United States: At Issue Waiver Of The Attorney-Client Privilege

The attorney-client privilege is revered but not absolute. A party may waive the protection of the privilege, both expressly and by implication. The burden of proving waiver is on the party seeking to overcome the privilege.¹

One form of waiver is variously called the "at issue waiver," "implied waiver," or the "issue injection exception."² For at issue waiver to apply, the party asserting privilege must place in issue a confidential communication going directly to the claim or defense.³ The at issue waiver recognizes that it would be "inequitable to permit the party to use the attorney-client privilege as a sword by placing the advice of the attorney at issue while permitting the same party to use the attorney-client relationship as a shield to prevent inquiry into the asserted claim or defense."⁴

At issue waiver is controversial and often complex. The case law is not consistent. Colorado has adopted a standard that is widely followed in other jurisdictions yet criticized in other jurisdictions as insufficiently protective of the attorney-client privilege. This article discusses the state of the law on at issue waiver in Colorado and in the U.S. District Court for the District of Colorado. It then discusses the most difficult issue in the at issue waiver analysis, namely determining whether the party asserting privilege has indeed injected protected communications into the case. The article concludes by attempting to elicit some level of consistency from the case law arising from common at issue waiver situations.

The starting point for discussion of the at issue waiver in Colorado is the 1989 Colorado Supreme Court case of Mountain States Telephone and Telegraph Co. v. DiFede.⁵ Anthony DiFede was diagnosed with terminal cancer. His way of organizing his worldly affairs was to divorce and disinherit his wife, Susan. He had his lawyer, Raymond Wilder, draw up a separation agreement that allowed Anthony to change the beneficiary on his life insurance policy and caused his wife to relinquish her right to certain real property and to inherit under his will. Meeting at Mr. Wilder's office, Anthony and Susan DiFede signed the agreement and tore up Anthony's will. Anthony then conveyed the real estate to his parents and made them the beneficiaries of his life insurance policy and under a new will.

After Anthony DiFede's death, Susan DiFede challenged the separation agreement authorizing the property transfers. She claimed that Mr. Wilder fraudulently induced her to sign the agreement by incorrectly stating to her at the meeting that the agreement was unenforceable until approved by the court, which was at least ninety days away. She signed the agreement, she said, only because she knew her husband would not last the ninety days. She was right about her husband's time on earth but wrong about the legal requirement of court approval.

In the El Paso County District Court litigation, the parties disputed Susan DiFede's reliance on any such incorrect statement of law by Mr. Wilder, especially because ten days after the meeting with Mr. Wilder, Susan DiFede consulted another lawyer, Jack Foutch, about the separation agreement. At trial, Susan DiFede refused to answer questions about her consultation with Mr. Foutch, citing attorney-client privilege. The trial court sustained Susan's objections to that line of questioning. Finding Wilder's version of the meeting more credible than Susan's, the trial court entered judgment notwithstanding the verdict against Susan DiFede on this claim.⁶

Susan appealed. The Court of Appeals reversed and remanded for a new trial, holding that Susan's statements to Mr. Foutch were not privileged.⁷ The Colorado Supreme Court took certiorari on the privilege issue and another issue not relevant here.

The Colorado Supreme Court reversed the Court of Appeals, holding that Susan's statements were privileged. The Court went on to address whether Susan impliedly waived the privilege by placing in issue a confidential communication going directly to a claim or defense. To analyze the issue, the Court adopted a three-part test originally formulated in a 1975 decision from the U.S. District Court for the Eastern District of Washington, Hearn v. Rhay.⁸ Under the Hearn test, implied waiver is appropriate where the following factors are present:

1. assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party;
2. through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and
3. application of the privilege would have denied the opposing party access to information vital to his defense.⁹

Applying the Hearn test, the Court found that Susan DiFede waived the privilege. The Court explained that "[w]hen she alleged that she reasonably relied on Raymond Wilder's incorrect statement of the law, Susan injected her knowledge or lack of knowledge of the correct statement of the law as a crucial issue relevant to her claim of fraud-in-the inducement. Only Jack Foutch and Susan know whether Jack Foutch disabused her of the incorrect notion that the separation agreement was not immediately enforceable."¹⁰ The Court further reasoned that it would be unfair to allow Susan to "thrust her lack of knowledge of the correct state of the law" into the case then deny the opposing parties' ability to negate that lack of knowledge.¹¹ The Court directed the Court of Appeals to reinstate the trial court's judgment against Susan.

