In re Wiggins

• Decision Date: 18 June 2012
• Docket Number: No. 12SA63.,12SA63.
• Citation: 2012 CO 44,279 P.3d 1
• Parties: In re the MARRIAGE OF Jeffrey A. WIGGINS, Petitioner and Zwilda Wiggins, Respondent.
• Court: Colorado Supreme Court

279 P.3d 1

2012 CO 44

In re the MARRIAGE OF Jeffrey A. WIGGINS, Petitioner and Zwilda Wiggins, Respondent.

No. 12SA63.

Supreme Court of Colorado, En Banc.

June 18, 2012.

Gutterman Griffiths PC, Ann Gushurst, Littleton, Colorado, Attorneys for Petitioner.

Lass Moses Ramp LLC, Terrance R. Kelly, Denver, Colorado, Attorneys for Respondent.

Ronald D. Litvak, Lesleigh Monahan, Robert Kendig, Denver, Colorado, Attorneys for Amicus Curiae Colorado Chapter of the American Academy of Matrimonial Lawyers.

Chief Justice BENDER delivered the Opinion of the Court.

¶ 1 This original proceeding brought under C.A.R. 21 arises from a divorce and parenting case that is in its third year of post-dissolution decree litigation. Mother's petition challenges the district court's summary denial of her motion for a protective order and sanctions concerning the acquisition by Father's attorney of Mother's entire employment file from Mother's former employer by subpoena. We accepted jurisdiction to determine whether Father's attorney violated C.R.C.P. 45 when she made arrangements with Mother's former employer for the production of Mother's employment file without Mother's consent and before Mother had notice of the existence of the subpoena.

¶ 2 We interpret Rule 45 to require that, unless the subpoenaed witness and other parties consent to an alternate arrangement or by other court order, subpoenaed documents are to be produced only at the deposition, hearing, or trial specified in the subpoena and hold that the conduct of Father's attorney in this case violated Rule 45. We further hold that because Rule 45 sets forth the procedure for the fair marshaling of subpoenaed testimony and documents, Father's attorney frustrated the purpose of Rule 45 by depriving Mother of the opportunity to object to the subpoena before the documents were produced. Although the personal and sensitive nature of the documents obtained by Father's attorney magnifies her violation of Rule 45, our holding is not dependent on the documents being privileged, confidential, or otherwise protected. Thus, we need not reach the question of whether an employment file is presumed to be protected from discovery.

¶ 3 For these reasons, we reverse the trial court's order, make the rule absolute, and remand this matter to the trial court. On remand, we direct the trial court to ensure that Father and Father's attorney identify and recover, and then return or destroy all physical and electronic copies of the documents produced by Mother's former employer pursuant to the subpoena issued by Father's attorney, including Mother's entire employment file. We also direct the trial court to determine whether sanctions should be awarded to Mother against Father's attorney for the rule violation.

I. Facts and Proceedings Below

¶ 4 There is no dispute between the parties as to the facts or sequence of events germane to this appeal. Jeffrey Wiggins (“Father”) and Zwilda Wiggins (“Mother”) were divorced in May 2009. Since then, the parties have been embroiled in post-dissolution decree litigation. Both parties sought discovery in advance of an October 13, 2011 hearing concerning parenting time and child support.

¶ 5 Three business days before the October 13 hearing, Father's attorney served a subpoena on an individual who worked at the school where Mother was previously employed. When the school's office manager called Father's attorney's law firm to inform Father's attorney that the individual was out of the office for two weeks, Father's attorney served a second subpoena a couple of hours later. This time, the subpoena was served on the school's office manager. The subpoena commanded the office manager to appear at the October 13 hearing and to produce, at the hearing, Mother's entire employment file, as well as any other records of communications with Mother:

You are hereby ordered to attend and give testimony at the Douglas County District Court ... on Thursday, October 13, 2011, at 1:30 p.m. as a witness for the Petitioner [Father] and also to produce then and there the documents listed in the attached Exhibit “ A ” now in your custody and control.

...

Exhibit “A”

...

Produce the entire [school] employment file for Ms. Wiggins, as well as any and all records of correspondence with Ms. Wiggins throughout her employment at [the school], including any written letters, notes from phone conversations, and notes from in-person meetings.

(Emphasis added.)

