Junda v. Beyond

23CA0594 Junda v Beyond 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0594

City and County of Denver District Court No. 20CV33803

Honorable Marie Avery Moses, Judge

Honorable Martin F. Egelhoff, Judge

Justin Junda and Big Toe Ventures, LLC, a Delaware limited liability company,

Plaintiffs-Appellants and Cross-Appellees,

v.

Beyond Broadway, LLC d/b/a Livwell Enlightened Health, a Colorado limited

liability company, Delt Services LLC, Green Brands Canada Ltd, Green Brands

LLC, Green Kiwi 1 LLC, Green Kiwi 2 LLC, Green Kiwi 3 LLC, Green Kiwi 4

LLC, Green Kiwi 5 LLC, John Lord, Kiwi LLC, Livwell Holdings Inc., Livwell I

LLC, Livwell II LLC, Livwell III LLC, Livwell Inc., Livwell IV LLC, Livwell IX LLC,

Livwell Michigan LLC, Livwell V LLC, Livwell VI LLC, Livwell VII LLC, and

Livwell VIII LLC,

Defendants-Appellees and Cross-Appellants.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE FOX

Grove and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Allen Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone, Jordan Factor,

Jennifer E. Schlatter, Vandana S. Koelsch, Jeremy T. Jonsen, Denver,

Colorado, for Plaintiffs-Appellants and Cross-Appellees

Wheeler Trigg O’Donnell LLP, Hugh Q. Gottschalk, Ryan W. Cooke, Rebekah L.

Nickel, Denver, Colorado, for Defendants-Appellees and Cross-Appellants

1

¶ 1 Plaintiffs and cross-appellees, Justin Junda and Big Toe

Ventures, LLC (collectively, Junda), appeal the trial court’s orders

dismissing, for discovery violations, their claims against defendants

and cross-appellants, Beyond Broadway, LLC (d/b/a LivWell

Enlightened Health), Delt Services LLC, Green Brands Canada LTD,

Green Brands LLC, the five Green Kiwi LLC entities, John Lord,

Kiwi LLC, LivWell Holdings Inc., the nine LivWell LLC entities,

LivWell Inc., and LivWell Michigan LLC (collectively, LivWell).

1

Defendants and cross-appellants cross-appeal the trial court’s

exclusion of evidence pertaining to the plaintiffs’ discovery

misconduct and the trial court’s corresponding credibility

determinations. We affirm the trial court’s judgment.

I. Background

¶ 2 On April 12, 2019, Junda and LivWell entered into a “letter of

intent” agreement detailing that Junda would raise $200 to $300

million to facilitate the expansion of LivWell’s cannabis business,

with an initial $50 million required by May 31, 2019, and the next

1

Green Kiwi 1, 2, 3, 4, and 5 LLC are all defendants and cross-

appellants in this action. LivWell I, II, III, IV, V, VI, VII, VIII, and IX

LLC are also all defendants and cross-appellants in this action.

2

$50 million due by October 1, 2019. If he raised the capital, Junda

would share in LivWell’s profits. But Junda failed to raise the

required $50 million by the May deadline and he never raised $200

million.

¶ 3 Around the same time, Junda’s business partner, Peter van de

Put (who resides in the Netherlands), subcontracted with LivWell to

create an e-commerce platform for LivWell’s website (the platform)

to facilitate online cannabis purchases, allegedly using software —

the “Source Code”

2

— that Junda and van de Put co-developed and

co-owned. The platform relied on the supposedly pre-existing

Source Code and allegedly created economic value for LivWell

without compensating Junda.

¶ 4 Junda and van de Put had become business partners in 2016

after signing a formal agreement (the partnership agreement)

detailing that Junda and van de Put would each own 50% of any

2

This software was interchangeably referred to as the “framework”

and the Source Code in the trial court. Junda testified that the

Source Code resulted from an agreement with van de Put to merge

various software components, written in multiple software

languages and developed separately. According to Junda, van de

Put merged these components into a single software language,

“Ruby on Rails.”

3

product they developed together and share any resulting profits.

Junda contended that he and van de Put developed the Source

Code in 2018, before working with LivWell in 2019, and each owned

50% based on the partnership agreement.

¶ 5 Later, Junda and van de Put also entered into an agreement

(the delegation agreement) providing Junda the authority to pursue

the litigation over the Source Code on behalf of the partnership and

requiring van de Put to cooperate with, and provide any needed

documents or materials to, Junda.

¶ 6 Junda’s claims against LivWell were premised on alleged

violations of the letter of intent and later agreements, and LivWell’s

alleged use of the Source Code.

A. First Sanctions Order

¶ 7 Despite the importance of the Source Code and its

development to Junda’s claims, Junda did not provide a copy of the

Source Code in his initial disclosures, nor did he do so when

LivWell requested discovery on the platform’s development. Junda

did, however, provide a copy of a “stand-alone” version of the

Source Code — one that existed apart from the platform — to his

own expert for analysis. As a result, LivWell twice moved for

4

C.R.C.P. 37(a)(2) sanctions against Junda for his failure to provide

information and documents related to the Source Code.

¶ 8 Regarding the first motion for sanctions, the trial court found

Junda “deliberately withheld this critical information” and excluded

evidence of the stand-alone Source Code. However, the sanction

was later vacated, by agreement of the parties, when trial was

continued.

B. Second Sanctions Order

¶ 9 In August 2022, the parties notified the trial court of another

discovery impasse concerning the Source Code. LivWell sought a

“forensically acquired copy of the Source Code”

3

and the hard drive

it was stored on to discover metadata information and learn more

about its “creation, storage, and modification” — matters in dispute.

LivWell expressed concern because it learned that in 2021 — during

the litigation — van de Put destroyed the hard drive storing a

version of the Source Code allegedly created in 2018, before his and

3

“Forensic imaging makes an exact copy of a computer hard drive

without destroying the original hard drive. A computer expert can

search the image as if it were the computer without depriving the

computer’s owner of his or her machine.” Gateway Logistics, Inc. v.

Smay, 2013 CO 25, ¶ 6 n.3.

5

Junda’s work with LivWell, and transferred the Source Code files to

a new laptop.

¶ 10 The trial court held a status conference to discuss the impasse

on August 26, 2022. Junda’s counsel, arguing against the forensic

acquisition, stated: “I want to be very clear, there has never been a

hard drive with this code that shows its development through the

development process. It simply doesn’t exist.” After the trial court

expressed confusion, since briefing suggested that a hard drive

existed, Junda’s counsel explained: “What exists, or what existed on

the 2018 laptop, and now exists in the laptop in the Netherlands

today is a copy of the file that was transmitted by Mr. van de Put

from the computer that was upgraded to the one he has now.”

