r & Fellman, PC v. Affiniti Colorado, LLC

2019 COA 147

• Court: Colorado Court of Appeals
• Decided: September 12, 2019
• Docket: 19CA0574, Kissinge
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY September 12, 2019

2019COA147

No.19CA0574, Kissinger & Fellman, PC v. Affiniti Colorado, LLC— Attorneys and Clients — Attorney-Client Privilege; Business Organizations — Corporations — Dissolution

Well-settled Colorado law holds that the attorney-client

privilege survives the death of a client. In this interlocutory appeal

of an order denying a motion for protective order based on the

attorney-client privilege, a division of the court of appeals considers,

as a matter of first impression, whether the privilege survives the

dissolution of a corporation. The division concludes, consistent

with the trending majority view, that the attorney-client privilege

does not survive a corporation’s dissolution when (1) no one with

the authority to assert or waive the privilege remains, and (2) there

are no ongoing post-dissolution proceedings. The division affirms

the district court’s order. COLORADO COURT OF APPEALS 2019COA147

Court of Appeals No. 19CA0574 City and County of Denver District Court No. 18CV32340 Honorable Michael A. Martinez, Judge

Affiniti Colorado, LLC, a Delaware limited liability company,

Plaintiff-Appellee,

v.

Kissinger & Fellman, P.C., a Colorado professional corporation, and Kenneth S. Fellman,

Defendants-Appellants.

ORDER AFFIRMED

Division A Opinion by JUDGE FREYRE Welling and Tow, JJ., concur

Announced September 12, 2019

Ogborn Mihm, LLP, Michael T. Mihm, Susan H. Jacks, James E. Fogg, Thomas D. Neville, Denver, Colorado, for Plaintiff-Appellee

Montgomery Little & Soran, P.C., Christopher B. Little, Michael R. McCormick, Esther H. Lee, Greenwood Village, Colorado, for Defendants-Appellants ¶1 In this C.A.R. 4.2 interlocutory appeal, we are asked to decide

an attorney-client privilege issue not previously addressed by

Colorado courts. No one disputes that the attorney-client privilege

exists “without regard to the non-corporate or corporate character

of the client,” A v. Dist. Court, 191 Colo. 10, 20, 550 P.2d 315, 323

(1976) (citation omitted), or that a corporation may only assert or

waive the privilege through “individuals empowered to act” on its

behalf, Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d

454, 462 (Colo. App. 1993). As well, our supreme court and other

courts presume that the attorney-client privilege ordinarily survives

the death of the client. Wesp v. Everson, 33 P.3d 191, 200 (Colo.

2001) (citing Swidler & Berlin v. United States, 524 U.S. 399 (1998)).

But what happens when the client is a dissolved corporation and

has no one to act on its behalf? Does the attorney-client privilege

survive the corporation’s dissolution? Relying on the majority view

of courts in other jurisdictions that have considered this issue, the

district court answered that question “no.” We agree with the

district court and conclude that the policy reasons supporting the

“posthumous” privilege for an individual client do not support the

1 posthumous privilege for a corporate client. We hold that when (1)

a corporation dissolves; (2) there are no ongoing post-dissolution

proceedings; and (3) no one with the authority to invoke or waive

the corporation’s attorney-client privilege remains, the privilege

ceases to exist. Therefore, we affirm the district court’s order.

¶2 Defendants, Kenneth S. Fellman and the law firm Kissinger &

Fellman, P.C. (collectively, Fellman), appeal the district court’s order

denying their motion for a protective order. Fellman filed the

motion in a negligent misrepresentation suit brought by plaintiff,

Affiniti Colorado, LLC, alleging that Fellman had made

misrepresentations in an “Opinion Letter” that was written to

induce it to contract with Fellman’s now-dissolved corporate client,

EAGLE-Net Alliance (EAGLE-Net), a purported intergovernmental

entity. 1 Fellman raised immunity under the Colorado

Governmental Immunity Act (CGIA), so the district court set the

1The parties dispute whether EAGLE-Net was properly formed as an intergovernmental entity. EAGLE-Net asked the district court to assume its status as an intergovernmental agency for the purpose of resolving immunity, and we make the same assumption since it does not affect the outcome. Because no one disputes that EAGLE- Net had a board of directors, officers, and members, we refer to it as a “corporation” for purposes of this appeal. 2 matter for a hearing under Trinity Broadcasting of Denver, Inc. v.

City of Westminster, 848 P.2d 916 (Colo. 1993), and ordered limited

discovery related to the immunity issue. After Affiniti requested

communications between Fellman and EAGLE-Net, Fellman sought

a protective order based on the attorney-client privilege. The

district court denied the motion and granted C.A.R. 4.2

certification. We granted Fellman’s petition for review.

