Summary
The Colorado Supreme Court held that recorded statements obtained by Safeway's risk management and loss control department during its ordinary investigation of a personal injury claim were not protected by the attorney work-product privilege. The court also held that the attorney-client privilege did not apply because no Safeway attorney was involved in the investigation. The court made the rule to show cause absolute and ordered production of the statements.
Topics
Practice areas
Questions Presented
- Whether recorded statements obtained by Safeway's risk management and loss control department during its ordinary investigation of a third-party injury claim were protected by the attorney work-product privilege.
- Whether the recorded statements were protected by the attorney-client privilege when no Safeway attorney was involved in the investigation that produced them.
- Whether the trial court erred by denying Compton's motion to compel production of the statements.
Holdings
- The statements were not protected by the attorney work-product privilege because Safeway failed to show that they were prepared or obtained in contemplation of specific litigation, rather than in the ordinary course of its claim investigation.
- The statements were not protected by the attorney-client privilege because they were not communications made in the course of obtaining counsel, advice, or direction concerning Safeway's rights or obligations, and no Safeway attorney was involved in the investigation.
Key quotations
“Because the statements were made to Safeway's own risk management and loss control department during the ordinary course of its claim investigation, we hold that they are not protected by the attorney work-product privilege.” (136)
“We also hold that the statements do not fall within the scope of the attorney-client privilege, as Safeway's attorneys were not involved in the investigation that produced the statements.” (136)
“To overcome this presumption, the party opposing discovery must show that the witness statements were obtained after a specific claim had arisen, for the purpose of defending that claim, and at a time when "there was a substantial probability of immanent litigation over the claim or a lawsuit had already been filed."” (137)
“In short, the Statements were prepared at the direction of a Safeway claims adjuster in the ordinary course of Safeway's ordinary claim investigation, not in anticipation of litigation.” (138)
“Therefore, any reliance on this privilege by the trial court was also error.” (139)
Factual background
Compton injured his ankle after tripping over a pallet jack while delivering products to a Safeway store. Safeway, which was self-insured and operated its own risk management and loss control department, investigated the incident and obtained recorded statements from two employee witnesses. The statements were taken before Safeway denied Compton's claim and before litigation was filed. Safeway later withheld the statements in Compton's personal-injury action, asserting work-product and attorney-client privileges.
Procedural history
Compton sued Safeway for personal injuries arising from a fall at a Safeway store and requested two recorded statements taken from Safeway employees who witnessed the incident. Safeway withheld the statements based on the attorney work-product and attorney-client privileges. The trial court denied Compton's motion to compel, after which Compton filed a C.A.R. 21 petition; the Supreme Court issued a rule to show cause and made it absolute.
Remand instructions
The trial court was ordered to vacate its prior ruling denying Compton's motion to compel and to grant the motion to compel discovery of Revello's and Spriggs's recorded statements.