Junda’s counsel also argued that requesting the full hard drive

would unduly intrude on van de Put’s privacy because his laptop

contained personal and other business matters.

¶ 11 The trial court found that the information should have been

disclosed in discovery because it was directly relevant to Junda’s

Source Code-related claims. Further, it found that the need for a

forensic acquisition of the hard drive was “particularly acute”

because Junda’s and van de Put’s deposition testimony concerning

6

the hard drive was “extremely evasive,” and it remained unclear if

and when the hard drive was destroyed. Thus, the trial court

granted LivWell’s request for forensic acquisition of the hard drive

and the Source Code.

¶ 12 In October 2022, Junda’s counsel notified the court that she

could no longer represent Junda. And, pursuant to Colo. RPC

3.3(a)(3), she notified the trial court that — contrary to what she

said at the August 26 hearing — she no longer had good faith to

believe that van de Put’s hard drive contained personal information

or that a forensic acquisition would invade his privacy. She also

noted that Junda’s declaration that there was never a hard drive

containing only the Source Code was false. Finally, she noted that

van de Put’s declaration that he had “securely disabled” the old

2018 computer after transferring the files to a new computer in

2021 was false. The November trial was later continued to March

2023, allowing Junda to retain new counsel.

¶ 13 LivWell next moved for sanctions and to terminate Junda’s

claims based on the alleged fabrication of electronic evidence.

LivWell alleged that Junda and van de Put (1) purchased a new

computer after the trial court ordered a forensic acquisition of the

7

Source Code and hard drive; (2) transferred a copy of the Source

Code to it and manipulated the operating system to show the files

had been added in 2021; and (3) manipulated the Source Code files

themselves to show they had been edited in 2018 (when Junda

alleged the Source Code was created).

¶ 14 In response, Junda argued that sanctions were inappropriate

because he had never possessed or controlled the laptop and was

not responsible for a nonparty’s actions. Moreover, Junda claimed

he had never communicated with or instructed van de Put

concerning how to provide the laptop — and that, instead, Junda’s

prior counsel spoke with van de Put about complying with the

court’s order.

¶ 15 Asserting that Junda impliedly waived his attorney-client

privilege by faulting former counsel for the laptop’s production,

LivWell subpoenaed Junda’s former counsel to testify concerning

her communications with Junda and van de Put. The trial court

agreed with LivWell that Junda waived his attorney-client privilege.

¶ 16 The trial court held an evidentiary hearing on January 13,

2023, to learn if and how the alleged fabrication occurred. Junda’s

prior counsel testified that she informed Junda and van de Put that

8

the trial court had ordered a forensic acquisition of van de Put’s

personal computer, with his personal files and the hard drive

containing the Source Code, and failure to comply could result in

serious sanctions, including striking Junda’s claims. Prior counsel

also testified that van de Put told her and Junda that the 2018

computer was disposed of by putting a “nail through the hard drive”

after its data was transferred to a new computer.

¶ 17 Prior counsel further testified that she believed Junda was

involved with the issues leading to noncompliance with the court’s

order, given his “substantive” comments after the trial court’s order.

Prior counsel detailed that she had a virtual meeting with Junda

and van de Put — who were both upset with the ruling — to further

discuss the order and reiterate its requirements. Prior counsel also

noted that Junda suggested — unprompted — that there was

nothing in van de Put’s computer that could not be gleaned from

the Source Code files themselves. Thus, they “could buy another

computer and put the files on it and then get the same

information,” which prior counsel made clear was not an option.

Unbeknownst to prior counsel, on the same day the court’s August

9

26, 2022, order was issued, van de Put had already purchased a

new MacBook laptop.

¶ 18 Soon after, van de Put informed prior counsel that the

requested laptop had been shipped for forensic acquisition. Upon

its arrival, prior counsel learned that the laptop had a “small data

profile,” meaning it had very little information on it. This

contradicted van de Put’s earlier claim that the laptop contained a

large amount of personal and other business files, so prior counsel

asked Junda and van de Put about the inconsistency.

¶ 19 Van de Put informed prior counsel that she was “mistaken” —

the laptop contained only the stand-alone Source Code, it had never

contained his personal or other business files. Van de Put now said

that he purchased the laptop in February 2021, and the reason it

only contained the Source Code was because he purchased the

laptop while still working with LivWell to develop the platform, but

once he was terminated he decided not to transfer additional files.

Junda expressed no surprise at this revelation.

¶ 20 Prior counsel testified that Junda “was one of the most

involved client[s] I’ve ever worked with,” that he was extensively

involved in discovery discussions, and that she believed that Junda

10

was actively speaking with van de Put outside of her presence.

Indeed, LivWell’s counsel pointed to disclosed emails with prior

counsel indicating that Junda and van de Put communicated about

discovery issues and the Source Code, and that Junda knew about

prior counsel’s communications with van de Put.

¶ 21 A defense expert in computer forensics and software

engineering analysis, Dr. Gianturco, also testified about the

analysis of the laptop. Gianturco first explained that a forensic

acquisition was a thorough analysis of a computer, detailing that it

“provides all of the information generated by all of the logs and

services and processes running on the computer the entire time the

computer was in operation.”

¶ 22 From his analysis, Gianturco was able to conclude that “the

computer had been manipulated explicitly . . . to make it appear

that actions happened when they had not, in fact, happened.”

Specifically, the Source Code was transferred to the computer

shortly after first becoming operational, and it was one of the few

items loaded onto the computer. It was evident that a user named

“Peter” had taken deliberate steps to make it seem like the Source

Code files were transferred to the computer in February 2021

11

instead of September 2022, by changing the operating system time

to February 2021, transferring the files, and then resetting the time

back.

¶ 23 Learning this, Gianturco next examined the Source Code files

and discovered that, while the metadata for the files indicated that

they were edited on separate dates across 2018, 441 of 442 files

showed that they had been “last modified” at the exact same time of

day, 5:52 a.m., which was highly unlikely for developers creating

software over time. The Source Code files also appeared to have

been deliberately manipulated to show they were created in 2018

(consistent with Junda’s case theory).

¶ 24 When asked what could explain these anomalies, Gianturco

stated that he was “100 percent sure” that the computer had been

manipulated and could think of only one explanation for why each

Source Code file showed that it was modified at the exact same time

— “fraud.”