I. Background

¶3 EAGLE-Net was formed to deploy and operate a broadband

internet network, funded by a federal grant, to provide rural

schoolchildren with internet access. Affiniti is a limited liability

company that provides broadband technology to rural communities.

It negotiated and executed a management agreement with

EAGLE-Net in 2013, based on an Opinion Letter provided by

Fellman, acting as EAGLE-Net’s general counsel. Under the

agreement’s terms, Affiniti agreed to manage EAGLE-Net’s network

and provide capital funding for the project in exchange, in part, for

EAGLE-Net’s agreement to grant Affiniti a security interest in its

assets.

3 ¶4 In 2015, Affiniti sued EAGLE-Net for breach of the agreement

and obtained a judgment. The litigation eventually depleted

EAGLE-Net’s assets, and on May 27, 2017, the board of directors

adopted a resolution to dissolve EAGLE-Net and divest it of its

assets. On June 5, 2017, the dissolution process ended,

EAGLE-Net ceased to exist, and Fellman no longer represented

EAGLE-Net.

¶5 During the litigation, federal government officials notified

Affiniti that EAGLE-Net had failed to obtain the necessary approval

to grant Affiniti a security interest in its assets, contrary to

representations allegedly made in the Opinion Letter. Because of

the resulting difficulties in collecting on the judgment, Affiniti then

brought this negligent misrepresentation action premised on those

alleged misrepresentations.

¶6 As relevant here, Fellman filed a motion to dismiss, asserting

that (1) EAGLE-Net was an intergovernmental agency; (2) Fellman

was general counsel for this public entity; and (3) Fellman was,

therefore, entitled to immunity under the CGIA. When the court

ordered limited discovery and Affiniti requested communications

4 between Fellman and EAGLE-Net, Fellman filed the motion at issue

here. The court denied the motion and ordered Fellman to comply

with Affiniti’s discovery requests.

¶7 Fellman then moved for reconsideration and raised several

new issues. It argued that (1) because EAGLE-Net was a public

entity, special policies, not considered by the court, applied; (2) the

work product and deliberative process privileges, not considered by

the court, applied; and (3) the public official privilege protected its

communications with EAGLE-Net. In denying reconsideration, the

district court found that the motion was premised on the same legal

theory and that nothing in the motion altered the analysis or the

outcome.

II. Jurisdiction

¶8 Before discussing the merits, we address whether

interlocutory review under C.A.R. 4.2 is a proper channel to review

the district court’s order finding that the attorney-client privilege

does not survive the dissolution of a corporation. As recognized by

the division in Adams v. Corrections Corp. of America, 264 P.3d 640,

644 (Colo. App. 2011), interlocutory review of discovery orders that

5 address “only whether the trial court . . . abused its discretion in a

discovery matter” is generally not allowed. Id.; see also In re W.R.

Grace & Co.-Conn., 984 F.2d 587, 589 (2d Cir. 1993) (“Pretrial

discovery orders are generally not appealable . . . .”). We fully agree

with this general proposition, and our decision to review the

privilege issue presented here should not be viewed as a departure

from it. 2 Indeed, we note that the general rule in Adams is in

accord with numerous federal decisions considering the propriety of

reviewing discovery orders under the comparable federal

interlocutory review statute, 28 U.S.C. § 1292(b) (2018). These

decisions have consistently found such orders improper for

interlocutory review. See Quantum Corp. v. Tandon Corp., 940 F.2d

642 (Fed. Cir. 1991) (denying review of court’s order denying the

request for bifurcation of proceedings to avoid disclosure of patent

infringement opinions); Oasis Research, LLC v. EMC Corp., Nos.

4:10-CV-435, 4:12-CV-526, 2015 WL 5318119, *4 (E.D. Tex. Sept.

11, 2015) (unpublished opinion) (denying review because order

2 Affiniti did not challenge our decision to grant interlocutory review under C.A.R. 4.2 in its response to the petition, nor did it argue that review was improvidently granted. 6 compelling disclosure under the crime fraud exception did not

present a pure issue of law); Fed. Trade Comm’n v. Stefanchik, No.

C04-1852RSM, 2006 WL 3474204, *1-2 (W.D. Wash. Nov. 30, 2006)

(unpublished order) (denying interlocutory review because the

question whether the client’s knowledge of his attorney’s knowledge

waived the privilege did not involve a controlling question of law);

Isaacson v. Keck, Mahin & Cate, 875 F. Supp. 478, 481 (N.D. Ill.

1994) (denying review of court’s order issued after reviewing

materials because the issue did not involve an unresolved question

of law); McCann v. Commc’ns Design Corp., 775 F. Supp. 1506,

1533-34 (D. Conn. 1991) (discovery orders generally never present

controlling questions of law).

