Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 222-4

Filed 01/31/2007

Page 1 of 3

Case 1:04-cv-01067-MSK-CBS

Document 222-4

Filed 01/31/2007

Page 2 of 3 277

Rob Brady - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here today? I believe this is fair game within the rules when it comes to -THE COURT: Let's find out if there is even an

objection, Mr. Brennan. MR. BRENNAN: MR. WESOKY: Sorry. If there is a conversation, I object to

the attorney-client privilege, your Honor. THE COURT: MR. WESOKY: This firefighter is your client? Well, under -- I thought your Honor's

prior ruling that he was an adverse witness. THE COURT: I simply said he identified with the

defendant in this case, and that the nexus was sufficient to allow cross-examination by the plaintiff. That's a much different issue than the attorney-client privilege. This man your client, Mr. Wesoky? As an officer of the Denver Fire

MR. WESOKY:

Department, the fire department being an agency of the city, as an officer, yes, the fire department officers are considered within the clients of the city. THE COURT: Reply, Mr. Brennan. Sorry. I wasn't sure you wanted one.

MR. BRENNAN: Sorry, your Honor.

This casts such a broad net with respect to

what constitutes a privileged communication as to be almost ludicrous in light of the well-established jurisprudence under

Case 1:04-cv-01067-MSK-CBS

Document 222-4

Filed 01/31/2007

Page 3 of 3 278

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Rob Brady - Redirect the Upjohn case and others with respect to those who are within the control group of an organization and whose communications with counsel may therefore properly be the subject of the claim of privilege because they are in a position to bind the entity by their statements. Mr. Brady is not in a position -THE COURT: Mr. Brennan, that's enough. I don't want

these objections speechified, counsel, by either of you in the presence of this jury. I have prohibited that in my Trial A

Preparation Conference Order, and it's gone on long enough.

very succinct response is all that I need, and I understand the response. I find there is no attorney-client privilege with respect to this particular conversation. Instead, I find this

is a conversation that occurs regularly and routinely between a witness and an attorney in preparation for trial. Nothing less. There has been no showing or claim of privileged communication in that activity of trial preparation. So I find Nothing more.

there to be no attorney-client privilege in this specific context with this specific conversation, and therefore, the objection is noted but respectfully overruled. Now, please reiterate your question, Mr. Brennan. BY MR. BRENNAN: Q Mr. Brady, you told us that you met with Mr. Wesoky for the