The Colorado Supreme Court on Monday concluded a Jefferson County judge went too far when she ordered a group of plaintiffs alleging injuries from toxic chemical exposure to disclose communications with their attorneys to the opposing side.

Justice Richard L. Gabriel, writing in the June 10 opinion, agreed the facts of the plaintiffs’ exposure were not confidential, but the attorney-client communications themselves were not something defendant Terumo BCT was entitled to across the board.

“If the rule were as Terumo suggests, then opposing parties would be entitled to obtain in discovery all manner of communications between their opponents and opposing counsel (because parties necessarily must convey facts to their counsel), and this would serve only to chill open communications between parties and their lawyers,” Gabriel explained.

A dozen people who lived or worked near the Terumo medical sterilization plant in Lakewood sued the company, alleging its elevated emissions of ethylene oxide gave them cancer. During the course of litigation, the plaintiffs disclosed to their attorneys the locations where they lived and worked. The lawyers, in turn, compiled the information in a spreadsheet and gave it to an expert so he could model the plaintiffs’ chemical exposure.

Terumo then sought the “underlying factual information” behind the expert’s analysis, alleging the plaintiffs were shielding the data under the guise of attorney-client privilege and making it “impossible for Terumo (or anyone else) to verify this information was accurate.”

The plaintiffs countered they never sent their expert any attorney-client communications, and they provided Terumo with declarations about their locations and estimated timeframes of exposure. 

Last year, District Court Judge Lindsay VanGilder concluded that because the plaintiffs’ attorneys were “involved in the data collection process,” they needed to disclose “any underlying facts and data in any communication between individual plaintiffs and their counsel.”

After the plaintiffs asked VanGilder to reconsider, she stood by her ruling. She reasoned Terumo needed to be able to analyze whether the plaintiffs ever changed what they told their attorneys about their chemical exposure, or see whether the plaintiffs’ attorneys sent more information to their expert than they disclosed. VanGilder noted nothing prevented the plaintiffs’ lawyers from redacting certain details involving attorney-client confidentiality.

The plaintiffs immediately appealed to the Supreme Court, arguing VanGilder had ordered them to turn over far more to Terumo than was necessary to defend against the expert’s model. They elaborated that Terumo is free to cross-examine the plaintiffs about the details of their exposure or try to paint the expert’s work as unreliable.

But VanGilder’s order “required disclosure of client e-mails and interview notes so that Defendants could question Petitioners on inconsistencies in statements that Petitioners made to their own lawyers,” the plaintiffs added. “That order compels Petitioners to answer the forbidden question: What did you say or write to your attorney?”

The Colorado Attorney General’s Office, representing VanGilder, defended her decision as ensuring both parties can reasonably access the exposure information and prepare for trial. Terumo’s attorneys added that the plaintiffs could not have expected their communications to remain confidential if they knew the information would be transmitted to their expert.

“Petitioners – not anyone else – decided to use their own lawyers as data-collectors for their expert,” Terumo’s attorneys argued. “Collecting data for an expert is not privileged simply because a lawyer does it.”

The Supreme Court disagreed that the act of compiling and sending a spreadsheet to an expert for analysis obliterated the confidentiality of the plaintiffs’ communications. To waive confidentiality, the plaintiffs would have needed to disclose the actual communications to the expert — which they did not do.

If confidentiality is waived whenever a lawyer compiles and sends facts to an expert for analysis, “then no client would feel confident communicating with their counsel because counsel could not assure the client that those conversations would remain privileged,” Gabriel wrote.

He added that VanGilder’s suggestion to redact truly confidential information from the communications was not a solution.

“If all attorney-client communications were now subject to discovery as long as all parts of the communications other than the non-privileged facts were redacted,” wrote Gabriel, “the burden on parties and their counsel — not to mention the already high costs of the discovery process — would increase dramatically.”

The case is Jordan et al. v. Terumo BCT, Inc. et al.