¶9 Having first articulated the general rule, the division in Adams

also recognized that when a discovery order “presents a question of

law, such as the availability of a corporation’s attorney-client

privilege . . . , interlocutory review is occasionally granted.” 264

P.3d at 644. Because we are the first division to accept

interlocutory review of a discovery order, we explain why, in our

view, this is one of those exceptionally rare cases, as contemplated

7 by Adams, that meets the exacting criteria for our review under

C.A.R. 4.2 and section 13-4-102.1, C.R.S. 2018.

A. Applicable Law

¶ 10 Section 13-4-102.1(1) provides:

The court of appeals, under rules promulgated by the Colorado supreme court, may permit an interlocutory appeal of a certified question of law in a civil matter from a district court or the probate court of the city and county of Denver if:

(a) The trial court certifies that immediate review may promote a more orderly disposition or establish a final disposition of the litigation; and

(b) The order involves a controlling and unresolved question of law.

¶ 11 Similarly, C.A.R. 4.2 provides, in relevant part, as follows:

(a) Discretionary Interlocutory Appeals. Upon certification by the trial court, or stipulation of all parties, the court of appeals may, in its discretion, allow an interlocutory appeal of an order in a civil action. . . .

(b) Grounds for Granting Interlocutory Appeal. Grounds for certifying and allowing an interlocutory appeal are:

(1) Where immediate review may promote a more orderly disposition or establish a final disposition of the litigation; and

8 (2) The order involves a controlling and unresolved question of law. For purposes of this rule, an “unresolved question of law” is a question that has not been resolved by the Colorado Supreme Court or determined in a published decision of the Colorado Court of Appeals, or a question of federal law that has not been resolved by the United States Supreme Court.

¶ 12 Discretionary review, therefore, may be granted when (1)

immediate review may promote a more orderly disposition or

establish a final disposition of the litigation; (2) the order involves a

controlling question of law; and (3) that question of law is

unresolved. Indep. Bank v. Pandy, 2015 COA 3, ¶ 8, aff’d, 2016 CO

49; Kowalchik v. Brohl, 2012 COA 25, ¶ 13.

B. Application

¶ 13 Because there is little dispute that the third factor is satisfied,

we address it first, before turning to the other two factors.

1. Unresolved Question of Law

¶ 14 The question certified by the district court — whether the

attorney-client privilege survives the dissolution of a corporation —

does not involve an exercise of the court’s discretion, but instead

concerns purely a question of law. Adams, 264 P.3d at 644. The

parties agree that neither our supreme court nor a division of this 9 court has decided this issue, and as we explain in the merits

section, most states have not decided this issue either. Therefore,

we conclude that Fellman’s petition presents an unresolved

question of law under C.A.R. 4.2 and section 13-4-102.1.

2. More Orderly Disposition

¶ 15 We next consider whether our review may promote a more

orderly disposition or establish a final disposition of the litigation.

Fellman asserts, and Affiniti does not dispute, that immediate

review may promote a more orderly disposition of the litigation

because the damage that could result from the disclosure of the

privileged communications could not be undone on direct appeal.

Wesp, 33 P.3d at 194 (“[W]hen a secret is out, it is out for all time,

and cannot be caught again like a bird, and put back in its cage.”)

(citation omitted). While that is certainly true, it alone is not

enough to satisfy this factor.

¶ 16 While not resolving the entire litigation, review of this privilege

issue will lead to a more orderly disposition of the case because of

the central role it plays in resolving both the qualified immunity

issue and the merits of Affiniti’s negligent misrepresentation claim

10 against Fellman. Indeed, the disclosure of prior communications

between Fellman and EAGLE-Net will directly affect the court’s

resolution of the immunity issue, thereby determining whether the

lawsuit may proceed at all. As well, the district court’s legal finding

that no attorney-client privilege exists means that attorney-client

communications related to the merits — negligent

misrepresentation — will also be substantially affected. Under

these circumstances, we conclude that interlocutory review of this

legal question may — and almost certainly will — promote a more

orderly disposition of the litigation and that the petition satisfies the

requirements of C.A.R. 4.2(b)(1) and section 13-4-102.1(1)(a).

3. Controlling

¶ 17 No division of this court has developed a single definition of

“controlling” for purposes of a C.A.R. 4.2 petition. Indep. Bank, ¶ 9.

Rather, “whether an issue is ‘controlling’ depends on the nature and

circumstances of the order being appealed.” Id. (citing Adams, 264

P.3d at 645 n.8). Factors to be considered in making this

determination include: (1) whether the issue is one of widespread

public interest, see Adams, 264 P.3d at 646; (2) whether the issue

11 would avoid the risk of inconsistent results in different proceedings,

see Shaw Constr., LLC v. United Builder Servs., Inc., 2012 COA 24,

¶ 12, overruled on other grounds by Goodman v. Heritage Builders,

Inc., 2017 CO 13, ¶ 11; Green v. Duke Power Co., 290 S.E.2d 593,

596 (N.C. 1982) (interlocutory appeal proper due to the possibility

that a party will be prejudiced by different juries in separate trials

rendering inconsistent verdicts on the same factual issues); (3)

whether the issue is “case dispositive,” see Kowalchik, ¶ 15 (an

issue is controlling where a failure to join an indispensable party

who cannot feasibly be joined subjects a plaintiff’s complaint to

dismissal and thus, is potentially case-dispositive); and (4) whether

the case involves “extraordinary facts,” Adams, 264 P.3d at 646.

