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Alcon v. Spicer6/6/2005
osure by providing a privilege log identifying the documents withheld and explaining the privilege claim. See PaineWebber Group v. Zinsmeyer Trusts P'ship, 187 F.3d 988, 992 (8th Cir. 1999). The documents must be described in the log with sufficient detail so that the opposing party and, if necessary, the trial court can assess the claim of privilege as to each withheld communication. C.R.C.P. 26(b)(5); F.R.C.P. 26(b)(5); Pina v. Espinoza, 130 N.M. 661, 668, 29 P.3d 1062, 1069 (N.M. Ct. App. 2001). Requiring the party asserting the privilege to furnish information on its applicability was intended to reduce the need for in camera inspections of documents. Advisory Committee Notes on F.R.C.P. 26(b)(5). Ultimately, if after reviewing the privilege log, the party seeking discovery still contends the privilege does not apply and the parties cannot resolve the dispute informally, it can request that the trial court perform an in camera inspection of the challenged documents entered on the privilege log. PaineWebber, 187 F.3d at 992.
Other state courts have adopted the federal procedure for discovery requests involving claims of privilege. See, e.g., Pina, 130 N.M. at 667, 29 P.3d at 1068; Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 427, 997 P.2d 681, 694 (2000); State ex rel. Atchison, Topeka and Santa Fe Railway Co. v. O'Malley, 898 S.W.2d 550, 554 (Mo. 1995). Colorado, unlike these other states, has adopted a rule equivalent to F.R.C.P. 26(b)(5), and we think the rule offers a workable solution to, and the best allocation of burdens in, discovery disputes involving claims of privilege for medical records.
Consistent with our rule that the claimant of the privilege bears the burden of establishing its applicability, the party asserting the privilege must expend the bulk of the effort by compiling the privilege log. Clark, 668 P.2d at 8 (burden of establishing applicability of privilege). Although the trial court may still be called upon to review allegedly privileged documents in camera, this review will be narrowed to the documents on the privilege log that the party seeking discovery challenges, as opposed to, for example, a lifetime of a patient's complete medical records.
On remand, Alcon should be given the opportunity to reassert the physician-plaintiff privilege through compilation of a privilege log. Those records for which she has waived the privilege because they contain communications involving her lower back, neck, shoulder, or chipped tooth, or depression relating to the accident, must be turned over to Spicer. Records for which Alcon contends the physician-patient privilege has been retained must be listed document by document and described so that Spicer and the trial court can assess the applicability of the privilege. By listing a document on the log, Alcon is certifying that it contains information acquired by her physician necessary for treatment and unrelated to the cause and extent of injuries and damages claimed in the lawsuit. If Spicer disagrees with Alcon's assertions of privilege he can, as a last resort, ask the trial court to review in camera specific documents from the log. In reviewing challenged documents, the trial court should determine whether Alcon has waived the physician-patient privilege consistent with this opinion and prior precedent.
B. Tax Returns
The trial court also erred in ordering Alcon to produce her tax returns for the past ten years. Alcon opposes the request for her tax returns by asserting that they are confidential and irrelevant. As such, she claims that Spicer must be able to demonstrate a compelling need for the information in the returns before she can be ordered to disclose them. Because
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