State ex rel. Oregon Health Sciences University v. Haas

• Decision Date: 31 July 1997
• Docket Number: No. SC,SC
• Citation: 942 P.2d 261,325 Or. 492
• Parties: , 120 Ed. Law Rep. 805 STATE ex rel. OREGON HEALTH SCIENCES UNIVERSITY, Plaintiff-Relator, v. Harl H. HAAS, Circuit Court Judge, Multnomah County, Defendant. S42952. *
• Court: Oregon Supreme Court

Page 261

942 P.2d 261

325 Or. 492, 120 Ed. Law Rep. 805

STATE ex rel. OREGON HEALTH SCIENCES UNIVERSITY, Plaintiff-Relator, v. Harl H. HAAS, Circuit Court Judge, Multnomah County, Defendant.

No. SC S42952. ^*

Supreme Court of Oregon.

Argued and Submitted March 7, 1997.

Decided July 31, 1997.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for relator. With him on the briefs were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Thomas C. Phelan and Stephen G. Leatham of Heurlin & Potter, P.S., Vancouver, WA, argued the cause and filed the brief for defendant.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ. ^**

GRABER, Justice.

In this original mandamus proceeding, relator seeks a peremptory writ of mandamus that would protect from discovery an investigatory report prepared by its lawyer. Relator is Oregon Health Sciences University (OHSU), and defendant is a Multnomah County Circuit Court judge before whom a case involving relator is pending. At issue is whether a statement about the lawyer's report, made by the chair of OHSU's Anesthesiology Department during a faculty meeting, waived the lawyer-client privilege. For the reasons that follow, we hold that no waiver occurred. Because the report is protected by the lawyer-client privilege, we direct the issuance of a peremptory writ of mandamus requiring defendant judge to vacate his order that OHSU produce the report.

The plaintiff in the underlying action, Dr. Geary, is a licensed medical doctor who was enrolled in OHSU's residency program in anesthesiology. She alleges that OHSU and Dr. Kingston, the chair of the Anesthesiology Department, discriminated against her on the basis of her sex.

At Kingston's request, a lawyer for OHSU named Billups conducted an internal investigation to determine whether discrimination existed in the Anesthesiology Department. Billups prepared a confidential, five-page report ("Billups report"). In conducting the investigation that led to the preparation of her report, Billups spoke with numerous employees of OHSU and assured them of confidentiality. Billups gave copies of the report only to Kingston and to the dean of OHSU's medical school.

During discovery, Geary demanded a copy of the Billups report. OHSU refused to provide it on the ground that the report was protected by the lawyer-client privilege. Geary filed a motion to compel production of the report, asserting that Kingston had waived the privilege when he discussed the report at a faculty meeting of the Anesthesiology Department. After a hearing, the trial court (not defendant judge) denied the motion.

Geary also issued a subpoena to an OHSU employee, ordering him to produce a copy of the Billups report. OHSU moved to quash the subpoena, and the trial court (not defendant judge) granted the motion, without stating the grounds for the order.

During trial, the issue arose for a third time. Defendant judge was the trial judge. At trial, the perpetuation deposition of Dr. Ku, a former assistant professor in the Anesthesiology Department, was read into evidence. Ku testified as follows about comments that Kingston had made about the report at the Anesthesiology Department's faculty meeting, at which only members of the OHSU faculty were present.

"BY [GEARY'S LAWYER]:

" * * * * *

"Q. Did Dr. Kingston show you that report?

"A. Yes, he did show us the thick report, ¹ but he didn't show us the contents.

"Q. Did he discuss with you any of the findings of the report?

"A. He said the findings were that our department has a problem with sexual discrimination or racial discrimination or all that. It was very long, you know. That he said that we do have a problem, the legal department has concluded that we do have a problem. And there are a couple--advice that came out of it, came out from the legal department, was that if we do get sued--

"[OHSU'S LAWYER]: Again, I am going to object as to advice from the legal department. That's attorney/client privilege.

"A. The legal department--

"Q. I'm sorry, counsel has declared or asked that it's a privileged communication. What I want to find out is, as a result of what you just testified to--these are all legal rules, Doctor.

"I hate to interrupt you, but after Dr. Kingston talked about the sex and race discrimination, did he have a program? Was something put into place?

"A. Yes. I mean, he said that there's a couple, three things that we need to do.