¶ 18 For the following confluence of reasons, we conclude that the

question of law presented here is “controlling.” First, as noted

above, the availability or unavailability of the privilege will

determine not only the outcome of the ancillary immunity

proceeding, but it will also be central to resolving the outcome of

the negligent misrepresentation claim. Therefore, our review of this

legal issue may be “case-dispositive.” Kowalchik, ¶ 15.

12 ¶ 19 Additionally, novel attorney-client privilege issues are issues of

“great significance to our legal system,” a relevant factor for

accepting interlocutory review in this court and in our supreme

court. Wesp, 33 P.3d at 194 (granting interlocutory review under

C.A.R. 21); Adams, 264 P.3d at 646 (finding issue not controlling in

part because plaintiffs did not present an issue of widespread

public interest).

¶ 20 Finally, while we agree that interlocutory review of discovery

orders is almost never warranted, precedent exists for reviewing the

precise legal issue presented here. See Garner v. Wolfinbarger, 430

F.2d 1093, 1096-97 (5th Cir. 1970) (the availability of the corporate

attorney-client privilege as against its shareholders is a “controlling

question of law” and proper for interlocutory review under 28 U.S.C.

§ 1292(b)); Radiant Burners, Inc. v. Am. Gas Ass’n, 320 F.2d 314,

317 (7th Cir. 1963) (accepting review under 28 U.S.C. § 1292(b)

based on district court’s finding that corporation’s right to claim the

attorney-client privilege is a controlling question of law); Red Vision

Systems, Inc. v. Nat’l Real Estate Info. Servs., L.P., 108 A.3d 54, 58-

59 (Pa. Super. Ct. 2015) (accepting interlocutory review of whether

13 the corporate attorney-client privilege survives dissolution under

Pennsylvania’s three-part standard); see also Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 110-11 (2009) (“[I]n extraordinary

circumstances,” 28 U.S.C. § 1292(b) creates an escape hatch from

the finality rule for “particularly injurious or novel privilege

ruling[s]” that “involve[] . . . new legal question[s] or [are] of special

consequence.”).

¶ 21 For these reasons, we conclude that this is one of those

exceptionally rare cases described in Adams, where the discovery

issue presented involves a controlling issue of law, and that it meets

the criteria for our review under C.A.R. 4.2 and section 13-4-102.1.

III. The Attorney-Client Privilege Does Not Survive a Corporation’s Dissolution If All Proceedings Have Been Concluded and No One Remains to Act on the Corporation’s Behalf

¶ 22 Fellman challenges the court’s ruling on three grounds. First,

it contends that because the attorney-client privilege applies equally

to corporations and individuals in Colorado, and because Colorado

law presumes the privilege survives the death of an individual, the

privilege must necessarily survive the dissolution of the corporation.

To hold otherwise, it continues, would contravene well-settled

14 precedent. As part of this contention, Fellman further asserts that

Mr. Fellman was authorized to invoke the privilege because of his

status as former general counsel. Fellman next contends that the

court failed to apply the public policy considerations raised in the

reconsideration motion. Finally, it contends that the district court

did not properly manage discovery. We address and reject each

preserved contention.

A. Standard of Review

¶ 23 We review a court’s discovery ruling for an abuse of discretion.

Bond v. Dist. Court, 682 P.2d 33, 40 (Colo. 1984). We will not

reverse a court’s ruling unless its “decision is manifestly arbitrary,

unreasonable, or unfair, or [it] applies incorrect legal standards.”

Medina v. Conseco Annuity Assurance Co., 121 P.3d 345, 347 (Colo.

App. 2005). This standard of review also applies to a district court’s

conclusions regarding the attorney-client privilege. Black v. Sw.

Water Conservation Dist., 74 P.3d 462, 468 (Colo. App. 2003); see

also Fox v. Alfini, 2018 CO 94, ¶¶ 14, 17, 18 (a district court’s

decision of whether attorney-client privilege applies in the discovery

context is reviewed for an abuse of discretion).

15 B. Attorney-Client Privilege

¶ 24 The attorney-client privilege “protects communications

between attorney and client relating to legal advice.” All. Constr.

Sols., Inc. v. Dep’t of Corrs., 54 P.3d 861, 864 (Colo. 2002). It is

codified in section 13-90-107(1)(b), C.R.S. 2018, which provides as

follows:

An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney’s secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.