The Colorado Court of Appeals applied DiFede in the 1996 case of People v. Sickich.¹² In Sickich, the defendant appealed the trial court's refusal to permit him to withdraw his plea of guilty to first-degree murder of a deputy sheriff. The defendant requested withdrawal of the plea on the grounds that the judge failed to explain the elements of the charge, and the defendant's cognitive abilities were so impaired by pain, medication, stress, and depression that his plea was not knowing or voluntary. The defendant claimed that the trial court erred in admitting the testimony of his former counsel notwithstanding the attorney-client privilege.

The Court of Appeals held that the defendant impliedly waived the privilege because these claims directly contradicted statements made in the written plea agreement signed by defense counsel. "Hence, because defendant put in issue what advice he did or did not receive from counsel, as well as his own understanding of the proceedings, he waived the attorney-client privilege with respect to his discussions with counsel on these topics."¹³ Further, "defense counsel's testimony was limited to his observations of defendant's condition at the time of his guilty plea and to confirm what was stated in the written agreement,"¹⁴ thereby staying within the limits of the waiver.

Four decisions of the U.S. District Court for the District of Colorado apply the Hearn test. In FDIC v. Wise,¹⁵ Chief Judge Sherman G. Finesilver adopted Hearn in the course of ordering the FDIC to produce privileged documents reflecting communications between regulators and their counsel. Chief Judge Finesilver reasoned that the FDIC placed those communications at issue by alleging that Silverado Banking, Savings and Loan Association misled the regulators, thereby injecting into the case the "actions, knowledge, and beliefs of the regulators."¹⁶ In addition, the court found that the defendants' review of the documents was vital to their defense of the allegations, and that allowing the FDIC to assert privilege to protect disclosure would be manifestly unfair.¹⁷

Metro Wastewater Reclamation District v. Continental Casualty Co.¹⁸ was an insurance coverage dispute. The defendant-insurers moved to compel production of the plaintiff's correspondence with its counsel in underlying proceedings commenced against the plaintiff by the United States Environmental Protection Agency. Magistrate Judge Bruce D. Pringle first determined that Colorado privilege law applied because federal jurisdiction was premised on diversity of citizenship.¹⁹ The court ultimately ordered production of the documents, reasoning that they "may well have a significant bearing"²⁰ on coverage issues such as whether and when the plaintiff-insured knew that its sludge contained hazardous substances. In addition, if the plaintiff succeeded on the coverage issues, the documents may be necessary to determine the reasonableness of cost and fees incurred in the underlying proceedings and the proper allocation of expenditures between defense costs and indemnity.²¹

Ryall v. Appleton Electric Co.²² was an employment discrimination case in which the plaintiff sought to compel production of interview notes taken by the defendant's chief employment counsel during a prelitigation internal investigation of the allegations. The defendant asserted an affirmative defense of good faith investigation.²³ Judge John L. Kane, Jr. reviewed the magistrate judge's order, applying Hearn, compelling production of the notes over the defendant's privilege and work product objections.

Judge Kane set aside the magistrate's order, reasoning that Hearn applies only to implied waiver of the attorney-client privilege, not the broader protection afforded under the work product doctrine.²⁴ Judge Kane also disagreed with the magistrate's conclusion that upholding the privilege would deny the plaintiff the only means to challenge the sufficiency of the good faith affirmative defense. By interviewing participants in the investigation and obtaining their witness statements, the plaintiff had gained access to a "significant amount" of information pertaining to the investigation, giving her a "fairly complete picture" of the investigation.²⁵ The "better option," the court stated, was to bar from evidence any such privileged information should the defendant attempt to introduce it.²⁶ In a footnote, Judge Kane cited various cases criticizing Hearn for not sufficiently protecting the attorney-client privilege, apparently by way of expressing his agreement with that view.²⁷

Finally, in Aull v. Cavalcade Pension Plan,²⁸ a 1998 decision, the plaintiff in an ERISA class action sought to compel compliance by the law firm of Rothgerber, Appel, Powers & Johnson with a subpoena duces tecum covering documents reflecting its communications with the defendant pension plan. The plaintiff asserted that the defendants waived their privilege (and work product protection) relative to the documents by asserting that they acted in good faith and on the advice of counsel when they changed the pension plan, allegedly in violation of ERISA, and denied a claim.²⁹

Magistrate Judge O. Edward Schlatter rejected this argument. He reasoned that the defendants did not inject their good faith into the case; rather, it was the plaintiff's burden to establish that the defendants acted in bad faith. "The Defendants' denial of such allegations do [sic] not amount to an affirmative act which supports an at issue waiver."³⁰ In addition, deposition testimony to the effect that the plan relied on the advice of counsel in denying the claim did not represent "affirmative action to place the advice of the Plan Committee's counsel at issue,"³¹ presumably because the defendants did not hold up advice of counsel as affirmative defense but only as evidence of the absence of bad faith.

