Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Fox

Supreme Court of Colorado, En Banc

December 3, 2018

In Re Kayla Fox, Plaintiff:
v.
William Alfini, Jr., D.C.; and Brady Chiropractic Group, P.C. Defendants

          Original Proceeding Pursuant to C.A.R. 21 Mesa County District Court Case No. 15CV30797 Honorable Lance Phillip Timbreza, Judge

          Attorneys for Plaintiff: Leventhal & Puga, P.C. James Leventhal Bruce L. Braley Brian N. Aleinikoff Benjamin I. Sachs Denver, Colorado.

          Attorneys for Defendant William Alfini, Jr., D.C.: Hershey Decker Drake C. Todd Drake Kari M. Hershey Matthew George Lone Tree, Colorado

          Attorneys for Defendant Brady Chiropractic Group, P.C.: Messner Reeves LLP Katherine Otto Kendra N. Beckwith Tanner J. Walls Denver, Colorado

          Attorneys for Amicus Curiae The Colorado Trial Lawyers Association: The Komyatte Law Firm LLC David P. Mason Lakewood, Colorado.

          Lowrey Parady LLC J. Bennett Lebsack Denver, Colorado

          Attorneys for Amicus Curiae The Colorado Defense Lawyers Association: Wheeler Trigg O'Donnell LLP Theresa R. Wardon Abigail S. Wallach Kevin D. Homiak Brian S. Osterman Denver, Colorado.

          OPINION

          GABRIEL JUSTICE.

         ¶1 In this original proceeding pursuant to C.A.R. 21, we review the district court's order compelling production of a recording of petitioner Kayla Fox's initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that Fox raised in a motion for reconsideration.

         ¶2 We issued a rule to show cause and now conclude that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party's presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court's finding that Fox had not shown that her parents' presence was reasonably necessary to facilitate the communication with counsel, we perceive no abuse of discretion in that court's ruling that the recording at issue was not protected by the attorney-client privilege.

         ¶3 We further conclude that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that Fox raised in her motion for reconsideration.

         ¶4 Accordingly, we discharge the rule to show cause.

         I. Facts and Procedural Background

         ¶5 Fox, who was then in her early thirties, became seriously ill immediately after receiving chiropractic treatment from Dr. William Alfini, Jr. at the offices of the Brady Chiropractic Group, P.C. in Grand Junction. A massage therapist in the office called Fox's mother, reported that Fox had the flu, and told Fox's mother to come pick up her daughter. Fox's parents arrived shortly thereafter. Realizing that their daughter was gravely ill, they rushed her to the Community Hospital where she received emergency care and treatment for what turned out to be a stroke.

         ¶6 At some point thereafter, Fox and her parents contacted attorney James Leventhal to discuss a possible malpractice action by Fox against Dr. Alfini and the Brady Chiropractic Group (collectively, "defendants"). Leventhal recorded at least a portion of this initial consultation in order to make sure that he did not miss anything as he sought to learn the facts leading to Fox's stroke and the harm and damages that resulted from it. Notably, the record reveals no effort by Leventhal to determine before conferring with Fox and her parents whether Fox's stroke caused any cognitive deficiencies such that her parents' presence was necessary to facilitate the consultation.

         ¶7 Subsequently, Fox filed a lawsuit against defendants for, among other things, professional negligence. Discovery ensued, and, during a deposition of Fox's mother, defendants learned that Leventhal had recorded his initial consultation with Fox and her parents. Defendants jointly moved to compel the production of this recording or, in the alternative, for the court's in camera review of the recording to determine if any part of it was discoverable. In their motion, defendants argued that the presence of third parties "vitiate[d] a claim of attorney-client privilege" and that, therefore, the recording was discoverable.

         ¶8 Fox opposed defendants' motion to compel, asserting that she had diminished mental capacity as a result of her stroke. She thus contended that her parents' presence was necessary to facilitate her communications with Leventhal and did not destroy the attorney-client privilege. In support of this argument, Fox attached a neuropsychological evaluation performed fifteen months after her stroke and over a year after the consultation with Leventhal that concluded that she was "likely experiencing ongoing mild difficulties, weaknesses, and/or impairments with her neuropsychological functioning." This evaluation also found "notable," however, that Fox was able to maintain her employment as a middle school counselor. Fox also submitted affidavits from herself and her parents attesting that she believed that she would need her parents' assistance because she did not feel that she had the mental capacity to make decisions that were in her best interest regarding any lawsuit.

         ¶9 In response to these after-the-fact suggestions of Fox's diminished capacity, defendants submitted records of Fox's social media communications after her stroke and both before and after the recorded consultation took place. In these posts, Fox stated that (1) her caregivers had told her that it was as if she had never had a stroke, "as great as [her] nervous system and brain are," and "it's as if nothing . . . happened"; (2) "I am doing well and I will make a full recovery"; and (3) "They told me this morning that they expect me to make a full recovery and that I am a medical mystery because my stroke symptoms seem to have disapprared [sic]."

         ¶10 The district court ultimately concluded, "I do not find [Fox's] capacity diminished such that the presence of her parents was necessary to assist in the representation." The court thus ruled that the attorney-client privilege did not protect the recording and granted defendants' request to compel the production of that recording.

         ¶11 Fox then moved for reconsideration. In this motion, she argued, for the first time, that the attorney-client privilege attached to the recording because (1) her parents were prospective clients of Leventhal's and (2) her parents were her agents and shared common legal interests with her. She further argued, also for the first time, that the recording was protected under the work-product doctrine and that defendants had not demonstrated substantial need to discover that recording.

         ¶12 The district court ultimately denied Fox's motion to reconsider, noting that "any arguments raised could have been raised during the pleading stage or at the hearing."

         ¶13 After obtaining a stay so that she could petition this court for relief, Fox filed the present C.A.R. 21 petition, and we issued a rule to show cause.

         II. Analysis

         ¶14 We begin by discussing our jurisdiction to hear this matter and the standard of review for discovery orders. We then proceed to review the district court's findings concerning the attorney-client privilege, and we conclude that the court did not abuse its discretion in ordering the discovery of the recording at issue. Finally, we review the district court's denial of Fox's motion for reconsideration, and we conclude that the court did not abuse its discretion in refusing to consider arguments that Fox had raised for the first time in her motion for reconsideration.

         A. Original Jurisdiction and Standard of Review

         ¶15 Exercise of our original jurisdiction under C.A.R. 21 is within our sole discretion. Fognani v. Young, 115 P.3d 1268, 1271 (Colo. 2005). An original proceeding under C.A.R. 21 is an extraordinary remedy that is limited in purpose and availability. Wesp v. Everson, 33 P.3d 191, 194 (Colo. 2001). Although discovery orders are generally interlocutory in nature and thus reviewable only on appeal, we have exercised our original jurisdiction to review whether a district court abused its discretion in circumstances in which a remedy on appeal would be inadequate. Gateway Logistics Inc. v. Smay, 2013 CO 25, ¶ 11, 302 P.3d 235, 238.

         ¶16 Here, the district court ordered Fox to produce a recording that she claims is protected by the attorney-client privilege. Damage to Fox from the erroneous production of this recording could not be cured by appeal because the damage would occur upon disclosure to defendants regardless of the outcome of an appeal from a final judgment. Id. at ¶ 12, 302 P.3d at 239. We therefore conclude that the exercise of our original jurisdiction is appropriate in this case.

         ¶17 We review a district court's discovery orders for an abuse of discretion. Id. At ΒΆ 13, 302 P.3d at 239. A district court abuses its discretion when its decision ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.