¶ 25 Junda testified that he had never been in possession of the

Source Code (or a copy), that van de Put was the “only holder” of

the code, and that he did not know van de Put had a stand-alone

copy of the Source Code until February 2022. Junda also testified

12

that he never asked van de Put to provide the requested computer

pursuant to his authority in the delegation agreement, arguing this

was counsel’s job instead.

¶ 26 On January 23, 2023, the trial court issued a detailed and

thorough order siding with LivWell and dismissing Junda’s claims

with prejudice. The trial court found that the laptop provided for

forensic acquisition, purchased the day of the court’s August 26,

2022, order, was “intentionally and nefariously manipulated.” This

manipulation was designed to make it falsely appear that the

Source Code files had been transferred to the computer in February

2021 to be consistent with Junda and van de Put’s claims. The

trial court also found that the last-modified time stamps on the

files, modified to make it appear that the files pre-dated van de Put

and Junda’s 2019 work with LivWell, were also intentionally

manipulated. The trial court thus found, given these fabrications

and the lack of supporting contemporaneous documentation about

the Source Code’s development, that “Junda’s testimony and

declarations regarding his and van de Put’s development of the

Source Code prior to 2019 lacks all credibility.”

13

¶ 27 The trial court also found that Junda was “personally and

actively” involved in the decisions leading to van de Put’s production

of the manipulated computer. The trial court observed that Junda’s

communications indicated he was speaking frequently with counsel

and van de Put, and communicated with van de Put separately.

Further, Junda’s claimed ignorance of the requirements of the

court’s August 26 order lacked credibility, and his failure to ask van

de Put to comply with the order indicated personal culpability.

¶ 28 As a result, the trial court found there was clear and

convincing evidence that plaintiffs fabricated the computer and the

Source Code file evidence, and that Junda was personally involved.

The court concluded that dismissing all of Junda’s claims was the

only appropriate sanction. It noted that “Plaintiffs’ conduct has

prejudiced LivWell, tainted the judicial process, and must be

punished severely — not just to punish Plaintiffs, but to remedy the

prejudice to LivWell, and to deter future litigants from engaging in

such egregious conduct.”

¶ 29 Finally, the trial court found that even if Junda was not

personally involved in the fabrication, van de Put’s actions could be

imputed to Junda. Junda had control over the Source Code and

14

computer because the delegation agreement gave him explicit

authority to require van de Put to produce both. Further, the trial

court noted that every partner serves as an agent of a partnership;

thus, because of their partnership agreement, van de Put acted as

Junda’s agent when he fabricated the evidence.

C. LivWell’s Counterclaims

¶ 30 With Junda’s claims dismissed, the only remaining issues for

trial were LivWell’s fraud counterclaims — claiming that Junda

misrepresented that he had ready investors and would invest

millions of dollars of his own money into LivWell.

4

LivWell argued

in its trial brief that Junda’s fabrication of evidence, and the court’s

determinations of his credibility as detailed in the sanctions order,

should be admissible under CRE 608(b) and CRE 404(b) to impeach

4

Between the second sanctions order and trial, Judge Moses

rotated off the case and Judge Egelhoff presided over the trial.

LivWell raised six counterclaims in its answer to the fourth

amended complaint, but later withdrew three of them. The

withdrawn claims were formally resolved in Junda’s favor by a post-

trial final judgment order issued May 9, 2023. This left only

LivWell’s claims for “fraudulent inducement/nondisclosure,”

“fraudulent inducement/false representation,” and “promissory

fraud.” On March 15, 2023, partway through trial, the trial court

disposed of the fraudulent inducement/nondisclosure claim by

granting Junda’s motion for directed verdict.

15

Junda’s credibility. The trial court excluded any evidence of “added

value” Junda allegedly provided LivWell through the Source Code as

a defense to the remaining fraud counterclaims, but it prevented

LivWell from introducing the judicial determinations in the

sanctions order.

¶ 31 During trial LivWell sought to ask Junda if his “claims for

compensation” were dismissed, but the trial court rejected the

request as irrelevant and overly prejudicial. Once the jury left for

the day, LivWell brought up the CRE 608(b) contention again and

asked permission to challenge Junda’s credibility via the sanctions

order.

¶ 32 The trial court requested an offer of proof detailing what

LivWell wanted to ask, noting that introducing the court’s credibility

determinations and the sanctions order would be “extraordinarily

prejudicial.” The court expressed a “strong inclination” against

admission. In LivWell’s offer of proof, it represented that it wanted

to ask three specific questions:

Q: In the last five years, has a court concluded

that your testimony lacked credibility? . . .

16

Q: In the last five years, has a court concluded

you intentionally and repeatedly made false

representations to the court? . . .

Q: In the last five years, has a court concluded

that you willfully falsified evidence?

¶ 33 The next day, Junda rested without presenting a defense and

the jury found in Junda’s favor.

¶ 34 This appeal and cross-appeal soon followed.

II. Analysis

¶ 35 On appeal, Junda raises three claims. He argues that the trial

court erred by (1) finding that he waived his attorney-client privilege

by delegating the collection of discovery evidence to counsel;

(2) ordering Junda to produce van de Put’s laptop; and

(3) dismissing his claims after finding he was personally culpable

for the fabrication and imputing van de Put’s acts to him as his

agent.

¶ 36 On cross-appeal, LivWell argues that the trial court erred by

excluding the prior judicial determination that Junda fabricated

evidence and lacked credibility.

17

A. The Trial Court Did Not Err by Finding Junda Impliedly

Waived Attorney-Client Privilege

¶ 37 Junda first contends that the trial court erred by holding he

impliedly waived his attorney-client privilege with prior counsel.

Junda argues that (1) he never placed his communications with

prior counsel “at issue” by merely denying any involvement in

fabricating evidence because this was unconnected to counsel’s

advice; (2) “a waiver cannot happen in the absence of a privileged

communication”; and (3) the trial court’s findings that he was

involved in the laptop’s production depended on improperly

disclosed privileged communications.

¶ 38 LivWell responds that Junda placed his communications with

prior counsel at issue by claiming he was not involved in the

production of the laptop and that his prior counsel was the only

person who worked with van de Put. In the alternative, LivWell

argues that any error was harmless because most of the testimony

at the sanctions hearing relied on nonprivileged communications.

1. Standard of Review and Preservation

¶ 39 A trial court’s discovery rulings, including determinations of

whether communications are protected by the attorney-client

18

privilege, are reviewed for an abuse of discretion. In re People in

Interest of J.P., 2023 CO 57, ¶ 17; see also Sentinel Colo. v.

