1E9Ct5D

COLORADOKevin E. O’BrienHALL & EVANS, LLC1001 17th Street, Suite 300Denver, CO 80202Phone (303) 628-3300www.hallevans.comobrienk@hallevans.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?No, there is no per se exemption or privilege applicable to pre-suit investigationmaterials. In order to claim such materials are not discoverable, the party opposingdiscovery must show that the investigation materials were prepared or obtained incontemplation of specific litigation, or that the party’s attorney was involved in obtainingor preparing the materials—the mere fact that litigation may result from an accident isnot sufficient to withhold pre-suit investigation materials. Compton v. Safeway, Inc., 169P.3d 135, 137-39 (Colo. 2007); Colorado Rule of Civil Procedure (“C.R.C.P.”) 26(b)(3)2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an accident?Generally, there is a presumption that written or recorded statements taken during theinvestigation of an accident are discoverable, unless the party opposing discovery canshow “that the witness statements were obtained after a specific claim had arisen, forthe purpose of defending that claim, and at a time when ‘there was a substantialprobability of imminent litigation over the claim or a lawsuit had already been filed.’”Compton v. Safeway, Inc., 169 P.3d 135, 137 (Colo. 2007); C.R.C.P. 26(b)(3).3. Does your state recognize a self-critical analysis privilege?Unlikely, but possible. In Combined Communications Corp. v. Public Service Co., 865P.2d 893 (Colo.App., 1993) the Colorado Court of Appeals left open the possibility ofrecognizing the privilege while noting that it has been dampened by the US SupremeCourt and that it only applies in very limited circumstances that were not present in thatcase.