Aull illustrates perhaps the most problematic issue under Hearn: determining which party injected the protected information into the litigation. Case law following Hearn has yielded inconsistent results. Aull shows that mere denial of an averment is not the same as placing the protected information at issue. Nor is it enough to pierce the privilege to assert that a party has placed the contents of privileged documents at issue by making assertions of fact in the litigation that may be contrary to the information contained in the documents.³² Which party carries the burden of proof on a claim or defense may have a bearing on whether that party has injected into the case protected communications going to that issue. Yet burden of proof is not conclusive of an implied waiver.

For example, in Chase Manhattan Bank N.A. v. Drysdale Securities Corp.,³³ a securities fraud case, defendant Arthur Andersen & Co. moved to compel discovery of any opinions by Chase's counsel to its client that may have broken the chain of Chase's reliance on an allegedly fraudulent opinion given by Andersen-not unlike DiFede. Justifiable reliance was an element of the plaintiff's case, but the court rejected the argument that merely filing the complaint placed the protected communications in issue.

It cannot be possible for Andersen to justify breaching Chase's privilege by reason of its own pleading of an affirmative defense. That would give an adversary who is a skillful pleader the ability to render the privilege a nullity. Neither does the possible ultimate allocation of the burden to Chase on the issue of recklessness justify present release of the communications to Andersen.³⁴

Cases involving implied or at issue waiver tend to arise in certain circumstances, some more predictable than others in outcome. Waiver is implied when the client "opens the door" by testifying on direct examination about a privileged communication.³⁵ Claims of ineffective assistance of counsel in criminal cases waive privilege to the extent relevant to the ineffectiveness claim.³⁶

"Courts have not hesitated to find an implicit waiver of the attorney-client privilege when a client asserts reliance on the advice of an attorney as an element of a claim or defense, or where the attorney and client are themselves adverse parties in a lawsuit arising out of the relationship."³⁷ As for the former principle, "an insurer's express assertion of an advice-of-counsel defense in an action for bad faith waives the privilege."³⁸ On the other hand, one court declined to imply waiver where a criminal defendant testified that he lacked intent to commit the crime because, after meeting with his lawyers, he believed his actions were lawful.³⁹

As for the latter principle, legal malpractice claims waive the attorney-client privilege for relevant communications with the defendant attorneys.⁴⁰ Several courts have refused to extend this waiver to successor counsel's communications with the plaintiff client relative to their settlement of the allegedly mishandled claim, at least where the client retains successor counsel after the alleged acts of malpractice.⁴¹

Claims seeking reimbursement of settlement amounts paid in underlying litigation have spawned disputes over implied waiver. Such claims may result in a finding of implied waiver if the claimant must prove the reasonableness of the settlement, especially if proof of reasonableness requires testimony either from the settling party's attorneys or about their conduct in settling the claim.⁴² Also, a client who disputed her attorney's authority to enter into a settlement agreement in the first place waived privilege in a subsequent claim against her for specific performance of the alleged settlement agreement.⁴³

Claims requiring proof of good faith often result in waiver of the privilege. In Hearn itself, the defendant prison officials asserted qualified immunity based on good faith as an affirmative defense to the plaintiff prisoner's action under 42 U.S.C. § 1983 over the conditions of his confinement. The court held that this affirmative defense resulted in an implied waiver of the attorney-clientprivilege, reasoning that the legal advice given to the defendants was "highly probative of whether they acted with malice."⁴⁴ Another court held, in an insurance coverage case, that the insured waived the privilege when it alleged its compliance with conditions precedent under the policy, including duties of cooperation, good faith and fair dealing.⁴⁵

Parties who seek attorneys' fees as damages may impliedly waive the attorney-client privilege as to the entirety of the supporting attorney time records.⁴⁶ Indeed, one court held that if the party seeking fees refused to disclose the redacted portion of its billing statements, its entire claim for fees would be denied.⁴⁷ It is not clear whether this result would obtain when a party seeks to recover attorneys' fees based on the opposing party's assertion of nonmeritorious claims or defenses.