¶ 25 The privilege recognizes that attorneys cannot provide effective

legal advice unless the client reveals all pertinent circumstances of

the case, no matter how embarrassing or inculpatory those facts

are. Wesp, 33 P.3d at 196. Indeed, “the right of parties within our

justice system . . . is rendered meaningless unless communications

between attorney and client are ordinarily protected from later

disclosure without client consent.” Id. And the privilege is

consistent with Rule 1.6(a) of the Colorado Rules of Professional

Conduct requiring that attorneys “not reveal information relating to 16 the representation of a client,” without the client’s informed consent

or unless disclosure is otherwise permitted. The privilege

encompasses confidential communications made by the client to an

attorney and communications from the attorney to the client.

People v. Tippett, 733 P.2d 1183 (Colo. 1987). It rests with the

client and can only be waived by the client. People v. Trujillo, 144

P.3d 539, 542 (Colo. 2006). The burden of establishing the privilege

is on the party seeking to invoke it. Fox, ¶ 19.

¶ 26 Well-settled law presumes that the attorney-client privilege

survives the death of the client because “[k]nowing that

communications will remain confidential even after death

encourages the client to communicate fully and frankly with

counsel. . . . Posthumous disclosure of such communications may

be as feared as disclosure during the client’s lifetime.” Wesp, 33

P.3d at 200 (quoting Swidler & Berlin, 524 U.S. at 407).

¶ 27 The attorney-client privilege applies to corporations and public

entities. See All. Constr. Sols., 54 P.3d at 865-70; see also Ross v.

City of Memphis, 423 F.3d 596, 601 (6th Cir. 2005) (collecting cases

holding that governmental entities may invoke the attorney-client

17 privilege in civil suits and relying on corporate privilege principles to

define the privilege available to governmental entities). But unlike

the individual client, a corporation cannot speak directly with its

lawyers — it must do so through its agents. Upjohn Co. v. United

States, 449 U.S. 383, 390 (1981); Genova, 72 P.3d at 462. Thus, a

corporation may only assert or waive the attorney-client privilege

through individuals empowered to act on its behalf. Genova, 72

P.3d at 462 (citing Commodity Futures Trading Comm’n v.

Weintraub, 471 U.S. 343, 348 (1985)). Indeed, the authority to

assert and waive a solvent corporation’s attorney-client privilege

rests with its current management. Id.

C. Posthumous Attorney-Client Privilege

¶ 28 Fellman urges us to follow the well-settled general rule that

the privilege survives the death of a natural person, but

acknowledges that whether the privilege survives the dissolution of

a corporation is less settled. See In re Grand Jury Subpoena # 06-1,

274 F. App’x 306, 309 (4th Cir. 2008) (whether “the corporate

attorney-client privilege survives the dissolution of the corporate

18 entity” is an “unsettled legal question”). Thus, we begin with the

well-settled jurisprudence.

¶ 29 In Swidler & Berlin, 524 U.S. at 410, the United States

Supreme Court acknowledged that the attorney-client privilege is

“one of the oldest recognized privileges in the law” and held that it

survives the death of a client. In that case, an individual sought

legal advice concerning investigations related to the firings of White

House Travel Office employees. Id. at 401. The individual later

committed suicide, and a federal grand jury issued a subpoena for

the attorney’s notes. Id. at 402. In the action to enforce the

subpoena, the district court concluded that the notes were

protected by the attorney-client and work-product privileges. Id.

¶ 30 The appellate court reversed and concluded that the

posthumous attorney-client privilege was not absolute in the

criminal context. Id. It found “a posthumous exception to the

privilege for communications whose relative importance to

particular criminal litigation is substantial” and applied the

exception to enforce the subpoena. Id.

19 ¶ 31 The Supreme Court disagreed and reversed. Id. at 410. It

recognized that a posthumous privilege, subject to a few exceptions,

was well settled at common law, and found that “a contrary rule

would be a modification of the common law.” Id. at 407. The Court

then discussed the general rationale for the posthumous privilege,

explaining that it encourages frank and open communication and

that “[c]lients may be concerned about reputation, civil liability, or

possible harm to friends or family.” Id. at 407. It held that because

these considerations would be undermined if the posthumous

privilege did not apply in criminal cases, no such exception existed.

Id. at 408. The Colorado Supreme Court adopted this rule in Wesp,

33 P.3d at 197. Thus, both cases reasoned that a posthumous

privilege was justified to (1) ensure full and frank communication

between clients and attorneys; (2) protect a client’s reputation; (3)

avoid civil liability; and (4) avoid embarrassment and potential

harm to friends and family. Swidler & Berlin, 524 U.S. at 407;

Wesp, 33 P.3d at 200.

