implied waiver in Colorado

2018Hoffman , 87 P.3d at 864 (holding that "the district court erred when it considered [the defendant's] need for the information [to establish its defense] as a pertinent factor in determining whether the privilege had been waived"); Johnson v. Trujillo , 977 P.2d 152 , 157 (Colo. 1999) (declining to find an implied waiver even though the plaintiff's mental health records were relevant to the defendant's causation defense).

2011See, eg., Johnson v. Trujillo, 977 P.2d 152, 157 (Colo.1999) (plaintiff made no independent tort claims for either intentional or negligent infliction of emotional distress and sought no compensation for the expenses incurred in obtaining counseling).

2018Id. ; People v. Madera , 112 P.3d 688 , 691 (Colo. 2005). ¶ 17 Although our cases have not expressly delineated what it means for privileged communications to be placed "at issue" by way of a claim or defense, we note that the fact that privileged information might become relevant in a given lawsuit could not alone be enough to establish an implied waiver.

2018See Trujillo , 144 P.3d at 543 ; see also Madera , 112 P.3d at 691 (explaining that the implied waiver doctrine "gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it") (quoting Bittaker v. Woodford , 331 F.3d 715 , 720 (9th Cir. 2003) ).

2025Id. at 10 . ¶28 In determining whether the privilege has been impliedly waived, "the proper inquiry is not whether the information sought may be relevant." People v. Sisneros , 55 P.3d 797, 801 (Colo. 2002).

2018Specifically, "a plaintiff in a personal injury case impliedly waives the physician-patient privilege with respect to matters known to the physician that are relevant in determining the cause and extent of injuries which form the basis for a claim for relief." Id. at 525 (citing Clark , 668 P.2d at 10 ).

2025Cf. Sisneros, 55 P.3d at 802 (because the “mere threat of disclosure destroys the sanctity of the psychologist-patient relationship,” courts “will not hastily find an implied waiver” when a sexual assault victim testifies in a criminal trial). ¶ 70 And we can’t conclude on this record that the materials presented show that C.M. intended to waive her privilege as to her 32 mental health treatment.

2016For this reason, we will not hastily find an implied waiver of the privilege in this type of situation.' Id. at 802 . ¶13 This framework makes plain that a juvenile does not waive the privilege when she seeks a reverse-transfer hearing because she has not “injected her physical or mental condition into the case.” See id. at 801 .

2025“If there is evidence in the record that defense counsel made a conscious decision to forego raising a claim for strategic or other reasons, we will not hesitate to find an implied waiver.” Phillips v. People, 2019 CO 72 , ¶ 22 n.4; see also People v. Garcia, 2024 CO 41M , ¶ 47 3 (explaining that courts find implied waiver in certain cases to address the concern that a “defendant could intentionally forego objecting to an error ‘as a strategic parachute to preserve an avenue of attack on appeal’” (quoting Stackhouse v. People, 2015 CO 48, ¶ 16 )).

2025And in some cases, the supreme court’s willingness to find an implied waiver has been strengthened if there is “a concern that a defendant could intentionally forego objecting to an error ‘as a strategic parachute to preserve an avenue of attack on appeal.’” Id. at ¶ 47 (quoting Stackhouse v. People, 2015 CO 48, ¶ 17 ). 8 ¶ 24 Waiver extinguishes error and therefore appellate review.

2025To reach the threshold needed for implied 8 waiver, the party’s “conduct must be free from ambiguity and clearly manifest the intent not to assert the benefit.” Id.; see also In re Marriage of Robbins, 8 P.3d 625, 630 (Colo. App. 2000).

2007In re Marriage of Robbins, 8 P.3d 625, 630 (Colo.App.2000).

2025See Forgette v. People, 2023 CO 4, ¶¶ 26, 34 . 20 the deadline but nonetheless accepts a restitution hearing date beyond the deadline.

2025And in articulating the standard for implied waivers of statutory rights, Roberson relies on Forgette v. People, a case involving the “intentional relinquishment of a known right or privilege.” 2023 CO 4, ¶ 28 (quoting People v. Rediger, 2018 CO 32, ¶ 39 ).