A party who calls an attorney as a witness waives the privilege as to confidential communications related to the testimony.⁴⁸ This rule has been extended to an attorney called as an expert witness. In Herrick Co. v. Vetta Sports, Inc.,⁴⁹ defendant Skadden, Arps, Slate, Meagher and Flom designated Professor Charles W. Wolfram as an expert witness on certain legal ethics issues. Professor Wolfram had, on many prior occasions, rendered opinions to the firm on legal ethics issues. Skadden argued that the waiver extended only to documents considered by the expert witness in rendering his opinion. The court disagreed; any prior inconsistent opinions by Professor Wolfram would be "highly relevant material."⁵⁰ The court ordered Skadden to produce all documents related to advice given to it by Professor Wolfram on the general subject of Professor Wolfram's expert report in the case.

Skadden cannot present Wolfram as an expert on legal ethics and then prevent Wolfram's expert testimony from being effectively impeached by claims of privilege. To do so would be to use Wolfram's status as an expert on matters of legal ethics as both sword and a shield, for the very status which grants his testimony weight with the jury would prevent his testimony from being thoroughly cross-examined.⁵¹

Implied waiver often arises in disputes over application of statutes of limitations. In League v. Vanice,⁵² which the Colorado Supreme Court followed in DiFede, the plaintiff pled his lack of knowledge of certain transactions in order to state claims for breach of fiduciary duty that otherwise would have been barred as untimely. Following Hearn, the Nebraska Supreme Court held that in so pleading, the plaintiff injected his knowledge into the litigation as a crucial issue and waived the attorney-client privilege relative to communications that might negate his alleged lack of knowledge.⁵³

In Ulibarri v. Superior Court,⁵⁴ the plaintiff sued her former psychiatrist for medical malpractice, alleging that the psychiatrist hypnotized her then subjected her to nonconsensual sexual relations. The psychiatrist answered that the sexual relations were consensual. He also asserted in a counterclaim that the plaintiff blackmailed him by threatening to sue him over the affair, as an attorney had advised her to do. The psychiatrist moved for summary judgment on the plaintiff's claims, asserting the bar of a two-year statute of limitations.

The plaintiff responded by asserting that the psychiatrist's "post-hypnotic suggestions caused her to have no memory of their sexual relations until she was hypnotized by a gynecologist" several years after the sexual relations.⁵⁵ When the psychiatrist sought to depose the attorney, whom the plaintiff appears to admit she consulted, the plaintiff asserted the attorney-client privilege. The trial court found, and the Arizona Court of Appeals affirmed, that the plaintiff placed in issue her memory of the sexual relations at the time she consulted with the attorney, thereby waiving this privilege concerning that particular factual issue.⁵⁶

Hearn is the law in Colorado courts and, in cases based on diversity jurisdiction, in the U.S. District Court for the District of Colorado. It would not be surprising if in a non-diversity case, the District of Colorado or the U.S. Court of Appeals for the Tenth Circuit rejected Hearn and adopted a rule rendering implied waiver rare. This prediction derives from Judge Kane's footnote in Ryall v. Appleton Electric Corp.⁵⁷ endorsing cases critical of Hearn, and the Tenth Circuit's reference, in a 1998 case construing Wyoming law, to a modern trend of cases adopting a "restrictive test" in which a litigant waives privilege "if, and only if, the litigant directly puts the attorney's advice in issue in the litigation."⁵⁸

In striving to protect the attorney-client privilege against the broad reach of discovery, the doctrine of at issue waiver presents a danger, an opportunity, and a risk. It is a danger to lawyers and litigants whose privileged communications may belie the essence of a claim or defense. It is an opportunity for the other side to discover perhaps the purest form of the truth: unguarded communications that attorney and client assume will never leave the room. It is a risk of unnecessary invasion of attorney-client communications and shaken confidence in the privilege itself.

At issue waiver forces hard decisions. Compelled disclosure of privileged communications is forever. Denial of compelled disclosure begets doubt about whether the process reached the truth. Avoiding compelled disclosure may cause valid claims or defenses to vanish. The stakes are high in implied waiver.

Alec Rothrock practices law with the Englewood, CO firm of Burns, Figa & Will, PC. Mr. Rothrock is Ethics Editor of Trial Talk, a member of the CBA Ethics Committee and is frequently called upon to address professional groups on ethics issues.

