Port of Portland v. Oregon Center for Environmental Health
238 Or. App. 404
| Or. Ct. App. | 2010Background
- In 2000, EPA listed part of the lower Willamette River under CERCLA; EPA identified Port and others as potentially responsible parties (PRPs).
- Port and other PRPs formed the Lower Willamette Group (LWG) and negotiated a joint agreement through counsel.
- The agreement implements a coordinated investigation, anticipates litigation, and sets cost-sharing for investigation and litigation.
- The LWG shared the agreement with other PRPs under confidentiality; some recipients did not join or sign, but confidentiality was sought to be preserved.
- Defendants sought disclosure via public records requests; Port withheld the agreement claiming exemptions including attorney-client privilege/work product.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the agreement a confidential attorney-client communication? | Port: yes, created by attorneys for clients, memorializes confidential communications. | Harris: no, not confidential if shared with non-signatories or third parties. | Yes; the agreement is a confidential communication. |
| Does the agreement facilitate the rendition of legal services? | Port: allocation and structure aid legal services in CERCLA investigation and anticipated litigation. | Harris: cost allocation is business information, not legal services. | Yes; it facilitates the rendition of professional legal services. |
| Does the 'common interest' requirement apply to the Port and other PRPs? | Port: PRPs share a common interest in CERCLA investigation and defense. | Harris: no common interest or not sufficiently identical; possible waiver by sharing with non-signatories. | Yes; there was a common interest justifying the privilege. |
| Is disclosure to non-signatories a waiver of the privilege? | Port: sharing did not waive because confidentiality was maintained and others bound by confidentiality. | Harris: sharing with non-signatories undermines privilege. | No waiver; confidentiality maintained and privilege preserved. |
Key Cases Cited
- OHSU v. Haas, 325 Or. 492 (1997) (recognizes attorney-client privilege and public records balance)
- PGE v. Bureau of Labor and Industries, 317 Or. 606 (1993) (defines common usage and common interest notion in statutory context)
- State ex rel OHSU v. Haas, 325 Or. 492 (1997) (privilege aims to promote law and administration of justice)
- Jones v. General Motors Corp., 325 Or. 404 (1997) (how record is viewed in public records context)
- Kluge v. Oregon State Bar, 172 Or. App. 452 (2001) (public records exemptions and burden on asserting party)
- Friends of Yamhill County v. Yamhill County, 229 Or. App. 188 (2009) (textual canons and interpretive approach to public records exemptions)