2025See People v. Stanley, 56 P.3d 1241, 1245 (Colo. App. 2002) (explaining that the record as a whole must establish the defendant knowingly and voluntarily undertook a course of conduct showing an unequivocal intent to abandon legal representation for an implied waiver to be valid). ¶ 29 Moreover, given the inadequate Arguello advisements, we cannot conclude that McCall’s actions amounted to a constructive Sixth Amendment waiver.

2025See Stanley, 56 P.3d at 1245 (“Where the 15 advisement has been found deficient, courts rarely recognize an implied waiver.”).

2020If it could, then the privilege would lose much of its protective force because ‘privileged information may be in some sense relevant in any lawsuit.’” Id. at ¶ 17, 419 P.3d at 575 (quoting In re Cty. of Erie, 546 F.3d 222, 229 (2d Cir. 2008)). ¶24 Accordingly, we have indicated that “to establish an implied waiver based on the assertion of a claim or defense, a party must show that the client asserted a claim or defense that depends on privileged information.” Id. at ¶ 18, 419 P.3d at 575 .

2018If it could, then the privilege would lose much of its protective force because "privileged information may be in some sense relevant in any lawsuit." See, e.g. , In re Cty. of Erie , 546 F.3d 222 , 229 (2d Cir. 2008). ¶ 18 We have thus suggested that to establish an implied waiver based on the assertion of a claim or defense, a party must show that the client asserted a claim or defense that depends on privileged information.

2020See Wesp, 33 P.3d at 198 (“To prove an implied waiver, there must be evidence showing that the privilege holder, ‘by words or conduct, has impliedly forsaken his claim of confidentiality with respect to the communication in question.’” (quoting Miller v. Dist.

2015Id. ; see also People v. Trujillo , 144 P.3d 539, 543 (Colo. 2006). “To prove an implied waiver, there must be evidence showing that the privilege holder, by words or conduct, has impliedly forsaken his claim of confidentiality with respect to the communication in question.’” Wesp , 33 P.3d at 198 (internal quotation marks omitted).

2018Hoffman , 87 P.3d at 864 (holding that "the district court erred when it considered [the defendant's] need for the information [to establish its defense] as a pertinent factor in determining whether the privilege had been waived"); Johnson v. Trujillo , 977 P.2d 152 , 157 (Colo. 1999) (declining to find an implied waiver even though the plaintiff's mental health records were relevant to the defendant's causation defense).

2005Hoffman v. Brookfield Republic, Inc., 87 P.3d 858, 859 (Colo.2004); Johnson v. Trujillo, 977 P.2d 152, 153 (Colo.1999).

2026Id. ¶ 17 Even though an implied waiver is voluntary, the trial court must also ensure that the defendant made the waiver knowingly and intelligently.

2012Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' " See also People v. Montour, 157 P.3d 489 , 498 (Colo.2007) (noting that the general standard for the waiver of a constitutional right is "an intentional relinquishment of a known right or privilege"); People v. Rodriguez, 209 P.3d 1151 , 1160 (Colo.App.2008) (noting the distinction between waivers and forfeitures), aff'd, 238 P.3d 1283 (Colo.2010) ; cf. People v. Arguello, 772 P.2d 87 , 93 (Colo.1989) (noting that an implied waiver of counsel

2025“If there is evidence in the record that defense counsel made a conscious decision to forego raising a claim for strategic or other reasons, we will not hesitate to find an implied waiver.” Phillips v. People, 2019 CO 72 , ¶ 22 n.4; see also People v. Garcia, 2024 CO 41M , ¶ 47 3 (explaining that courts find implied waiver in certain cases to address the concern that a “defendant could intentionally forego objecting to an error ‘as a strategic parachute to preserve an avenue of attack on appeal’” (quoting Stackhouse v. People, 2015 CO 48, ¶ 16 )).

