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Alliance Construction Solutions9/9/2002
RULE MADE ABSOLUTE
JUSTICE BENDER does not participate.
The petitioner, Department of Corrections, (DOC), initiated this original proceeding pursuant to C.A.R. 21, seeking relief from a trial court order compelling the DOC to disclose documents and communications between its legal counsel and its independent contractor, CRSS Constructors, Inc., (CRSS). At issue in the underlying suit is the DOC's alleged wrongful termination of Alliance Construction Solutions' (Alliance) contract to construct the Trinidad Correctional Facility in Trinidad, Colorado. CRSS, and specifically, Dana Dietz, an employee of CRSS, served as the DOC's project manager for construction at the Trinidad facility and therefore has knowledge about the decision to terminate. During discovery, Alliance sought communications between the attorney representing the DOC and Ms. Dietz. The trial court granted Alliance's motion to compel disclosure of the documents and communications, rejecting Petitioners' argument that the attorney-client privilege protects the communications between Ms. Dietz and the DOC's legal counsel. The trial court ruled that " he Defendant has failed to establish that there is attorney client relationship between DOC and Dana Dietz."
We issued a rule to show cause why mandamus should not issue to require the trial court to vacate its order granting Alliance's motion to compel. Today, we adopt a four-part test to determine whether communications between a governmental entity's independent contractor and the entity's counsel are protected by the attorney-client privilege. First, we hold that for the privilege to apply the information-giver must be an employee, agent, or independent contractor with a significant relationship not only to the governmental entity but also to the transaction that is the subject of the governmental entity's need for legal services. If the party seeking to exercise the privilege satisfies this preliminary requirement, we hold that the entity must also show: (2) that the communication was made for the purpose of seeking or providing legal assistance; (3) that the subject matter of the communication was within the scope of the duties provided to the entity by its employee, agent, or independent contractor; and (4) that the communication was treated as confidential and only disseminated to those persons with a specific need to know its contents.
Applying this test to the facts of this case, we conclude that Ms. Dietz is an independent contractor with a significant relationship to the DOC and to its involvement with the Trinidad project, which is the subject matter of the DOC's need for legal services. Thus, we hold that the relationship between CRSS and the DOC is one which satisfies the first part of the test we articulate today. We also hold that the communications between Ms. Dietz and the DOC's counsel satisfy the remaining elements of the test: (2) the communications were made for the purpose of seeking or providing legal assistance; (3) the subject matter of the communications was within the scope of Ms. Dietz's duties as project manager of the Trinidad site; and (4) the DOC's legal counsel regarded the communications as confidential and treated them as such. Accordingly, we make the rule absolute and direct the trial court to vacate its order.
I. ORIGINAL JURISDICTION
Initially, we note that discovery orders are interlocutory in nature and generally not reviewable in an original proceeding. Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044, 1046 (Colo. 1986). However, we may exercise our original jurisdiction when a pre-trial ruling places a party at a "significant disadvantage in litigating the merits
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