Rodriguez, 2023 COA 118, ¶ 35 (“We review a district court’s

conclusions regarding the attorney-client privilege for an abuse of

discretion. But we review application of the attorney-client privilege

de novo.”) (citations omitted). “A trial court abuses its discretion

when its decision is manifestly arbitrary, unreasonable, or unfair,

or when it misapplies or misconstrues the law.” J.P., ¶ 17 (quoting

People in Interest of E.B., 2022 CO 55, ¶ 14).

¶ 40 “To preserve an issue for appeal, all that is necessary is that

the issue ‘be brought to the attention of the trial court and that the

court be given an opportunity to rule on it.’” Dill v. Rembrandt Grp.,

Inc., 2020 COA 69, ¶ 24 (quoting Berra v. Springer & Steinberg, P.C.,

251 P.3d 567, 570 (Colo. App. 2010)). This issue was preserved.

2. Legal Framework and Analysis

¶ 41 “The attorney-client privilege shields from disclosure

communications between an attorney and a client relating to legal

advice,” but as “holder” of the privilege a client “may waive this

privilege either expressly or impliedly.” State Farm Fire & Cas. Co.

v. Griggs, 2018 CO 50, ¶ 16. “[A] client impliedly waives the

19

privilege when he or she (1) discloses privileged communications to

a third party or (2) asserts a claim or defense focusing on advice

given by the attorney, thereby placing the allegedly privileged

communications at issue.” Id. The second means of implied

waiver, “at issue” waiver, is challenged here.

¶ 42 Privileged communications are not placed at issue when an

opposing party makes a claim that implicates such

communications; rather, the holder of the privilege must assert a

claim or defense that puts their privileged communications at issue.

See Rademacher v. Greschler, 2020 CO 4, ¶¶ 30, 34. To place

communications “at issue” and waive the privilege, it is not enough

“that privileged information might become relevant in a given

lawsuit.” Griggs, ¶ 17. Further, “the mere denial of an allegation

does not waive the attorney-client privilege.” Id. at ¶ 20.

[T]o 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. Such a rule makes sense

because as a matter of simple fairness, a party

should not be permitted to assert a claim or

defense that depends on privileged information

while simultaneously relying on the privilege to

keep that same information from the opposing

party.

20

Id. at ¶ 18 (emphasis added) (citations omitted).

¶ 43 For example, in Mountain States Telephone & Telegraph Co. v.

DiFede, the Colorado Supreme Court held that a plaintiff had

waived her attorney-client privilege by placing her communications

with her attorney at issue. 780 P.2d 533, 542-44 (Colo. 1989).

There, the plaintiff made a claim for “fraud-in-the-inducement” after

she alleged that she only signed a separation agreement because of

incorrect legal assurances from her then husband’s attorney. Id.

The defendants raised an affirmative defense, arguing that her

reliance on her husband’s attorney’s advice was unreasonable given

that she met with her own attorney ten days later. Id. at 535, 542-

44.

¶ 44 The court held that because the plaintiff had placed her

knowledge, or lack of knowledge, of the correct legal standard at

issue, she had impliedly waived her attorney-client privilege over

her communications with her attorney on this discrete question. Id.

at 544. It would have been unfair for the plaintiff to “thrust her

lack of knowledge of the correct state of the law into the litigation by

her claim of fraudulent inducement while simultaneously retaining

21

the attorney-client privilege to frustrate attempts” by the defendants

to prove her knowledge and negate her claim. Id.

¶ 45 Here, Junda explicitly argued that LivWell could not prove he

had personal knowledge of, or involvement in, producing the

fabricated evidence, and, as such, sanctions were inappropriate.

But Junda clearly placed his communications with counsel at issue

by making his prior counsel’s communications, and his knowledge

or lack thereof, his primary defense to the sanctions motion. See

Griggs, ¶ 18. Indeed, Junda argued that only his counsel knew of

the discussions with van de Put leading to the fabrication. Junda

averred that

Mr. Junda had no personal involvement in the

production of Mr. van de Put’s computer to

Forensic Pursuit. Rather, his prior counsel

exclusively facilitated the production from Mr.

van de Put to Forensic Pursuit. . . .

Attempting to comply as best they could with

the Court’s order, Plaintiffs instructed their

prior counsel to contact Mr. van de Put and

facilitate the court ordered production. Mr.

Junda had no contact with Mr. van de Put

during this time and relied on his former legal

counsel to handle the matter. . . .

Plaintiffs’ former counsel . . . had several

conversations with Mr. van de Put, urging Mr.

22

van de Put to voluntarily produce the Mac

Pro. . . .

Defendants’ expert’s forensic analysis is clear

that whatever Mr. van de Put did, he did in the

Netherlands on his own volition and/or per the

instructions of Plaintiffs’ prior counsel. . . .

Mr. Junda will testify that he had no

involvement in Mr. van de Put’s production of

the computer drive and relied entirely on his

former counsel. . . .

Mr. Junda had no personal involvement in the

efforts to persuade Mr. van de Put to send a

device containing the Source Code to Forensic

Pursuit. Those conversations transpired

entirely amongst Mr. van de Put, [prior counsel],

and [expert]. . . .

Plaintiffs should not receive the civil-case

equivalent of the death penalty for what

appears to be an error caused, in substantial

part, by a miscommunication between [prior

counsel] and Mr. van de Put. . . .

(Emphases added.)

¶ 46 To summarize these arguments, Junda claimed that he had no

knowledge of the fabrication and blamed it on a miscommunication

between his prior counsel and van de Put. It is difficult to imagine

a clearer example of a litigant placing communications, or lack

thereof, with counsel at issue.

23

¶ 47 Much like in Mountain States, Junda’s defense to the

sanctions motion was that he had no knowledge of or involvement

in the fabrication; thus his defense depended on his knowledge (or

lack thereof). See 780 P.2d at 542-44; Griggs, ¶ 18. Junda cannot

simultaneously blame the fabrication on miscommunication or

misconduct by counsel, invoke the attorney-client privilege, and

prevent LivWell from testing his claims. See Mountain States, 780

P.2d at 544.

¶ 48 Junda’s argument that he did not place a communication at

issue is unavailing. In Mountain States the court recognized that

claiming a lack of knowledge could also implicate the at issue-

waiver. Id. at 543-44 (recognizing unfairness of a client injecting

their “knowledge or lack of knowledge” into a claim, while also

retaining attorney-client privilege to frustrate the opposing party’s

attempts to prove her knowledge and prevail against her claim)

(emphasis added).

