash the subpoena, on which
the district court held a hearing. According to Brimah and
M.W., it was not until that hearing that they learned the
subpoena was issued as part of a grand jury proceeding. The
court set a second hearing, in order to give Brimah and M.W.
additional time to formulate their arguments in opposition.
The People then issued a new subpoena duces tecum, this time
clearly identified as a grand jury subpoena. The language of
the subpoena changed as well. It required Brimah to appear in
court on July 18, 2016, and to produce "any and all
documents, books and records and/or files, whether physical,
electronic, or other format, that pertains [sic] to the
representation of [M.W.], [I.I.], and/or NBT Herbal
Cigarettes, including but not limited to contracts, account
statements, notices, communications, or other material in
Brimah and M.W. again responded with motions to quash. They
renewed their objection based on privilege and also asserted
that the subpoena was founded on intercepted communications
authorized by wiretap orders that the People had failed to
disclose to them, in violation of section 16-15-102(9).
(Section 16-15-102(9) requires that, before the contents of
any intercepted wire, oral, or electronic communication may
be admitted in any trial, hearing, or other proceeding in a
state court, each party must be furnished with a copy of the
application and court order authorizing the interception.)
The district court denied the motions to quash. Because there
was "abundant evidence" Brimah was engaged in
routine legal work furthering I.I.'s business and the
only business of I.I. was illegal, the court
reasoned that the materials sought by the People's
subpoena must have been made for the purpose of aiding in the
commission of a continuing crime, and therefore were not
protected by the attorney-client privilege. Under these
circumstances, the court considered an in camera
review of the subpoenaed materials
A problem with service of the subpoena prompted repetition of
this series of events. In her new motion to quash, Brimah
added the argument that the crime-fraud exception could not
apply to any attorney-client communications after I.I.'s
cigarette distribution had been curtailed in late 2015. She
pointed out that the crime-fraud exception applies only to
communications in furtherance of a continuing or
future crime. Because I.I.'s only activity alleged
to be criminal had ceased as a result of government
intervention in late 2015, Brimah argued, any communications
afterwards could not have been in furtherance of a continuing
or future crime.
Ultimately, the court reiterated its previous order: Because
there was no suggestion in the evidence that I.I. engaged in
any lawful activity, all of Brimah's materials
pertaining to I.I. fell within the crime-fraud exception. The
court once again declined to conduct an in camera review of
the subpoenaed materials, because it concluded the materials
"ipso facto" fell within the exception. The court
also concluded that section 16-15-102(9) does not pertain to
grand jury proceedings.
Brimah and M.W. jointly petitioned this court to exercise its
original jurisdiction and issue a rule to show cause why
their confidential attorney-client communications and files
should be disclosed under the crime-fraud exception, and why
they are not entitled to disclosure of the wire intercept
authorization materials under section 16-15-102(9). We issued
the requested rule.
We may choose to exercise our original jurisdiction when an
ordinary appellate remedy would be inadequate. C.A.R.
21(a)(1). We have done so when a party "is wrongfully
required to disclose confidential records, [such that] the
damage will occur upon disclosure, regardless of any ruling
on appeal." People v. Sisneros, 55 P.3d 797,
799 (Colo. 2002).
An ordinary appellate remedy would be inadequate here: Once
provided to the
and the grand jury, the confidential materials sought by the
subpoena cannot be retracted. Accordingly, we choose to
exercise our original jurisdiction in this instance.
This case requires us to address two issues: first, the
quantum of proof of wrongdoing required to strip documents of
the attorney-client privilege under the crime-fraud
exception, and second, the applicability of section
16-15-102(9) on these facts. We address each issue in turn
The District Court Abused Its Discretion in Declaring All
Subpoenaed Documents to Be Subject to the Crime-Fraud
Exception Without Conducting In Camera Review
To address this first issue, we begin by explaining the
attorney-client privilege and the crime-fraud exception to
the privilege. We then review our precedent concerning the
privilege and the exception. We conclude that only a minimal
showing of wrongful conduct sufficient to invoke the
crime-fraud exception is required before a trial court may
order a party to produce ostensibly privileged documents for
in camera review, but the party seeking to overcome privilege
must meet a more demanding standard before the trial court
may strip the documents of privilege. This second standard
requires probable cause to believe that (1) the client was
committing, or attempting to commit, a crime or fraud and (2)
the communication was made in furtherance of the putative
crime or fraud. Because the district court stripped the
documents of privilege without applying this standard to each
communication, it abused its discretion.
Standard of Review
We review the district court's ruling here for an abuse
of discretion. See People v. Brothers, 2013
CO 31, ¶ 7, 308 P.3d 1213, 1215. Under this standard, we
will reverse the district court only if its decision was
manifestly arbitrary, unreasonable, or unfair. People v.
Hoskins, 2014 CO 70, ¶ 17, 333 P.3d 828, 834.
A trial court has discretion to order compliance with a grand
jury subpoena duces tecum, despite a motion to quash, but in
ruling on such a motion the court must ensure that the
subpoena does not invade those constitutional rights or
testimonial privileges invoked. See Losavio v. Robb,
579 P.2d 1152, 1155 (Colo. 1978). The court may also decline
to require compliance if it concludes the subpoena is
unreasonable or oppressive (or for other reasons irrelevant
here). § 16-5-204(4)(i), C.R.S. (2017) (listing
"The attorney-client privilege is the oldest of the
privileges for confidential communications known to the
common law." Upjohn Co. v. United States, 449
U.S. 383, 389 (1981). The 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. Madera, 112 P.3d 688, 690 (Colo. 2005)
(quoting People v. Lesslie, 24 P.3d 22, 26
(Colo.App. 2000)). In ...