In this Rule 21 proceeding before the Colorado Supreme Court, the parent served a subpoena duces tecum on the county seeking documents that might contain statements made by the County’s former director about the case and the parent. ¶8. The county provided some documents responsive to the parent’s request, but also provided a privilege log identifying eight emails withheld from disclosure and a redacted document, indicating that the undisclosed information constituted communications subject to the attorney-client privilege. ¶¶9-10. Believing the privilege log was inadequate, the parent moved for an in camera review of the withheld information. ¶12. The district court granted the parent’s request for an in camera review and the county filed a petition with the Colorado Supreme Court pursuant to C.A.R. 21. ¶13.
In upholding the district court’s order for an in camera review, the Colorado Supreme Court determined that the appropriate test for determining when an in camera review of documents that are allegedly protected by the attorney-client privilege should occur is the test described in Alcon v. Spicer, 113 P.3d 735, 742 (Colo. 2005), not People v. Madera, 112 P.3d 688, 689-90 (Colo. 2005). In People v. Madera, the Colorado Supreme Court had held that, in the context of a criminal defendant’s post-plea ineffective assistance of counsel claim, an in camera request of counsel’s case file may not be granted without an adequate factual basis supporting a good faith belief by a reasonable person that not all the documents in the case file are protected by the attorney-client privilege. 112 P.3d at 689-90. The Madera Court further explained that a six-point analytical framework must be used to determine whether a person seeking an in camera review has established a factual basis. Id. at 691. In Alcon v. Spicer, in the context of a discovery dispute in a civil personal injury claim, the Supreme Court described the process for creating a privilege log, nothing that the documents in the log must be described “with sufficient detail so that the opposing party and, if necessary, the trial court can assess the claim of privilege as to each withheld communication.” 113 P.3d at 742. If the party seeking discovery believes that the asserted privilege does not apply, it may request an in camera inspection of the challenged documents. Id.
In J.P., relying on the fact that dependency and neglect cases are civil, not criminal matters, the Colorado Supreme Court determined that Alcon, not Madera, was the correct framework to assess claims of privilege in D&N cases.
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