¶ 49 Accordingly, the trial court did not abuse its discretion by

concluding that Junda impliedly waived his attorney-client privilege

and by relying, in part, on those communications when sanctioning

him. See Griggs, ¶ 16.

24

B. The Trial Court Did Not Err by Ordering the Production and

Forensic Acquisition of the Laptop

¶ 50 Junda argues that the trial court erred by ordering Junda to

produce van de Put’s laptop when (1) he did not possess, have

custody of, or control over it; and (2) the ordered production

invaded the privacy interests of a nonparty, van de Put, without a

compelling need.

¶ 51 LivWell contends that Junda failed to preserve the argument

that Junda had no possession, custody, or control over the laptop.

But LivWell argues that even if Junda had preserved this

contention, he had control over the laptop because the delegation

agreement authorized him to order its production. LivWell also

argues that the trial court properly considered van de Put’s privacy

interests and balanced them appropriately with its need for the

discovery.

1. Standard of Review and Preservation

¶ 52 We review a trial court’s order compelling discovery, including

ordering the production of electronically stored information and the

imaging of devices, for an abuse of discretion. Gateway Logistics,

Inc. v. Smay, 2013 CO 25, ¶ 13.

25

¶ 53 Junda’s privacy argument was preserved. To LivWell’s

preservation point on the possession, custody, and control

argument, it is correct that Junda failed to raise this issue ahead of

the discovery order, but it was part of Junda’s argument against

sanctions. Thus, it was presented to the trial court. See Dill, ¶ 24.

2. Legal Framework and Analysis

a. van de Put’s Privacy Interests

¶ 54 The scope of discovery is broad and, except for information

protected by privilege, if a matter is relevant to a claim or defense, a

party may obtain discovery to unearth admissible evidence.

Gateway, ¶ 15. But discovery is not unlimited, and if “a party

invokes the right to confidentiality or privacy, the trial court must

balance the policy in favor of broad disclosure with the individual’s

right to keep personal information private.” Id.

¶ 55 “The party requesting the information must always first prove

that the information requested is relevant to the subject of the

action. Next, the party opposing the discovery request must show

that it has a legitimate expectation that the requested materials or

information is confidential and will not be disclosed.” Id. (quoting In

re Dist. Ct., 256 P.3d 687, 691 (Colo. 2011)).

26

¶ 56 If a trial court finds that the opposing party has a “legitimate

expectation of privacy” in the materials or documents requested,

then

[u]nder our balancing test, the trial court must

require the requesting party to prove that it

has a compelling need for the information, that

the information being sought is not available

from other sources, and that it is using the

least intrusive means to obtain the

information . . . . The trial court’s findings of

fact under these factors must be apparent

from its order.

Id.

¶ 57 “[I]ndividuals have a privacy interest in their electronically

stored information, including personal correspondence and records,

on their computers, smartphones, and other electronic storage

devices.” Id. at ¶ 19. Therefore, discovery requests that seek

electronically stored information on an individual’s electronic

devices — over an invocation of their right to privacy — require

findings of fact in the court’s order demonstrating that the order

meets the requisite balancing test. Id. at ¶¶ 15, 19. If the trial

court orders discovery of materials held by a nonparty to the

litigation, their status as a nonparty typically “weighs against

disclosure because the nonparty does not have an interest in the

27

outcome of the litigation . . . [and] lacks the expectation of being

required to turn information over to an opposing party.” Id. at ¶ 17.

¶ 58 The court compelled forensic imaging of van de Put’s laptop

and, recognizing the need for additional privacy protections, later

granted a joint amended discovery protection order. It is apparent

from this record that the trial court considered the proper factors

before issuing its order.

¶ 59 The court acknowledged that LivWell demonstrated the need

for forensic acquisition of the hard drive. See id. at ¶ 15. And to

the extent van de Put had a legitimate privacy interest in his

personal information stored electronically on his devices, the trial

court recognized it by granting a protective order.

5

Id. at ¶ 19.

¶ 60 The trial court noted that the need for a forensic acquisition of

the hard drive itself was “particularly acute” because Junda’s and

5

Van de Put’s status as a nonparty would, under normal

circumstances, weigh against disclosure. See Gateway, ¶ 17. But

van de Put had reason to expect that he might have to produce

information to an opposing party because of the delegation

agreement. He explicitly granted Junda the authority to litigate a

case focused on the development of their software on behalf of the

partnership. And van de Put was required under the delegation

agreement to provide any documents or materials Junda might

reasonably request. Further, as a co-owner of the Source Code, he

stood to gain if Junda prevailed in the litigation.

28

van de Put’s deposition testimony regarding whether the computer

was destroyed was, according to the court, “extremely evasive.” See

id. at ¶ 15. The trial court also recognized, based on LivWell’s

expert declaration, that Junda’s suggested alternative to a forensic

acquisition would not provide information on how the Source Code

files were altered and handled over time. And the production order

was only issued after Junda said that there was no contemporary

documentation or materials to otherwise provide information on the

development of the Source Code.

¶ 61 Thus, because only a forensic acquisition of the hard drive

itself could provide the relevant and crucial information LivWell

needed, there was a compelling need for the discovery and no other

means to obtain the needed information. Furthermore, the court’s

protective order aimed to protect van de Put’s privacy interests.

¶ 62 Because it is apparent from the trial court’s orders that it

considered the appropriate factors when balancing the need for the

discovery and van de Put’s privacy interests, it did not abuse its

discretion by ordering the production and forensic acquisition of

van de Put’s laptop. See id.

29

b. Junda’s Control Over the Laptop

¶ 63 The record refutes Junda’s argument that the trial court erred

by ordering production of the laptop because it was not in his

possession, custody, or control.

¶ 64 C.R.C.P. 26(a)(1)(B) requires a party to provide any documents

or materials relevant to their claims or defenses within their

“possession, custody or control.” As relevant here, materials under

the “control” of a litigant are those that are obtainable by the order

or direction of the litigant. Michael v. John Hancock Mut. Life Ins.

Co., 138 Colo. 450, 451-55, 334 P.2d 1090, 1092-93 (1959).

¶ 65 Here, paragraph 4 of the delegation agreement gave Junda

authority to request and obtain materials from van de Put that

Junda reasonably required to pursue the litigation. Thus, Junda

effectively had “control” over the laptop and hard drive with the

Source Code because he could legally direct van de Put to produce

the laptop pursuant to a contractual obligation. Id. Therefore, the

court did not abuse its discretion by ordering the operative laptop’s

production for forensic acquisition.