¶ 32 These justifications, however, do not apply with equal force to

defunct corporations for several reasons. First, while frank and full

20 communications are undoubtedly important between corporations

and their attorneys, a corporation’s privilege is held by its

managers, who often change over time. Thus, no individual

manager can be assured that future managers will not waive the

privilege and reveal confidences.

¶ 33 The United States Supreme Court alluded to this distinction in

Weintraub, 471 U.S. at 345. There, the Court considered whether a

bankruptcy trustee could waive a dissolved corporation’s attorney-

client privilege in bankruptcy proceedings. Id. It noted that

because directors and managers change, and the right to assert or

waive the privilege applies only to current directors and managers,

“[d]isplaced managers may not assert the privilege over the wishes

of current managers, even as to statements that the former might

have made to counsel concerning matters within the scope of their

corporate duties.” Id. at 349. Consequently, even frank and open

communications between corporate managers and their attorneys

are subject to disclosure by future management, undermining this

reason for presuming a “posthumous” privilege following a

corporation’s dissolution.

21 ¶ 34 As well, corporations do not have friends or family who could

be embarrassed or harmed, nor do they have a reputation to protect

following dissolution. Red Vision Sys., Inc., 108 A.3d at 67-68

(citing Gilliland v. Geramita, No. 2:05-CV-01059, 2006 WL 2642525,

at *4 (W.D. Pa. Sept. 14, 2006)). Further, unlike an individual,

whose estate can be sued civilly, once a corporation is fully

dissolved, any suit brought against it must be filed within two

years. § 7-90-911, C.R.S. 2018. As one federal district court has

noted,

[a] dissolved corporation does not have the same concerns as a deceased natural person and therefore has less need for the privilege after dissolution is complete. As there are usually no assets left and no directors, the protections of the attorney-client privilege are less meaningful to the typical dissolved corporation. Moreover, because the attorney-client privilege has the effect of withholding relevant information from the factfinder, it should be applied only when necessary to achieve its limited purpose of encouraging full and frank disclosure by the client to his or her attorney.

City of Rialto v. U.S. Dep’t of Def., 492 F. Supp. 2d 1193, 1200 (C.D.

Cal. 2007); see also Sec. & Exch. Comm’n v. Carrillo Huettel LLP, No.

13 Civ. 1735(GBD)(JCF), 2015 WL 1610282, at *2 (S.D.N.Y. Apr. 8,

22 2015) (“[T]here is no ‘tradition’ of the privilege surviving the demise

of a corporation.”); Trading Techs. Int’l, Inc. v. GL Consultants, Inc.,

Civ. A. Nos. 05-4120, 05 C 5164, 2012 WL 874322, at *4 (N.D. Ill.

Mar. 14, 2012) (corporation dissolved for nearly ten years could not

assert privilege); Lopes v. Vieira, 688 F. Supp. 2d 1050, 1068 (E.D.

Cal. 2010), on reconsideration, 719 F. Supp. 2d 1199 (E.D. Cal.

2010) (shell corporation lacking management did not retain the

power to assert the attorney-client privilege); TAS Distrib. Co. v.

Cummins Inc., No. 07-1141, 2009 WL 3255297, at *2 (C.D. Ill. Oct.

7, 2009) (privilege did not survive corporation’s dissolution); John

W. Gergacz, Attorney-Corporate Client Privilege § 2:8, Westlaw (3d

ed. database updated Mar. 2019) (explaining that the rationale for

the “posthumous” privilege discussed in Swidler & Berlin does not

apply to defunct corporations and suggesting a new presumption

that the privilege does not survive the dissolution of a corporation).

¶ 35 Fellman appears to concede that the only policy reason

supporting the “posthumous” privilege for a dissolved corporation is

to encourage full and frank communications between lawyers and

clients. And it argues that our supreme court’s failure to recognize

23 a “manifest injustice exception” to the privilege in Wesp, 33 P.3d at

200, precludes us from finding any exception to the “posthumous

privilege” presumption here. We are not persuaded.

¶ 36 Rebuttable presumptions, by their very nature, are not

absolute. Cf. Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 105 n.1

(Colo. 1992) (although there is a presumption that an employee is

hired for an indefinite period, it is not absolute and can be

rebutted). Our supreme court rejected the manifest injustice

exception because it was “at odds with the purposes of the

privilege.” Wesp, 33 P.3d at 201. As in Wesp, we reject a presumed

“posthumous” privilege for dissolved corporations because the

reasons justifying an individual’s posthumous privilege simply do

not apply with anything close to equal force to a dissolved

corporation and are outweighed by the truth-seeking goals of the

justice system. Therefore, we conclude that the “posthumous”

privilege articulated in Wesp does not presumptively apply to

dissolved corporations.

¶ 37 Other jurisdictions that have considered this question have

concluded that, although the privilege does not generally survive

24 the dissolution of a corporation, limited post-dissolution

circumstances exist where an individual with the authority to act

on behalf of a corporation may invoke or waive the privilege. We

consider these cases and conclude that in this case, no one with the

authority to act on behalf of EAGLE-Net remains to invoke or waive

the privilege.

