“If you want to keep a secret, you must also hide it from yourself.” – George Orwell. In this interlocutory appeal, the Court reviewed an order by the trial court to allow the plaintiffs to inspect personal and business computers, smartphones, other electronic devices belonging to the lead Defendant (and his wife, who is not a party to the case), and approximately three years of defendants’ telephone records. The Court, making the rule absolute (reversing the trial court and remanding the case) held: 1) the assertion of privacy requires a trial court to apply the balancing test in In Re District Court and failing to do so is an abuse of discretion; 2) people have a privacy interest in their electronically stored information and their telephone records; and 3) a nonparty’s status as such must be considered. Here, the trial court failed to apply the balancing test and was ordered to do so.
Tag Archives: CRCP 45
In Re: Gateway Logistics, Inc. and Gateway Freight Solutions, Inc. v. Christopher Smay, Republic Cargo, and Republic Freight, 2013CO25 (April 15, 2013)
State ex. rel. John Suthers, Attorney General and Laura Udis, Administrator, Uniform Consumer Credit Code, v. Tulips Investments, LLC, d/b/a CashBanc, and David Blevins, 2012COA206 (November 21, 2012)
An elderly couple got a pay-day loan with an annual interest rate of 365%. Seriously. The Attorney General (AG) sought to investigate the loan under Colorado’s Uniform Consumer Credit Code and the Consumer Protection Act. After the lender Tulips, a Delaware company, ignored numerous orders to provide information, including an administrative investigative subpoena, the AG obtained a court order to compel compliance. Tulips challenged the jurisdiction of a Colorado court to enforce a subpoena served out-of-state on an out-of-state entity. The trial court concluded it lacked jurisdiction to enforce the subpoena. The court of appeals disagreed on two grounds: 1) the legislature authorized the AG to take reasonable actions to fulfill its statutory duties, and 2) an administrative subpoena is not limited like a judicial subpoena under CRCP 45. The subpoena was enforceable.
The Colorado Supreme Court has proposed changes to rule CRCP 45. A copy of the proposed Rule and revised Subpoena Form may be found here: http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/Proposed/CRCP45.pdf
Please also see the CLR post on In re the Marriage of Wiggins, which directly addressed the application of Rule 45, and held that obtaining documents prior to providing all parties with notice and opportunity to object is a violation of the Rule and may subject violating attorneys to sanctions.
Divorces can get pretty contentious, with everyone looking for an advantage. In this case, Father gets Mother’s employment file from an old employer by issuing a subpoena duces tecum under CRCP 45. It takes one hour to get the file, but three days to give Mother notice of the subpoena. Subpoenaed documents are often produced in advance, and the appearance of the person subpoenaed is then waived. The Court did not rebuke that practice so long as all the parties and the subpoenaed witness consents. Otherwise, the Court held, documents may only be produced at the designated deposition, hearing, or trial. This requirement is not dependant upon the documents being confidential or privileged because the interest being protected is the right to notice and an opportunity to object prior to production. Here, Father’s attorney faces potential sanctions for her violation of CRCP 45.