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A new, comprehensive legal test for discovery of records possibly protected by the right to privacy has been issued by the Colorado Supreme Court.
With discovery requests implicating the right to privacy or confidentiality, the requesting litigant in Colorado must now prove each of the following four elements:
After the requesting party proves the documents are relevant (element #1), the party opposing the discovery must show that it has a legitimate expectation that the requested materials or information are confidential and will not be disclosed. The case is Cedar St. Venture, LLC v. Judd (In re Dist. Ct., a legal malpractice case). The Cedar Street court effectively merged the elements of two existing discovery tests, the so-called Martinelli and Stone tests, because choosing which test to apply had proven difficult for the state’s trial courts. Click here to read an analysis of this case by Grund • Dagner’s Thomas Kranz, who focuses on Colorado construction-defect litigation, business litigation and healthcare liability defense law.