¶ 38 In Gilliland, 2006 WL 2642525, the case on which the district

court relied, a federal district court considered the same legal issue

under similar circumstances. There, plaintiffs sued a corporation

for making misrepresentations that induced them to purchase the

corporation’s worthless stock. Id. at *1. At the time of the suit, the

corporation had “ceased operations” and was “for all practical

purposes out of business,” but it had not been dissolved. Id.

Corporate counsel was joined as a defendant, and the plaintiffs

sought discovery of communications related to the representation.

Id. Counsel asserted the privilege. Id. The court concluded that

the privilege belonged to the corporation, the burden of establishing

the privilege was on the party asserting it, and because there was

25 no one left with authority to assert the privilege, the

communications had to be produced. Id. at *3-4.

¶ 39 As noted by the district court here, the “trending majority

view” in other jurisdictions follows the rule that the attorney-client

privilege does not survive a corporation’s dissolution if there is no

one with the authority to assert it. See Sec. & Exch. Comm’n v.

Pence, No. 17-23744-MC-MORENO, 2017 WL 5624271, at *3 n.3

(S.D. Fla. Nov. 20, 2017) (privilege did not survive corporation’s

dissolution); Carrillo Huettel LLP, 2015 WL 1610282, at *4 (where

the business license had expired and the corporate charter was

revoked, no privilege remained because the entities had no one to

assert it); TAS Distrib., 2009 WL 3255297, at *2 (privilege did not

survive corporation’s dissolution); City of Rialto, 492 F. Supp. 2d at

1200 (corporation dissolved fifty years earlier could not assert the

privilege); Lewis v. United States, No. 02-2958 B/AN, 2004 WL

3203121, at *4 (W.D. Tenn. Dec. 7, 2004) (defunct entity had no

assets to protect). And the reasoning of Gilliland has been cited

with approval and adopted by other courts. See Red Vision Sys.,

Inc., 108 A.3d at 65 (collecting cases); see also Restatement (Third)

26 of the Law Governing Lawyers § 73 cmt. k (Am. Law Inst. 2000)

(“When a corporation or other organization has ceased to have a

legal existence such that no person can act in its behalf, ordinarily

the attorney-client privilege terminates . . . .”).

¶ 40 Fellman urges us to follow a different line of cases upholding

the attorney-client privilege post-dissolution. See City of Rialto, 492

F. Supp. 2d at 1201 (the general rule that a dissolved corporation

cannot assert privilege does not apply to a successor corporation);

Reilly v. Greenwald & Hoffman, LLP, 127 Cal. Rptr. 3d 317, 324

(Cal. Ct. App. 2011) (absent a waiver from the corporate client, the

attorney must assert the privilege); Travelers of N.J. v. Weisman, No.

L-16977-06, 2011 WL 519920, at *7 (N.J. Super. Ct. App. Div. Feb.

16, 2011) (unpublished opinion) (there was no time limit on the

attorney-client privilege); Randy Int’l Ltd. v. Automatic Compactor

Corp., 412 N.Y.S.2d 995, 997 (N.Y. Civ. Ct. 1979) (a defunct

corporation may still assert attorney-client privilege). But these

cases are distinguishable, because unlike Gilliland and this case,

they involved ongoing post-dissolution proceedings where a person

27 associated with those proceedings possessed the authority to invoke

or waive the privilege on behalf of the dissolved corporation.

¶ 41 For example, in Reilly, the dissolved corporation was going

through windup proceedings. 127 Cal. Rptr. 3d at 324. The court

held that “the persons authorized to act on the dissolved

corporation’s behalf during the windup process — its ongoing

management personnel — should be able to assert the privilege.”

Id. (quoting Favila v. Katten Muchin Rosenman LLP, 115 Cal. Rptr.

3d 274, 298 (Cal. Ct. App. 2010)).

¶ 42 Likewise, in Weisman, the court held that the attorney-client

privilege could be invoked by “successors, assigns or trustees in

dissolution,” even after dissolution. 2011 WL 519920, at *7.

However, that case did not involve a dissolved corporation and

therefore it did not address situations where there are no

successors, assigns, or trustees.

¶ 43 Moreover, in Randy, the court stated that the attorney-client

privilege survived even if the corporation was no longer functioning

or operating because, under New York law, “the privilege may be

raised by anyone,” even former attorneys. 412 N.Y.S.2d at 997.

28 However, Randy was decided before the Supreme Court’s decision

in Weintraub, which held that a corporation’s bankruptcy trustee,

and not the bankrupt corporation’s former directors, holds the

privilege. Weintraub, 471 U.S. at 353-55.