¶ 6 Approximately ten minutes after the school's office manager had been served with the subpoena, a third individual—the school's business manager—called Father's attorney and left a voice message informing her that the school's office manager was not authorized to access or verify the school's personnel files. When Father's attorney returned the business manager's call, the business manager further explained that the school's personnel files were kept locked in her office and added that the school would be closed for two days at the beginning of the following week. The business manager then asked how she should deliver Mother's employment file to Father's attorney.

¶ 7 Father's attorney informed the business manager that the documents could be scanned and faxed or emailed directly to her. Father's attorney also indicated to the business manager that by transmitting the documents by fax or email in advance of the hearing, there was a good chance that the business manager would not have to testify or that the business manager could testify by phone to verify the documents, so long as Mother's attorney agreed. The school's business manager immediately scanned Mother's employment file in its entirety and emailed it to Father's attorney. Less than an hour after issuing the corrected subpoena duces tecum, Father's attorney was in possession of Mother's entire employment file.

¶ 8 That same evening, Father's attorney forwarded the documents to Mother's attorney by email and requested that Mother waive the need for the business manager's appearance at the hearing. Father's attorney also copied Father on the email, thereby providing Father with an electronic copy of Mother's entire employment file. The email from Father's attorney to Mother's attorney stated in its entirety:

We have received Ms. Wiggins' [sic] entire employment file. The email providing it and file [sic] are both attached. We do have a witness subpoenaed to authenticate the documents, explain how the records are kept, and verify that this is the entire file. However, because she has a job to do, she would appreciate having her appearance waived. We are hoping that you will agree to the authenticity of these documents and their admissibility without her testimony. Please advise whether you will stipulate to the admission of these documents. If not, please advise as to whether you will object to the witness testifying by phone. Thank you.

(Emphasis added.)

¶ 9 Because the return of service had not yet been received by Father's attorney from the process server, Father's attorney had not yet provided Mother with formal notice of the subpoena. Nor had Father's attorney provided Mother with any notice of the subpoena.¹ As such, Mother and Mother's attorney had no knowledge of the subpoena prior to Father's attorney's email.

¶ 10 In response, Mother's attorney protested Father's and Father's attorney's possession of Mother's employment file; claimed that it contained confidential and secure financial information and that it was improperly obtained by Father's attorney; and demanded that Father's attorney recover and return or destroy all physical and electronic copies of the documents, including all copies possessed by Father as a result of Father's attorney copying him on the email. Father's attorney refused, maintaining that the employment file had been acquired “via a valid subpoena duces tecum.”

¶ 11 The hearing concerning parenting time and child support was continued, and Mother moved for a protective order and sanctions against Father's attorney concerning the subpoenaed documents. The district court denied Mother's motion without explanation, and Mother's petition for our review followed.

II. Original Jurisdiction and Standard of Review

¶ 12 We first address whether an original proceeding is the proper method to review the trial court order denying Mother's motion for a protective order and sanctions. Exercise of our original jurisdiction under C.A.R. 21 is within our sole discretion. Fognani v. Young, 115 P.3d 1268, 1271 (Colo.2005). Even though a trial court's ruling on a discovery matter is interlocutory in character and is generally not reviewable in a C.A.R. 21 original proceeding, a discovery ruling is not exempt from extraordinary relief if it appears that the order “may cause unwarranted damage to a litigant that cannot be cured on appeal.” Cardenas v. Jerath, 180 P.3d 415, 420 (Colo.2008) (quoting Direct Sales Tire Co. v. Dist. Ct., 686 P.2d 1316, 1318 (Colo.1984)). We have previously exercised our original jurisdiction to review discovery rulings concerning documents that are alleged to be confidential, privileged, or otherwise protected. In re Dist. Ct., 256 P.3d 687, 690 (Colo.2011) (concerning compensation information); Cardenas, 180 P.3d at 420 (concerning medical records); Stone v. State Farm Mut. Auto. Ins. Co., 185 P.3d 150, 155 (Colo.2008) (concerning tax returns). In addition, “[w]e generally elect to hear C.A.R. 21 cases that raise issues of first impression and that are of significant public importance,” Stamp v. Vail Corp., 172 P.3d 437, 440 (Colo.2007), and we have previously exercised our original jurisdiction to review questions of rule interpretation, Fognani, 115 P.3d at 1271 (interpreting Colo. RPC 3.7).

¶ 13 Following these legal standards, we conclude that exercise of our original jurisdiction is appropriate in this case. First, Mother seeks to protect her employment file from discovery, which she alleges contains personal,...