r & Fellman, PC v. Affiniti Colorado, LLC

Citations

• 2019 COA 147

Syllabus

EAGLE-Net was formed to deploy and operate a broadband Internet network, funded by a federal grant, to provide rural schoolchildren with Internet access. Affiniti Colorado, LLC is a limited liability company that provides broadband technology to rural communities. It negotiated and executed a management agreement with EAGLE-Net, based on an Opinion Letter provided by Fellman, acting as EAGLE-Net's general counsel. Under the agreement's terms, Affiniti agreed to manage EAGLE-Net's network and to provide capital funding for the project in exchange, in part, for EAGLE-Net's agreement to grant Affiniti a security interest in its assets. Affiniti later sued EAGLE-Net for breach of the agreement and obtained a judgment. Due to a depletion of assets, EAGLE-Net dissolved and ceased to exist, and Fellman no longer represented EAGLE-Net. Affiniti then brought a negligent misrepresentation action against Fellman premised on alleged misrepresentations in the Opinion Letter, and the court approved discovery of attorney-client communications between Fellman and EAGLE-Net. On interlocutory appeal under C.A.R. 4.2, Fellman challenged the court's discovery ruling, claiming that the attorney-client privilege survives the dissolution of a corporation. The attorney-client privilege does not survive a corporation's dissolution when (1) no one with the authority to assert or waive the privilege remains, and (2) there are no ongoing post-dissolution proceedings. Here, the record supports the district court's finding that EAGLE-Net is a dissolved corporation with no management to act on its behalf and Fellman lacks the authority to invoke the privilege. The order was affirmed.