¶ 44 We reject Fellman’s assertion that these cases are contrary to

the general rule that the privilege does not survive dissolution and

instead conclude that they represent exceptions to the general rule.

As recognized by the court in Red Vision Systems, Inc., “the

disparate results turn not upon the application of different rules of

law, but upon differences in facts.” 108 A.3d at 65. “The key fact is

whether the corporation is ‘dead’ as opposed to being in some other

state, such as a windup phase, bankruptcy or liquidation, or having

merged into or been acquired by a successor.” Id.

¶ 45 Applying the rule and its exceptions here, we note first that

Fellman admitted in the district court that EAGLE-Net has been

dissolved, that it no longer represents EAGLE-Net, and that

“EAGLE-Net’s dissolution in 2017 indicates EAGLE-Net’s inability to

consent to having” Fellman assert or waive the privilege. No one

asserts that EAGLE-Net is still in windup, bankruptcy, or similar

29 proceedings. 3 Therefore, the district court’s finding that EAGLE-Net

is a dissolved corporation with no management to act on its behalf

is supported by the record.

¶ 46 We next reject Fellman’s related contention that, as

EAGLE-Net’s former general counsel, Fellman possesses the

authority to invoke the privilege for EAGLE-Net. It relies on the

exceptions noted above finding that a successor-in-interest,

bankruptcy trustee, person managing windup, or statutory

liquidator retains the authority to invoke or waive the privilege

during post-dissolution proceedings. Fellman asks us to create a

“former general counsel” exception without citing any authority in

support. We decline this request because it is inconsistent with

existing precedent precluding former corporate directors and

managers from invoking the corporation’s attorney-client privilege.

See Weintraub, 471 U.S. at 343; Genova, 72 P.3d at 463. And, it is

inconsistent with the Supreme Court’s holding that a former

3 Although Fellman briefly mentions that dissolved corporations can sue and be sued in Colorado after dissolution, it does not develop this argument, so we do not consider it further. See Holley v. Huang, 284 P.3d 81, 87 (Colo. App. 2011) (declining to address undeveloped contentions). 30 manager cannot assert the privilege as a shield to protect his or her

own interest. Weintraub, 471 U.S. at 353-54.4 Accordingly, we

conclude that Mr. Fellman lacks the authority to invoke the

privilege.5

D. Public Policy Claims

¶ 47 Fellman contends that the district court ignored important

public policy reasons supporting the survival of the privilege after

the dissolution of an intergovernmental agency. But Fellman

conceded that this argument was first raised in its motion to

reconsider saying, “We apologize to the Court, but Defendants’

4 We do not consider Fellman’s argument, made for the first time at oral argument, that Mr. Fellman was part of EAGLE-Net’s management. See Rucker v. Fed. Nat’l Mortg. Ass’n, 2016 COA 114, ¶ 35 (declining to address argument first raised during oral argument). 5 We reject Fellman’s assertion that Colo. RPC 1.6 requires

corporate counsel to invoke the privilege, because the rule permits disclosure when the attorney must “comply with other law or a court order.” Colo. RPC 1.6(b)(8). Mr. Fellman satisfied his ethical obligation by filing the motion for protective order. Cf. Lewis v. United States, No. 02-2958 B/AN, 2004 WL 3203121, at *1 (W.D. Tenn. Dec. 7, 2004) (ethical obligations satisfied by filing motion to quash); Red Vision Sys., Inc. v. Nat’l Real Estate Info. Servs., L.P., 108 A.3d 54, 69 (Pa. Super. Ct. 2017) (although an attorney sought to invoke the privilege, based on his professional requirements, he did not meet the burden to invoke it and therefore attorney-client privilege was inapplicable). 31 briefs did not fully address broader public policy implications

regarding EAGLE-Net’s status as a public entity.” Therefore, we

conclude this argument is waived. See Landmark Towers Ass’n v.

UMB Bank, N.A., 2018 COA 100, ¶ 45 (argument raised for the first

time in motion for reconsideration was “too late”); Snipe v. Am.

Family Mut. Ins. Co., 134 P.3d 556, 557 (Colo. App. 2006)

(explaining that because arguments were either not raised in the

trial court or raised for the first time in a motion for

reconsideration, they were not timely raised and would not be

considered on appeal).

E. Alleged Mishandling of Discovery

¶ 48 Finally, we reject Fellman’s argument that the district court

mishandled discovery by not conducting a balancing test of the

privacy interests at stake or conducting an in camera review of the

documents. Because this is beyond the scope of our C.A.R. 4.2

order, we do not address it. See Adams v. Corrs. Corp. of Am., 264

P.3d 640, 644 (Colo. App. 2011) (“Where the appeal would address

only whether the trial court had abused its discretion in a discovery

matter, interlocutory review is generally not allowed.”).

32 IV. Conclusion

¶ 49 The order is affirmed.

JUDGE WELLING and JUDGE TOW concur.