Wyman v. Wyman, 1:19-cv-03437

Plaintiff Thomas L. Wyman (son) sues Defendant Louis M. Wyman (father) in a contract dispute alleging the father agreed in 2001 to devise 1/10 of his estate (including an interest in a life insurance policy) in exchange for forgiveness of a promissory note.
Thomas Thornberry (Keller Law, LLC) was Defendant’s estate-planning attorney and holds a file containing wills, trusts, drafts, and communications at issue.
Plaintiff served a subpoena on Thornberry seeking “all documents” relating to Louis Wyman’s will, trusts, or estate plan; the subpoena did not distinguish privileged vs. non-privileged material.
Plaintiff conceded he did not seek attorney-client privileged communications but disputed which documents in Thornberry’s file were privileged; non-privileged materials have been produced and Defendant provided a privilege log for withheld items.
Defendant moved to quash the subpoena as to the withheld estate-planning documents; the court previously found privilege waived as to one particular letter but not the broader file.
The magistrate judge concluded the withheld will/trust documents and related communications remain privileged while Defendant is alive and granted the motion to quash.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Thornberry’s estate-planning documents (will, trust, drafts, communications) are protected by attorney-client privilege	Documents are relevant to proving the 2001 agreement; plaintiff does not seek truly privileged communications but disputes which items are privileged	Documents and communications are privileged; Defendant (client) supplied a privilege log; non-privileged items already produced	Withheld documents are protected by the attorney-client privilege and are not discoverable while the testator is alive; subpoena quashed as to those items
Whether Keller Law’s failure to respond waived privilege or objections	Keller Law’s nonresponse to the subpoena amounted to waiver	Privilege is held by the client (Defendant); only the client can waive privilege; Defendant has standing to assert privilege	No waiver established as to the estate-planning documents; Defendant may assert privilege and move to quash

KCOM, Inc. v. Employers Mut. Cas. Co., 829 F.3d 1192 (10th Cir. 2016) (state substantive law, federal procedure in diversity cases)
Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695 (10th Cir. 1998) (Federal Rule of Evidence 501: state law supplies privilege rules in diversity)
People v. Madera, 112 P.3d 688 (Colo. 2005) (defines attorney-client privilege under Colorado law)
Wesp v. Everson, 33 P.3d 191 (Colo. 2001) (privilege requires expectation of confidentiality; party asserting privilege bears burden)
Losavio v. Dist. Court, 533 P.2d 32 (Colo. 1975) (client, not counsel, holds and may waive the privilege)
In re Shapter's Estate, 85 P. 688 (Colo. 1905) (Colorado recognition that communications re: wills are confidential during testator’s life)
United States v. Osborn, 561 F.2d 1334 (9th Cir. 1977) (communications about preparing a will are privileged during testator’s lifetime)