30

C. The Trial Court Did Not Err by Dismissing Junda’s Claims

¶ 66 Junda lastly argues that the court erred by dismissing his

claims against LivWell as a sanction. According to Junda,

dismissal was a disproportionate sanction because there was no

clear and convincing evidence that he conspired with van de Put to

falsify evidence. Junda also argues that van de Put did not act as

his agent because he had no control over van de Put, van de Put

was a nonparty, and van de Put’s interests were adverse to Junda’s.

We are not persuaded.

1. Standard of Review and Preservation

¶ 67 “We review a trial court’s imposition of sanctions under

C.R.C.P. 37 for abuse of discretion.” Pinkstaff v. Black & Decker

(U.S.) Inc., 211 P.3d 698, 702 (Colo. 2009). “A trial court has

considerable discretion to determine whether sanctions should be

imposed for discovery violations and what those sanctions should

be.” Prefer v. PharmNetRx, LLC, 18 P.3d 844, 849 (Colo. App. 2000).

The trial court’s findings of fact and witness credibility

determinations may not be disturbed on appeal unless they are

clearly erroneous and lack support in the record, and we may not

substitute our own findings of fact for those of the trial court. See

31

M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1383-84 (Colo.

1994).

¶ 68 Because Junda did not preserve the argument that van de

Put’s interests were contrary to his, we decline to address that

contention. See Gestner v. Gestner, 2024 COA 55, ¶ 18 (“In civil

cases, issues not raised in or decided by the district court generally

will not be addressed for the first time on appeal.”). Junda’s other

arguments are preserved. See Dill, ¶ 24.

2. Legal Framework and Analysis

¶ 69 C.R.C.P. 37(b)(2) provides that a trial court may sanction a

party that “fails to obey an order to provide or permit discovery.”

Sanctions can range from deeming certain facts as established, to

“dismissing the action or proceeding or any part thereof,” or

entering default judgment against the noncompliant party.

C.R.C.P. 37(b)(2)(A)-(C).

Generally, sanctions under C.R.C.P. 37

“should be applied in a manner that

effectuates proportionality between the

sanction imposed and the culpability of the

disobedient party.” . . . When discovery

abuses are alleged, courts should carefully

examine whether there is any basis for the

allegation and, if sanctions are warranted,

impose the least severe sanction that will

32

ensure there is full compliance with a court’s

discovery orders and is commensurate with

the prejudice caused to the opposing party.

Pinkstaff, 211 P.3d at 702 (quoting Kwik Way Stores, Inc. v.

Caldwell, 745 P.2d 672, 677 (Colo. 1987)).

¶ 70 “Dismissal, the severest form of sanction, is generally

appropriate only for willful or deliberate disobedience of discovery

rules, flagrant disregard of a party’s discovery obligations, or a

substantial deviation from reasonable care in complying with those

obligations.” Prefer, 18 P.3d at 850. Thus, dismissal should only

be ordered in “extreme cases.”

6

Compare Lewis v. J.C. Penney Co.,

841 P.2d 385, 387 (Colo. App. 1992) (holding that a failure to pay

fees was not grounds for dismissal where the failure was not willful

or in bad faith), with Cornelius v. River Ridge Ranch Landowners

Ass’n, 202 P.3d 564, 571 (Colo. 2009) (Because “the nondisclosure

6

Junda contends that the trial court must find that the dismissal

sanction is required by clear and convincing evidence, citing

nonbinding federal cases that take this position. See Xyngular v.

Schenkel, 890 F.3d 868, 873-74 (10th Cir. 2018); Kenno v. Colo.’s

Governor’s Off. of Info. Tech., Civ. A. No. 19-cv-00165-MEH, 2021

WL 2682619, at *13 (D. Colo. June 30, 2021) (unpublished

opinion). The trial court declined to take a position on this matter

because clear and convincing evidence supported the imposition of

sanctions regardless. We do the same here.

33

in this case was so extensive that the parties and the water court

had virtually no specific information,” it merited dismissal of the

case.), and Sheid v. Hewlett Packard, 826 P.2d 396, 399 (Colo. App.

1991) (dismissal appropriate where the plaintiff refused to comply

with three orders directing the plaintiff to sign medical releases

despite the tribunal’s efforts to stay the proceedings pending

compliance).

¶ 71 The court dismissed Junda’s claims against LivWell based on

its findings that (1) Junda was personally involved in and culpable

for the willful fabrication of the evidence and (2) van de Put’s

conduct could be imputed to Junda under agency principles.

a. The Record Shows That Junda was Personally Culpable

¶ 72 Because the record supports the trial court’s findings of clear

and convincing evidence that Junda was personally involved in the

fabrication of the laptop and the Source Code files evidence, we may

not disturb these factual findings on appeal. See Mortimer, 866

P.2d at 1383-84. Further, the trial court found that Junda’s

testimony at the January 13, 2023, hearing lacked credibility,

stating that “Junda was evasive, deceptive, self-serving, and

34

dishonest.” We may not disturb the trial court’s credibility

determinations. Id.

¶ 73 Junda countered that he was not personally involved in the

laptop’s production and had no knowledge of van de Put’s actions.

But the trial court pointed to contrary evidence.

¶ 74 For example, Junda’s prior counsel testified that she

extensively communicated with Junda about the trial court’s

August 26, 2022, discovery order and stated explicitly that Junda

was “one of the most involved client[s] I’ve ever worked with.” And

the trial court pointed to prior counsel’s testimony that Junda had

provided “substantive comments” concerning compliance with the

production order, and had participated in a virtual meeting with

prior counsel and van de Put discussing the subject. The trial court

also highlighted emails clearly showing that Junda communicated

with van de Put without counsel.

¶ 75 The trial court further noted that Junda expressed no surprise

at the revelation that the produced laptop had evidently never

contained any of van de Put’s personal data and instead only

contained the Source Code. The trial court found that Junda’s lack

of surprise indicated that he knew of the fabrication.

35

¶ 76 Furthermore, while not referenced in the trial court’s order,

prior counsel testified that Junda, unprompted, had essentially

suggested that he could do exactly what occurred here (send a

different laptop with just the Source Code on it) and that a forensic

acquisition would produce the same information concerning the

Source Code files as van de Put’s personal computer.