2025An implied waiver requires conduct by a party or counsel “that manifests an intent to relinquish a right or 4 Though Burden disagrees that a waiver of the restitution deadline need only be voluntary, he acknowledges that we are bound by the supreme court’s holding that a voluntary waiver is enough. 4 privilege” or actions that are “inconsistent with its assertion.”5 Id. (citation omitted); see also Phillips v. People, 2019 CO 72, ¶ 21 (noting that implied waivers require unequivocal conduct that clearly manifests an intent to relinquish the right).

2023We stressed that the “nature 15 and scope of an implied waiver depends on the context in which it arises.” Id. at 692 .

2018Id. ; People v. Madera , 112 P.3d 688 , 691 (Colo. 2005). ¶ 17 Although our cases have not expressly delineated what it means for privileged communications to be placed "at issue" by way of a claim or defense, we note that the fact that privileged information might become relevant in a given lawsuit could not alone be enough to establish an implied waiver.

2026Phillips v. People, 2019 CO 72, ¶ 21 ; Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984). ¶ 42 After the court read Johnson’s guilty verdicts, defense counsel requested that the court poll the jury, and the court did so.

1997Department of Health v. Donahue, 690 P.2d 243 (Colo.1984); Burman v. Richmond Homes Ltd., 821 P.2d 913 (Colo.App.1991).

2025“To constitute an implied waiver, the conduct must be free from ambiguity and clearly manifest the intent not to assert the benefit.” In re Marriage of Hill, 166 P.3d 269, 273 (Colo. App. 2007).

2025An implied waiver occurs “when a party engages in conduct which manifests an intent to relinquish the right or acts inconsistently with its assertion.” Id.

2025See People v. Abbott, 638 P.2d 781, 785 (Colo. 1981) (holding that the failure of the defendant to appear constituted an implied waiver of the preliminary hearing).

1983People v. Abbott, 638 P.2d 781 (Colo.1981); People v. Moody, 630 P.2d 74 (Colo.1981); People ex rel.

2020If it could, then the privilege would lose much of its protective force because ‘privileged information may be in some sense relevant in any lawsuit.’” Id. at ¶ 17, 419 P.3d at 575 (quoting In re Cty. of Erie, 546 F.3d 222, 229 (2d Cir. 2008)). ¶24 Accordingly, we have indicated that “to establish an implied waiver based on the assertion of a claim or defense, a party must show that the client asserted a claim or defense that depends on privileged information.” Id. at ¶ 18, 419 P.3d at 575 .

2020If it could, then the privilege would lose much of its protective force because ‘privileged information may be in some sense relevant in any lawsuit.’” Id. at ¶ 17, 419 P.3d at 575 (quoting In re Cty. of Erie, 546 F.3d 222, 229 (2d Cir. 2008)). ¶24 Accordingly, we have indicated that “to establish an implied waiver based on the assertion of a claim or defense, a party must show that the client asserted a claim or defense that depends on privileged information.” Id. at ¶ 18, 419 P.3d at 575 .

2018Alcon , 113 P.3d at 739 . ¶ 19 As stated previously, the party asserting protection from a privilege bears the burden of establishing the applicability of that privilege.

2006But, an implied waiver does not grant adverse parties access to the entirety of one's medical history: "[IJmplied waivers have always been limited by the circumstances of the case, rather than amounting to consent to general disclosure of all the patient's communications with his or her physician." Alcon, 113 P.3d at 739 .

2026Although the “mere presence of a third party does not immediately waive the [therapist-client] privilege,” People v. Covington, 19 P.3d 15, 20 (Colo. 2001), the presence of persons who are not necessary for consultation to occur does constitute a waiver of the privilege, D.A.S. v. People, 863 P.2d 291, 295 (Colo. 1993).

2026Although the “mere presence of a third party does not immediately waive the [therapist-client] privilege,” People v. Covington, 19 P.3d 15, 20 (Colo. 2001), the presence of persons who are not necessary for consultation to occur does constitute a waiver of the privilege, D.A.S. v. People, 863 P.2d 291, 295 (Colo. 1993).

2025Cf. Roberson, ¶ 7; see also People v. Babcock, 2025 CO 26 , ¶ 30 (concluding that defense counsel’s 5 As directed, we apply the standard for an implied waiver set out in People v. Roberson, 2025 CO 30 , ¶ 13.