Roberts v. Legacy Meridian Park Hospital, Inc.
97 F. Supp. 3d 1245
D. Or.2015Background
- Dr. Warren Roberts (plaintiff) sued multiple defendants for tort, contract, discrimination, and antitrust claims; his prior counsel Mark McDougal allegedly negotiated settlements in October–November 2014.
- Defendants say McDougal offered to dismiss claims against several defendants for mutual releases and waiver of fees; most defendants accepted per defense declarations.
- McDougal moved to withdraw (citing irreconcilable differences and settlement negotiations); the court granted withdrawal and stayed discovery.
- After new counsel appeared, defendants moved to enforce the alleged settlement; Roberts filed a declaration denying he authorized McDougal to settle.
- Defendants then moved for a partial waiver of the attorney-client privilege to obtain McDougal’s testimony and communications about his settlement authority.
- The court held that Roberts’s denial places McDougal’s authority “at issue,” so Roberts must choose whether to stand on that statement; if he does, a limited waiver will be imposed allowing discovery from McDougal under specified limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of waiver motion | Roberts: no final settlement reached, so waiver inquiry is moot | Defs: settlement may have been reached with most defendants; waiver question remains | Not moot as to most defendants; factual dispute persists and waiver question remains live |
| Whether communications were confidential | Roberts: communications with McDougal were confidential; no instruction to disclose | Defs: communications intended to be relayed to defense (settlement offer) so not privileged | No evidence McDougal was authorized to transmit; presumption of confidentiality stands |
| Express waiver by voluntary disclosure | Roberts: his declaration did not reveal privileged content, only denied authorization | Defs: Roberts’ disclosure of the substance (that he didn’t authorize settlement) constitutes waiver | Court: no express waiver — Roberts disclosed only the fact of communications/denial, not privileged content |
| Implied ("at-issue") waiver | Roberts: may assert privilege to block discovery | Defs: Roberts put McDougal’s authority at issue by denying authorization, so fairness requires disclosure of communications on that topic | Court: implied waiver applies if Roberts persists in his denial; he must elect within 7 days. If he continues, defendants may depose McDougal or seek an evidentiary hearing limited to settlement-authority communications |
Key Cases Cited
- Wagner v. Rainier Mfg. Co., 230 Or. 531, 371 P.2d 74 (1962) (acceptance must be positive, unconditional, and unambiguous)
- Lang v. Oregon Idaho Annual Conf. of United Methodist Church, 173 Or. App. 389, 21 P.3d 1116 (2001) (a response that changes terms is a counteroffer, not acceptance)
- C.R. Shaw Wholesale Co. v. Hackbarth, 102 Or. 80, 201 P. 1066 (1921) (counteroffer construed as rejection of original offer)
- Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (explains implied waiver; court can condition litigation on production of privileged materials)
- Amlani v. United States, 169 F.3d 1189 (9th Cir. 1999) (courts evaluate whether allowing privilege would deny opponent access to information vital to defense)
- Chevron Corp. v. Pennzoil Co., 974 F.2d 1156 (9th Cir. 1992) (discusses scope of implied waiver and fairness considerations)