¶ 77 And despite the centrality of the Source Code, including when

it was created, and prior counsel’s warning that failing to comply

could lead to a dismissal of his claims, Junda neither attempted to

comply with the trial court’s order nor asked van de Put to comply.

The trial court found that this was “compelling evidence that Junda

never intended to comply with [the August 26 order] and that he

participated in the scheme to submit the Dummy Computer.”

¶ 78 We may not disturb these factual findings, which all enjoy

record support. The record contains clear and convincing evidence

that Junda was personally involved in the fabrication (or aware of it

and did nothing to prevent or remedy it).

¶ 79 While dismissal is only appropriate in “extreme cases” for

“willful disobedience, a flagrant disregard of that party’s discovery

obligations, or a substantial deviation from reasonable care in

36

complying with those obligations,” this is that extreme case

warranting dismissal, because Junda willfully disobeyed the

discovery rules, his discovery obligations, and the trial court’s

order. J.C. Penney Co., 841 P.2d at 387; Prefer, 18 P.3d at 850.

¶ 80 The outright fabrication of evidence — evidence that was

crucial to the case — is an egregious form of discovery abuse. Such

behavior forces the trial court and the opposing party to question

the veracity of every claim and document the offending party

provides and greatly undermines the discovery process. See People

v. Layton, 494 P.3d 693, 726 (Colo. O.P.D.J. 2021) (noting that

“proper functioning of the adversary system depends on fair

competition, which itself is safeguarded by prohibitions against

obstructive tactics in discovery”). It was entirely reasonable for the

court to dismiss Junda’s claims after concluding this was the most

appropriate sanction available to account for Junda’s culpability

and the corresponding prejudice to LivWell. See Pinkstaff, 211 P.3d

at 702.

¶ 81 Thus, the trial court did not abuse its broad discretion by

dismissing Junda’s claims under C.R.C.P. 37. See Prefer, 18 P.3d

at 847. The sanction was within the trial court’s discretion to

37

prevent abuses of the judicial process. See Chambers v. NASCO,

Inc., 501 U.S. 32, 44-45 (1991) (A trial court has discretion to

“fashion an appropriate sanction for conduct which abuses the

judicial process,” including the “outright dismissal of a lawsuit.”).

b. van de Put’s Actions Can be Imputed to Junda

¶ 82 The trial court pointed out that there are no Colorado cases

that address whether a party is responsible for an agent’s

destruction of evidence. But it noted that a number of federal

courts agree that when an agent of a partnership destroys or fails to

preserve evidence, the resulting sanctions are imputable to the

principal. See Nucor Corp. v. Bell, 251 F.R.D. 191, 196-99 (D.S.C.

2008); N.J. Mfrs. Ins. Co. v. Hearth & Home Techs., Inc., Civ. A. No.

3:06-CV-2234, 2008 WL 2571227, at *7 (M.D. Pa. June 25, 2008)

(unpublished opinion); Goodman v. Praxair Servs., Inc., 632 F.

Supp. 2d 494, 523 n.16 (D. Md. 2009); Am. Builders & Contractors

Supply Co. v. Roofers Mart, Inc., No. 1:11-CV-19 (CEJ), 2012 WL

2992627, at *6 (E.D. Mo. July 20, 2012) (unpublished opinion);

Gemsa Enters., LLC v. Specialty Foods of Ala., Inc., No. LA CV13-

00729 JAK (RZX), 2015 WL 12746220, at *9 (C.D. Cal. Feb. 10,

2015) (unpublished opinion); Edifecs, Inc. v. Welltok, Inc., No. C18-

38

1086JLR, 2019 WL 5862771, at *4 (W.D. Wash. Nov. 8, 2019)

(unpublished opinion), aff’d, 840 F. App’x 224 (9th Cir. 2021).

¶ 83 We are persuaded by the reasoning of these federal cases and

therefore hold that a party may be sanctioned for their agent’s

spoilation, failure to preserve, or outright destruction or fabrication

of evidence. Indeed, in Michael the Colorado Supreme Court

explained that the scope of “control” in C.R.C.P. 26(a)(1) and

34(a)(1) discovery issues covers materials “which are obtainable by

the order or direction of the litigant.” 138 Colo. at 454, 334 P.2d at

1093. A party’s agents are typically under their control and a party

can order or direct the agents to produce, or protect, relevant

evidence. Thus, relevant discovery materials held by a party’s

agents may be in the party’s control and are discoverable. See id.

¶ 84 Traditional agency law principles will determine if a party is

liable for their agent’s actions — here the fabrication of evidence.

Section 7-60-106(1), C.R.S. 2023, defines a partnership as “an

association of two or more persons to carry on, as co-owners, a

business for profit.” Junda contends that he and van de Put are in

an “informal partnership,” but by their own written partnership

agreement Junda and van de Put explicitly entered into a formal

39

partnership — defining themselves as “partners” in the contract and

agreeing to share any resulting financial revenues.

¶ 85 Under section 7-60-109(1), C.R.S. 2023, “every partner is an

agent of the partnership,” and under sections 7-60-113 and

-115(1)(a), C.R.S. 2023, all partners are jointly and severally liable

for “everything chargeable to the partnership” as the result of

wrongful acts or omissions of “any partner acting in the ordinary

course of the business of the partnership or with the authority of

the other partners.” We conclude that this may include sanctions

for the spoilation or fabrication of evidence.

¶ 86 The trial court found, and we agree, that van de Put acted

within the ordinary course of the partnership’s business because he

was the sole custodian of the Source Code — the alleged product of

their partnership — and providing the Source Code files to Junda

for the litigation was part of his role as its custodian under the

delegation agreement. See Grease Monkey Int’l, Inc. v. Montoya, 904

P.2d 468, 475 (Colo. 1995) (A principal may be held liable for their

agent’s fraud if “the servant or other agent was put in a position

which enabled the agent to commit fraud, the agent acted within

his apparent authority, and the agent committed fraud.”).

40

¶ 87 Junda and van de Put were the sole members of the

partnership and had equal rights and authority over the Source

Code. Contrary to Junda’s self-serving testimony, the delegation

agreement required van de Put to provide Junda with any

documents or materials reasonably necessary for him to pursue the

litigation. As a result, van de Put’s actions are imputable to Junda.

¶ 88 Junda now points to Vail National Bank v. Finkelman, which

holds that there is an exception in agency law for imputing the

actions of an agent, or notice in that case, to a principal when the

agent acts “adversely” to the principal’s interests. See 800 P.2d

1342, 1344-45 (Colo. App. 1990). As noted, this argument was not

preserved for our review, so we cannot address it. See Gestner,

¶ 18.