© Alec Rothrock All Rights Reserved

1 Mountain States Telephone and Telegraph Co. v. DiFede, 780 P.2d 533, 542 (Colo. 1989).

2 Baltimore Scrap Corp. v. The David J. Joseph Co., No. L-96-827, 1996 U.S. Dist. LEXIS 18617, *75 (D. Md. September 17, 1996).

3 Mountain States Telephone and Telegraph Co. v. DiFede, 780 P.2d 533, 543 (Colo. 1989).

4 Baltimore Scrap Corp., 1996 U.S Dist. LEXIS 18617 at * 77.

5 780 P.2d 533 (Colo. 1989).

6 Id. at 544.

7 DiFede v. Mountain States Telephone and Telegraph Co., 763 P.2d 298 (Colo. App. 1988), rev'd, 780 P2d 533 (Colo. 1989).

8 68 F.R.D. 574 (E.D. Wash. 1975).

9 780 P.2d at 543-44 (quoting League v. Vance, 221 Neb. 34, 374 N.W.2d 849, 856 (1985) (quoting Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)).

10 Id. at 544.

11 id.

12 935 P.2d 70 (Colo. App. 1996).

13 Id. at 73.

14 id.

15 139 F.R.D. 168 (D. Colo. 1991).

16 Id. at 172.

17 id.

18 142 F.R.D. 471 (D. Colo. 1992).

19 Id. at 476. Accord Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998).

20 Metro Wastewater, 142 F.R.D. at 477.

21 Id.

22 153 F.R.D. 660 (D. Colo. 1994).

23 Id. at 662.

24 id.

25 id. at 663. Accord Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 701-02 (10th Cir. 1998) (applying Hearn in equitable indemnity action subject to Wyoming privilege law, trial court abused discretion in ordering plaintiff's counsel in underlying personal injury cases to appear for deposition and produce files related to settlement of claims; defendant had sufficient access to information regarding reasonableness of settlements).

26 Ryall, 153 F.R.D. at 663.

27 Id.at n. 1. See also Rhone-Poulenc Rorer Inc. v. The Home Indemnity Co., 32 F.3d 851, 864 (3d Cir. 1994) (referring to Hearn as of "dubious validity"). Judge Kane's apparent agreement with cases criticizing Hearn as too liberally implying waiver of privilege seems to conflict with his remark in a 1991 decision that the attorney-client privilege should be abolished altogether. Gerrits v. Brannen Banks of Florida, Inc., 138 F.R.D. 574, 579 (D. Colo. 1991).

28 185 F.R.D. 618 (D. Colo. 1998).

29 Id. at 630.

30 id.

31 id.

32 Baker v. General Motors Corp., 209 F.3d 1051, 1055 (8th Cir. 2000).

33 587 F. Supp. 57 (S.D.N.Y. 1984).

34 Id. at 59. Accord Pippenger v. Gruppe, 883 F. Supp. 1201, 1205 (S.D. Ind. 1994) (following Hearn and Chase, filing of securities action did not waive privilege regarding plaintiff's reliance on defendant's oral representations and omissions; defendant can question plaintiff directly about his knowledge); Standard Chartered Bank v. Ayala International Holdings, Inc. 111 F.R.D. 76, 81 (S.D.N.Y. 1986) (counterclaims alleging reliance on opposing party's representations did not inject privileged communications into case because counterclaim plaintiff's knowledge can be independently ascertained without invading privilege). See also Sedco International S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982) (receipt of ordinary legal advice cannot make reliance unreasonable); cert denied, 459 U.S. 1017 (1982).

35 E.g., McCarthy v. Belcher, 340 N.W.2d 848, 850 (Mich. App. 1983). Cf. Charles Woods Television Corp. v. Capital Cities/ABC, Inc., 869 F.2d 1155, 1162 (8th Cir.) (no waiver where witness testified generally about issue, not about particular communication), cert. denied, 493 U.S. 848 (1989).

36 In re Dean, 711 A.2d 257, 258-59 (N.H. 1998) (collecting cases that collect cases).

37 Pippenger v. Gruppe, 883 F. Supp. 1201, 1205 (S.D. Ind. 1994) (citations omitted). Accord Baker v. General Motors Corp., 209 F.3d 1051, 1055 (8th Cir. 2000).

