Gollersrud v. LPMC, LLC

• Docket Number: CC 16CV36031 (SC S069796)
• Decision Date: 21 December 2023
• Citation: Gollersrud v. LPMC, LLC, 371 Or. 739, 541 P.3d 864 (Or. 2023)
• Parties: Inez GOLLERSRUD, an individual, and David Gollersrud, an individual, Plaintiffs-Relators, v. LPMC, LLC, dba Landmark Professional Mortgage, an Oregon limited liability company, Defendant-Adverse Party, and Tyler Westby, an individual et al., Defendants.
• Court: Oregon Supreme Court

371 Or. 739

541 P.3d 864

Inez GOLLERSRUD, an individual, and David Gollersrud, an individual, Plaintiffs-Relators,

v. LPMC, LLC, dba Landmark Professional Mortgage, an Oregon limited liability company, Defendant-Adverse Party,andTyler Westby, an individual et al., Defendants.

CC 16CV36031 (SC S069796)

Supreme Court of Oregon.

Argued and submitted May 16, 2023.

December 21, 2023

C. Robert Steringer, Harrang Long P.C., Portland, argued the cause for plaintiffs-relators. Julian Marrs filed the briefs. Also on the briefs were C. Robert Steringer and Adina Matasaru.

William Gaar, Buckley Law P.C., Lake Oswego, argued the cause and filed the brief for defendant-adverse party. Also on the brief was Jillian Pollock.

Lisa T. Hunt, Law Office of Lisa T. Hunt, LLC, Lake Oswego, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong, James, and Masih, Justices.^**

JAMES, J.

This mandamus proceeding requires us to decide two issues: (1) whether email messages between a client and their attorney, sent from, and stored on, the client's employer's email system are "confidential communications" as defined in OEC 503(1)(b) ; and (2) if they are, whether an employee's act of leaving employment and, in turn, leaving those email messages on the employer's email system constitutes a disclosure of communications and a waiver of the attorney-client privilege under OEC 511. As to the first issue regarding confidentiality under OEC 503(1)(b), based on the text, context, and legislative history, we conclude that communications between a client and an attorney, made for the purpose of facilitating the rendition of professional legal services to the client, are presumptively confidential. The client's mere use of an employer's email system, without more, does not overcome that presumption of confidentiality. As to the second issue concerning waiver of privilege under OEC 511, we hold that, at least on this record, leaving the emails on the employers’ systems did not establish actual disclosure of communications - a necessary predicate to an OEC 511 waiver analysis. Although we do not foreclose the possibility that a party could make an evidentiary record demonstrating a lack of privilege under OEC 503(1)(b), or that such privilege had been waived through actual disclosure under OEC 511, for email communications sent from and stored on an employer's server, the record here is insufficient. Accordingly, a peremptory writ shall issue.

I. BACKGROUND

We take the facts from the record in the underlying trial court proceedings. Barrett v. Union Pacific Railroad Co. , 361 Or. 115, 117 n 1, 390 P.3d 1031 (2017). Relators David Gollersrud and his mother, Inez Gollersrud, alleged fraud, among other claims, in a real estate investment relationship between plaintiffs and several defendants, including LPMC, LLC (LPMC). Because one of the other defendants was involved in an ongoing bankruptcy proceeding, the parties agreed to informally abate the case pending the outcome of that proceeding. During that abatement period, they agreed to mediate and conduct informal, limited discovery.

LPMC issued subpoenas to three of Mr. Gollersrud's former employers. In those subpoenas, LPMC sought to compel production of all communications, from 2008 to the present, between Mr. Gollersrud's work email addresses and nine other email addresses, among them that of Ms. Gollersrud. Relators sought to quash LPMC's subpoenas on the ground that some of the email messages between Mr. Gollersrud and Ms. Gollersrud included communications with their attorneys and were therefore protected under the attorney-client privilege, codified at OEC 503.¹ They alternatively proposed that the scope of the subpoenas be limited or that the trial court order that their attorneys be permitted to screen privileged documents produced in response to the subpoenas.

In response, LPMC argued that the email messages were not covered by the attorney-client privilege because (1) Mr. Gollersrud had no reasonable expectation of privacy in email communications transmitted using his employers’ email systems; and (2) even if the email messages were privileged when transmitted, that privilege had been waived when Mr. Gollersrud failed to delete them from his employers’ email systems before severing his employment relationships.

