We have all seen it. Months go by with very little treatment and the injuries/symptoms are minimal, until plaintiff retains an attorney. Then, suddenly, there are a slew of new and costly treatments, new claims and spontaneous diagnoses. It is clear in some cases, once an attorney is retained, it can alter not only the claimed injuries and treatment, but the course of the case itself. This is why it is crucial to ask the question during deposition: “When did you retain counsel in this matter?”
Proper Objections to the Question – There are None!
In anticipation of asking this question, you as a defense attorney should automatically expect fervent “relevance” and “not likely to lead to the discovery of admissible evidence” objections and even the improper instruction not to answer the question based on attorney-client privilege. As long as the question posed asks for an independent fact, such as the date of retention, and not the contents of that initial communication, there is no proper objection or instruction not to answer.
Applicable Colorado Law
Colorado case law holds “[m]ere statements of fact are not protected by the attorney client privilege. People v. Trujillo, 144 P.3d 539, 542 (Colo.2006). Trujillo, in citing Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo.2000), notes that “the privilege protects only the communications to the attorney; it does not protect any underlying and otherwise unprivileged facts that are incorporated into a client’s communication to his attorney.” “The burden of establishing the applicability of the attorney-client privilege rests with the claimant of the privilege.” Black v. Southwestern Water Conservation Dist., 74 P.3d 462, 467 (Colo.App.2003).
Further, because the purpose of the attorney-client privilege is to encourage clients to confide in their attorneys, this privilege applies only “[t]o statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential.” Lanari v. People, 827 P.2d 495 (Colo.1992); See also, D.A.S. v. People, 863 P.2d 291, 295 (Colo.1993) (noting that there must be circumstances indicating the intention of secrecy for a communication to be privileged); People v. Tippett, 733 P.2d 1183, 1192 (Colo.1987). Here, the question of the date of retention is not a communication or even a “statement” made to counsel in confidence. This question instead asks for an independent fact, separate and aside from any actual communication between plaintiff and his/her attorney.
While it is only one question throughout the entirety of your deposition of plaintiff, the answer can provide a powerful and useful tool throughout discovery and can be quite valuable at the time of trial. Ask it, and know how to field the objections to get the answer.