Longo v. Premo, 326 P.3d 1152

Background

Relator seeks a writ of mandamus to compel the post-conviction court to issue a protective order shielding lawyer-client privileged materials from disclosure to third parties.
Petitioner was convicted of seven counts of aggravated murder and sentenced to death; direct review affirmed; subsequently pursued post-conviction relief alleging ineffective assistance of counsel.
State sought production of documents from appellate counsel’s file; petitioner sought protection to prevent disclosure of privileged communications beyond the post-conviction proceedings.
The post-conviction court held that the breach-of-duty exception (OEC 503(4)(c)) defeats the privilege for that purpose, allowing disclosure to the state and to third parties, while noting privilege would reattach after proceedings.
The court denied the protective order and suspended it pending mandamus; petitioner sought alternative mandamus relief, arguing the court failed to protect privileged communications not within the breach-of-duty exception.
The court addressed whether mandamus is available and clarified the scope and application of OEC 503(2) and OEC 503(4)(c) in the protective-order context.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is mandamus an appropriate remedy here?	Petitioner argues mandamus is warranted to prevent irreparable disclosure of privileged material.	State contends mandamus is inappropriate where ordinary remedies exist and discretion governs protective orders.	Yes; mandamus is appropriate to protect privileged communications.
Scope of the breach-of-duty exception (OEC 503(4)(c))	The exception should be read broadly to permit disclosures necessary to defend breach-of-duty claims.	The exception is narrow and limited to proceedings involving breach-of-duty defenses.	Narrow; the exception applies only during pendency of the breach-of-duty defense and for disclosures reasonably necessary for that defense.
Did the post-conviction court err by denying a protective order for communications not within the breach-of-duty exception?	Without protection, privileged communications could be disclosed to third parties not connected to defense.	Disclosures within the breach-of-duty exception are permissible; broader protections are unnecessary.	Yes; the court erred by denying protection for disclosures not reasonably necessary to the breach-of-duty defense.
Whether and how a protective order should be fashioned to balance interests	A formal protective order is needed to restrict unrelated disclosures and preserve privilege.	Protective order should be tailored; disclosures reasonably necessary for defense may be allowed.	The post-conviction court must determine appropriate terms; protective measures may include selective disclosures to law enforcement as reasonably necessary.

Key Cases Cited

Haas v. Oregon State Bar, 325 Or 492 (1997) (articulates the three-factor test for OEC 503 privilege application)
Frease v. Glazer, 330 Or 364 (2000) (mandamus to protect privilege in discovery context)
Murchison, 289 Or 265 (1980) (mandamus appropriate when disclosure causes irreparable harm)
Richardson, 276 Or 325 (1976) (trial court had no discretion to deny requisite discovery related to mental health defense)
State ex rel. N. Pacific Lbr. v. Unis, 282 Or 457 (1978) (mandamus when discovery compelled disclosure of privilege communications)