Original Proceeding Pursuant to C.A.R. 21 Mesa County
District Court Case No. 15CV30797 Honorable Lance Phillip
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
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
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.
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.
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
Accordingly, we discharge the rule to show cause.
Facts and Procedural Background
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.
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.
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
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.
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
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.
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.
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
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.
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.
Original Jurisdiction and Standard of Review
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.
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.
We review a district court's discovery orders for an
abuse of discretion. Id. At ¶ 13, 302 P.3d at
239. A district court abuses its discretion when its decision