¶ 89 The trial court had clear and convincing evidence before it to

find that Junda was personally culpable for the fabrication of

evidence. Regardless, Junda is responsible for van de Put’s actions

because of their partnership. So the trial court did not abuse its

discretion by dismissing Junda’s claims. See Pinkstaff, 211 P.3d at

702.

41

D. The Court Did Not Err by Excluding Evidence of the Sanctions

Order, Including the Court’s Earlier Credibility Determinations

¶ 90 Finally, on cross-appeal, LivWell argues that the trial court

erred, and caused it prejudice, by excluding from trial evidence of

Junda’s fabrication of evidence and the court’s credibility

determination (contained in the sanctions order). LivWell argues

specifically that the trial court erred when it refused to admit

testimony concerning Junda’s fabrication of evidence under CRE

608(b) as specific acts probative of Junda’s character for

truthfulness. LivWell also argues that CRE 608(b) and United

States v. Woodard, 699 F.3d 1188 (10th Cir. 2012), provided

grounds to admit the challenged evidence as it was relevant to

Junda’s credibility.

¶ 91 Junda, in turn, posits that this issue was not preserved.

Alternatively, Junda argues that the evidence is inadmissible

hearsay and overly prejudicial in violation of CRE 403. Junda also

argues that Woodard is distinguishable, that the sanctions order

did not permit its use as an “adverse inference instruction,” and

that CRE 608(b) only allows questions concerning a witness’s

credibility or character for truthfulness on cross-examination.

42

1. Standard of Review and Preservation

¶ 92 “When reviewing the trial court’s determinations of relevance,

admissibility, probative value, and prejudicial effect of evidence, ‘we

afford the evidence its maximum probative weight and its minimum

prejudice’ and review only for an abuse of discretion.” Brooktree

Vill. Homeowners Ass’n v. Brooktree Vill., LLC, 2020 COA 165, ¶ 96

(quoting Settle v. Basinger, 2013 COA 18, ¶ 64).

¶ 93 These arguments were preserved. Dill, ¶ 24; see also Itin v.

Ungar, 17 P.3d 129, 136-37 (Colo. 2000).

2. Legal Framework and Analysis

¶ 94 CRE 608(b) permits a party, “in the discretion of the court,” to

inquire on cross-examination about specific instances of a witness’s

conduct “concerning the witness’ character for truthfulness or

untruthfulness,” but it prohibits the use of extrinsic evidence for

such purposes. Some federal courts have deemed prior judicial

determinations of a witness’s credibility to be admissible under CRE

608(b) on cross-examination. See Woodard, 699 F.3d at 1192,

1195-96 (holding that a prior judge’s statement that the court “did

not believe” a state government inspector’s testimony should have

43

been admitted under Fed. R. Evid. 608 and not excluded under Fed.

R. Evid. 403).

¶ 95 The trial court’s inclination to exclude LivWell’s questions was

based on the unfair prejudice the questions would introduce. And

while LivWell contends that the trial court failed to consider

relevant applicable authority, instead relying on judicial experience

alone, the trial court’s concerns and reasoning focused on CRE 403.

See McGill v. DIA Airport Parking, LLC, 2016 COA 165, ¶¶ 30-31

(where both parties raised competing CRE 403 arguments, the trial

court implicitly found the evidence was not unduly prejudicial).

¶ 96 CRE 403 grants a trial court discretion to exclude relevant

evidence “if its probative value is substantially outweighed by the

danger of unfair prejudice [or] confusion of the issues,” among other

grounds. The trial court’s discussion at trial and its initial written

order addressed these considerations. The court wanted neither

party to gain an improper advantage by referencing the dismissed

claims and excluded evidence. It stated:

Just as Junda may not have it both ways by

having his affirmative claims dismissed and

then reasserting them as affirmative defenses,

nor may LivWell have it both ways by

restricting the scope of admissible evidence to

44

its fraud claims while introducing evidence (in

the form of the Court’s sanction order) of

Junda’s misbehavior in connection with his

affirmative claims.

¶ 97 When LivWell re-raised the issue, the court responded that the

evidence presented a great risk of prejudice. Introducing a prior

judge’s credibility determination struck the court as “extraordinarily

prejudicial,” especially since LivWell’s questioning related to claims

that had now been dismissed essentially in “a wholly different trial.”

The trial court added that the jury should “resolve [LivWell’s] claims

based upon the evidence, . . . judg[ing] for themselves whether they

think Mr. Junda is credible or not, if he testifies.” It concluded by

noting that it was “very reluctant to put [its] thumb on this

proceeding . . . by basically telling the jury what to think.”

¶ 98 Such concerns go to the heart of CRE 403, and we afford the

trial court broad discretion to determine the probative value and

prejudicial effect of proffered evidence. See Brooktree, ¶ 96. Even

assuming the evidence’s maximum possible probative value against

its minimum prejudicial effect, we share the trial court’s concerns.

Looking to LivWell’s offer of proof, a jury learning that a judge

previously determined that a party lacked credibility, intentionally

45

and repeatedly lied to the court, and falsified evidence would be, as

the trial court put it, extraordinarily prejudicial. Moreover, the

credibility determinations related to claims that had been

dismissed.

¶ 99 Thus, the trial court did not abuse its discretion by refusing to

admit such questioning, on CRE 403 grounds, under CRE 608(b).

See McGill, ¶¶ 30-31. This is true despite LivWell’s point that a

witness’s credibility is “always relevant.” See Gebert v. Sears,

Roebuck & Co., 2023 COA 107, ¶ 32 (citing Margerum v. People,

2019 CO 100, ¶ 12). A court may use its discretion to properly

exclude relevant evidence if, as here, the evidence was unduly

prejudicial when compared to its probative value. CRE 403. And to

LivWell’s contention that the court erred by not considering

Woodard and its multifactor test, while Colorado courts may look to

federal cases for guidance if they are persuasive, the court was not

bound by Woodard. See Buckley Powder Co. v. State, 70 P.3d 547,

557 (Colo. App. 2002) (“Lower federal courts have no jurisdiction

over state courts, and their decisions, even on federal law, do not

bind Colorado state courts.”). We need not adopt the reasoning of

Woodard where the court’s decision is proper under CRE 403.

46

III. Disposition

¶ 100 We affirm the judgment of the trial court and remand the case

to resolve the remaining stayed issue of attorney costs and fees.

JUDGE GROVE and JUDGE SULLIVAN concur.