"First thing is, all the faculty need to know that OHSU will not cover the legal bill in case we get sued.

"The second thing was that we had to attend a sensitivity videotape training, that we have to watch the videotape to know the definition of the problem.

"Q. And do you recall what the third thing was?

"A. No, I don't. I mean, it was something kind of really vague, so I don't remember that."

During the reading of Ku's deposition at trial, defendant judge ruled that Kingston's statement at the faculty meeting had waived the lawyer-client privilege that had protected the confidentiality of the report. Defendant judge ordered production of the Billups report. ²

Shortly thereafter, at the parties' request, defendant judge declared a mistrial. He then held an evidentiary hearing to determine whether OHSU had waived the lawyer-client privilege as to the Billups report. At the hearing, Kingston testified that he had announced at a faculty meeting and at an executive committee meeting that a report had been prepared and that, based on the report, he believed that training on sexual harassment and gender discrimination issues was in order. He also denied telling anyone the contents of the report.

After the hearing, defendant judge issued a written order requiring production of the Billups report under a protective order. ³

OHSU petitioned for an alternative writ of mandamus, and this court issued an alternative writ. For the reasons that follow, we now direct the issuance of a peremptory writ.

Defendant judge argues, as a preliminary matter, that mandamus is not an appropriate remedy, because OHSU can appeal defendant judge's discovery ruling and thereby has a plain, speedy, and adequate remedy at law. See State ex rel LeVasseur v. Merten, 297 Or. 577, 579-80, 686 P.2d 366 (1984) (ordinarily mandamus will not lie if there is a plain, speedy, and adequate remedy in the course of the law). We disagree. Once a privileged communication has been disclosed, the harm cannot be undone. Mandamus is an appropriate remedy when a discovery order erroneously requires disclosure of a privileged communication. In 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), this court explained that mandamus is appropriate in such cases, because relators otherwise would "suffer[ ] an irretrievable loss of information and tactical advantage which could not be restored to them on direct appeal." We exercise our discretion to proceed in mandamus.

The parties do not dispute that the Billups report was confidential and protected by the lawyer-client privilege when Billups provided copies of it to the dean of the medical school and to Kingston as chair of the Anesthesiology Department. Rather, the issue before us is whether Kingston's comments at the faculty meeting waived the lawyer-client privilege as to that report.

Whether Kingston waived the lawyer-client privilege, an inquiry under Rule 511 of the Oregon Evidence Code (OEC), was a preliminary question of fact to be determined by the trial court under OEC 104(1). ⁴ See Goldsborough v. Eagle Crest Partners, Ltd., 314 Or. 336, 342, 838 P.2d 1069 (1992) (whether waiver of the lawyer-client privilege occurred is a preliminary question of fact for the trial court under OEC 104). In this case, defendant judge did not make findings of fact but drew conclusions of law. In deciding preliminary questions of fact, the court is to use a preponderance-of-the-evidence standard. Ibid. On review for errors of law, this court views the record in a manner consistent with the trial court's ruling under OEC 104(1) and assumes that the trial court found facts consistent with its final conclusion. Id. at 342 & n. 9, 838 P.2d 1069. Because the trial court ordered disclosure of the report, we look at the record in the light most favorable to the order of disclosure. See State ex rel Ware v. Hieber, 267 Or. 124, 127-28, 515 P.2d 721 (1973) (in a mandamus proceeding, when the facts are in dispute, this court accepts reasonable factual inferences that the trial court could have made). In practical terms, that means that we will use Ku's version of events, rather than that of Kingston and others who testified differently than Ku.

OEC 511 explains when the lawyer-client privilege is waived. It provides in part:

"A person upon whom [OEC 503 to 514] confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This section does not apply if the disclosure is itself a privileged communication. Voluntary disclosure does not occur with the mere commencement of litigation or, in the case of a deposition taken for the purpose of perpetuating testimony, until the offering of the deposition as evidence."

Under that rule, when a holder of the lawyer-client privilege voluntarily has disclosed material covered by the privilege, two considerations arise in determining whether a waiver has occurred: (1) whether the disclosure was "itself a privileged communication" and, if not, (2) whether the disclosure was of a "significant part of the matter or communication."

Beginning with the first consideration, we must determine whether Kingston's statement about the Billups report during the faculty meeting was ...