38 State Farm Mutual Automobile Insurance Co. v. Lee, 4 P.3d 402, 408 (Ariz. App. 1999) (collecting cases).

39 United States v. White, 887 F.2d 267, 270-71 (D.C. Cir. 1989). But see United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.) (advice of counsel basis for "good faith belief" that securities transactions were not fraudulent placed legal advice in issue and waived privilege); cert. denied 502 U.S. 813 (1991).

40 Simmons Foods, Inc. v. Willis, 191 F.R.D. 625, 635 (D. Kan. 2000) (collecting cases); Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 727 N.E.2d 240, 243 (Ill. 2000).

41 Simmons Foods 191 F.R.D. at 635 (creditor's action against debtor's attorneys for negligence in bankruptcy proceedings waived privilege regarding creditor's communications with its attorney, whose negligence debtor alleged to be proximate cause of creditor's damages); Fischel & Kahn, Ltd. v.Vvan Straaten Gallery, Inc., 727 N.E.2d 240, 243 (Ill. 2000) (collecting cases). But see Rutgard v. Haynes, 185 F.R.D. 596 (S.D. Cal. 1999) (plaintiff's claim for damages to recover amount of settlement of underlying case waived privilege between client and subsequently retained counsel by putting at issue reasonableness of settlement recommended by subsequent counsel).

42 See Home Indemnity Co. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1327 (9th Cir. 1995) (insurer's malpractice claim against law firm hired to defend personal injury and death claims, based on firm's alleged exposure of insurer to bad faith claim settled by insurer, waived privilege only if insurer attempted to justify the settlement on advice of counsel); GAB Business Services, Inc. v. Syndicate 627, 809 F.2d 755 (11th Cir. 1987) (insurer's claim against claims adjuster for reimbursement of insurer's settlement of claim, allegedly because of poor claims adjusting services, waived privilege by placing in issue conduct of insurer's attorney in reaching settlement); Home Insurance Co. v. Advance Machine Co., 443 So. 2d 165 (Fla. App. 1983) (in insurer's contribution claim seeking to recover cost of settlement, insurer did not waive privilege merely by filing action and asserting reasonableness of settlement as required by state statute).

43 Sappington v. Miller, 821 S.W.2d 901, 905 (Mo. App. 1992) (citing with approval Hamilton v. Hamilton Steel Corp., 409 So.2d 1111 (Fla. App. 1982)).

44 68 F.R.D. at 581 n. 5.

45 Hoechst Celanese Corp. v. National Union Fire Ins. Co., 623 A.2d 1118, 1125 (Del. Super. 1992).

46 Energy Capital Corp. v. United States, 45 Fed. Cl. 481, 486 (Fed. Cl. 2000).

47 Id. (quoting Ideal Electronic Security Co. v. International Fidelity Ins. Co., 129 F.3d 143 (D.C. Cir. 1997)). But see Mortgage Guarantee & Title Co. v Cunha, 745 A.2d 156 (R.I. 2000) (in title company's malpractice action against attorney for negligent title investigation, court rejected Hearn test as insufficiently protective of attorney-client privilege and refused to order plaintiff to produce privileged documents going to attorneys' fees sought as damages); Aranson v. Schroeder, 671 A.2d 1023 (N.H. 1995) (in action against attorney for creating false material evidence in underlying suit, court criticized Hearn as insufficiently protective of attorney-client privilege but remanded for determination of whether filing of complaint seeking damages for attorney fees and costs incurred in underlying action injected privileged material into case that was required for resolution of case).

48 People in the Interest of E.H., 837 P.2d 284, 292 (Colo. App. 1992).

49 No. 94 Civ. 0905, 1998 U.S. Dist. LEXIS 14544 (S.D.N.Y. September 14, 1998).

50 Id. at * 7.

51 id. at * 9.

52 374 N.W.2d 849 (Neb. 1985).

53 Id. at 856.

54 909 P.2d 449 (Ariz. App. 1995).

55 Id. at 451.

56 id. at 452. Accord Pyramid Controls, Inc. v. Siemens Industrial Automations, Inc., 176 F.R.D. 269 (N.D. Ill. 1997); In re Pfohl Brothers Landfill Litigation, 175 F.R.D. 13 (W.D.N.Y. 1997); WLIG-TV, Inc. v. Cablevision Systems Corp., 879 F. Supp. 229 (E.D.N.Y. 1994).

57 153 F.R.D. 660 (D. Colo. 1994).

58 Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699-700 (10th Cir. 1998).

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