After taking the matter under advisement, the trial court denied relators’ motion to quash the subpoenas. In a letter opinion, the trial court concluded that the email messages "between Mr. Gollersrud and [Ms.] Gollersrud to be recovered from the former employers’ servers are not privileged." The trial court concluded by requesting that LPMC prepare a proposed order.

Relators objected to LPMC's proposed order and requested that the trial court hold an evidentiary hearing on the attorney-client privilege issue or, in the alternative, clarify its findings. In support of that objection, Mr. Gollersrud submitted a supplemental declaration that stated that (1) it was his "understanding that none of [his] three prior employers monitored the use of [his] computer or e-mail while [he] was employed with them"; (2) he had "received no notices from any of [his] three prior employers that they were monitoring [his] email use while [he] was employed with them"; (3) "[n]o third parties had a right of access to the computers or e-mail accounts [he] used while [he] was employed with [his] three prior employers"; and (4) his "computers and email accounts with [his] three prior employers were protected by passwords known only to [him]." Mr. Gollersrud's supplemental declaration is the only evidence in the record regarding his former employers’ email policies.

Shortly after the objection was filed, the trial court action was stayed due to the bankruptcy of another defendant. When the litigation resumed, the trial court issued a letter opinion advising that it would sign LPMC's proposed order and denying relators’ request for clarification of its prior ruling. It is not clear from the record whether the trial court considered the material in Mr. Gollersrud's supplemental declaration.

Relators then petitioned this court for a writ of mandamus. This court issued an alternative writ of mandamus directing the trial court to either vacate its order or show cause why it should not do so. The trial court declined to vacate its order. As a result, the parties proceeded to argument in this court.

II. ANALYSIS

A. Jurisdiction

Because this case comes to us on mandamus, we first consider whether this court has jurisdiction to issue the writ. The statutory requirements for mandamus jurisdiction are set out in ORS 34.110. First, the writ may be issued only to enforce "a known, clear legal right." State v. Moore , 361 Or. 205, 212, 390 P.3d 1010 (2017). Second, the writ may be issued only if there is no "plain, speedy and adequate remedy in the ordinary course of the law." ORS 34.110. In most cases, direct appeal is a plain, speedy, and adequate remedy. See State ex rel Automotive Emporium v. Murchison , 289 Or. 265, 268-69, 611 P.2d 1169, reh'g den , 289 Or. 673, 616 P.2d 496 (1980). However, when a discovery order erroneously requires disclosure of privileged communications, we have held that direct appeal is inadequate, because, once a privileged communication has been disclosed, the harm cannot be undone. Crimson Trace Corp. v. Davis Wright Tremaine LLP , 355 Or. 476, 485, 326 P.3d 1181 (2014) ; State ex rel OHSU v. Haas , 325 Or. 492, 497, 942 P.2d 261 (1997).

We conclude that the issues presented by this case fall squarely within our mandamus jurisdiction. A peremptory writ of mandamus, if issued, would be used to enforce a legal right: namely, relators’ right not to produce privileged communications. If the trial court's ruling requiring the disclosure of Mr. Gollersrud's email messages was erroneous because it did not correctly interpret OEC 503 and 511, then an appeal would not be adequate to remedy the harm caused by the disclosure of those protected communications. Mandamus being an appropriate vehicle to address the issue here, we turn to the merits.

B. Overview

The attorney-client privilege is one of the oldest and most broadly recognized evidentiary privileges. The privilege, codified at OEC 503,² seeks to " ‘encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.’ " Haas , 325 Or. at 500, 942 P.2d 261 (quoting Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ). Although the attorney-client privilege is expansive, it is not absolute; OEC 503 establishes threshold requirements for the privilege, and OEC 511 allows for waiver of any evidentiary privilege, including the attorney-client privilege. Longo v. Premo , 355 Or. 525, 533, 326 P.3d 1152 (2014).

OEC 503(2) provides, in part:

"A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client[.]"

(Emphasis added.) That general rule is subject to numerous caveats, but, overall, assertions of the attorney-client privilege in Oregon require (1) a communication between classes of persons described in OEC 503(2)(a) to (e); (2) that the communication be made for the purpose of facilitating the rendition of professional legal services to the client; and (3) that the communication be "confidential" within the meaning of OEC 503(1)(b), which defines a "confidential communication" to mean

"a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication."

The parties agree that resolution of this case hinges on...