Crimson Trace Corp. v. Davis Wright Tremaine LLP
355 Or. 476
| Or. | 2014Background
- Crimson Trace hired DWT lawyers (Birdwell, Boundy) for patent prosecution and later litigation against LaserMax; LaserMax counterclaimed alleging misconduct re: the ‘235’ patent and named Birdwell.
- Birdwell and Boundy consulted DWT’s Quality Assurance Committee (QAC), a designated in‑house counsel group, about potential conflicts and strategy; communications were treated as confidential by the firm.
- Litigation produced discovery and sanctions issues; Crimson stopped paying and later sued DWT for malpractice and breach of contract.
- Crimson sought production of internal DWT communications about conflicts, dealings with the settlement, and duties owed; DWT asserted OEC 503 attorney‑client privilege and some work‑product protection.
- Trial court reviewed documents in camera, found most communications met OEC 503’s privilege elements but applied a judicially recognized “fiduciary exception” and ordered production; DWT sought mandamus review.
Issues
| Issue | Plaintiff's Argument (Crimson) | Defendant's Argument (DWT) | Held |
|---|---|---|---|
| Whether communications between firm lawyers and firm in‑house counsel fall within OEC 503 privilege | No privilege because firm lawyers couldn’t reasonably expect QAC to represent them vis‑à‑vis the current client; privilege depends on reasonable expectation of an attorney‑client relationship | OEC 503 governs and these communications meet its defined elements (client, lawyer, confidential, for legal service) | Communications (except three documents) met OEC 503 elements and are ordinarily privileged |
| Whether a “fiduciary exception” vitiates privilege for intra‑firm communications when the firm’s interests conflict with a current client | Courts should hear additional exceptions; fiduciary duties require disclosure of firm’s internal advice to protect clients | OEC 503 enumerates exceptions; courts cannot judicially create an extra exception not adopted by the legislature | Oregon does not recognize a fiduciary exception to OEC 503; the statute’s enumerated exceptions are exhaustive |
| Whether state of licensing/communications in another jurisdiction (Washington) defeats confidentiality | Washington law denying such privilege shows there was no reasonable expectation of confidentiality | Oregon applies its own evidence code and rules; Washington law irrelevant | Oregon law governs; trial court’s finding that communications were intended to be confidential stands |
| Appropriate remedy for erroneous disclosure order | — | Mandamus is proper because disclosure of privileged material is irreparable; trial court erred | Peremptory writ issued ordering trial court to vacate compelled production of privileged communications (except the 3 non‑privileged docs) |
Key Cases Cited
- State ex rel OHSU v. Haas, 325 Or. 492 (mandamus available to prevent disclosure of privileged communications) (discusses irreparability of privileged disclosure)
- State v. Serrano, 346 Or. 311 (statutory interpretation framework for OEC provisions)
- State v. Jancsek, 302 Or. 270 (elements for attorney‑client privilege under OEC 503)
- In re Weidner, 310 Or. 757 (attorney‑client relationship analysis based on reasonable expectation in disciplinary context)
- State v. Miller, 300 Or. 203 (distinguishing ethical duties from evidentiary privileges)
- Wells Fargo Bank v. Superior Court, 22 Cal.4th 201 (rejecting judicial creation of fiduciary exception where evidence code enumerates exceptions)
- Riggs Nat. Bank v. Zimmer, 355 A.2d 709 (Del. Ch. 1976) (early American discussion of trustee/corporate counsel privilege issues)