Inez GOLLERSRUD, an individual, and David Gollersrud, an individual, Plaintiffs-Relators, v. LPMC, LLC, dba Landmark Professional Mortgage, an Oregon limited liability company, Defendant-Adverse Party, and Tyler WESTBY, an individual et al., Defendants.
CC 16CV36031; SC S069796
In the Supreme Court of the State of Oregon
December 21, 2023
371 Or 739 (2023)
James, J.
Original proceeding in mandamus.* Argued and submitted May 16,
C. Robert Steringer, Harrang Long P.C., Portland, argued the cause for plaintiffs-relators. Julian Marrs filed the briefs. Also on the briefs were C. Robert Steringer and Adina Matasaru.
William Gaar, Buckley Law P.C., Lake Oswego, argued the cause and filed the brief for defendant-adverse party. Also on the brief was Jillian Pollock.
Lisa T. Hunt, Law Office of Lisa T. Hunt, LLC, Lake Oswego, filed the brief for amicus curiae Oregon Trial Lawyers Association.
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* On petition for alternative writ of mandamus from an order of Marion County Circuit Court, Audrey J. Broyles, Judge.
Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong, James, and Masih, Justices.**
JAMES, J.
A peremptory writ of mandamus shall issue.
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** Baldwin, Senior Judge, Justice pro tempore, participated in oral argument, but did not participate in the consideration or decision of this case.
JAMES, J.
This mandamus proceeding requires us to decide two issues: (1) whether email messages between a client and their attorney, sent from, and stored on, the client‘s employer‘s email system are “confidential communications” as defined in
I. BACKGROUND
We take the facts from the record in the underlying trial court proceedings. Barrett v. Union Pacific Railroad Co., 361 Or 115, 117 n 1, 390 P3d 1031 (2017). Relators David Gollersrud and his mother, Inez Gollersrud, alleged fraud, among other claims, in a real estate investment relationship between plaintiffs and several defendants, including
LPMC issued subpoenas to three of Mr. Gollersrud‘s former employers. In those subpoenas, LPMC sought to compel production of all communications, from 2008 to the present, between Mr. Gollersrud‘s work email addresses and nine other email addresses, among them that of Ms. Gollersrud. Relators sought to quash LPMC‘s subpoenas on the ground that some of the email messages between Mr. Gollersrud and Ms. Gollersrud included communications with their attorneys and were therefore protected under the attorney-client privilege, codified at
In response, LPMC argued that the email messages were not covered by the attorney-client privilege because (1) Mr. Gollersrud had no reasonable expectation of privacy in email communications transmitted using his employers’ email systems; and (2) even if the email messages were privileged when transmitted, that privilege had been waived when Mr. Gollersrud failed to delete them from his employers’ email systems before severing his employment relationships.
After taking the matter under advisement, the trial court denied relators’ motion to quash the subpoenas. In a letter opinion, the trial court concluded that the email messages “between Mr. Gollersrud and [Ms.] Gollersrud to be recovered from the former employers’ servers are not privileged.” The trial court concluded by requesting that LPMC prepare a proposed order.
Relators objected to LPMC‘s proposed order and requested that the trial court hold an evidentiary hearing on the attorney-client privilege issue or, in the alternative, clarify its findings. In support of that objection, Mr. Gollersrud submitted a supplemental declaration that stated that (1) it was his “understanding that none of [his] three prior employers monitored the use of [his] computer or e-mail while [he] was employed with them“; (2) he had “received no notices
from any of [his] three prior employers that they were monitoring [his] email use while [he] was employed with them“; (3) “[n]o third parties had a right of access to the computers or e-mail accounts [he] used while [he] was employed with [his] three prior employers“; and (4) his “computers and email accounts with [his] three prior employers were protected by passwords known only to [him].” Mr. Gollersrud‘s supplemental declaration is the only evidence in the record regarding his former employers’ email policies.
Shortly after the objection was filed, the trial court action was stayed due to the bankruptcy of another defendant. When the litigation resumed, the trial court issued a letter opinion advising that it would sign LPMC‘s proposed order and denying relators’ request for clarification of its prior ruling. It is not clear from the record whether the trial court considered the material in Mr. Gollersrud‘s supplemental declaration.
Relators then petitioned this court for a writ of mandamus. This court issued an alternative writ of mandamus directing the trial court to either vacate its order or show cause why it should not do so. The trial court declined to vacate its order. As a result, the parties proceeded to argument in this court.
II. ANALYSIS
A. Jurisdiction
Because this case comes to us on mandamus, we first consider whether this court has jurisdiction to issue the writ. The statutory requirements for mandamus jurisdiction are set out in
because, once a privileged communication has been disclosed, the harm cannot be undone. Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 485, 326 P3d 1181 (2014); State ex rel OHSU v. Haas, 325 Or 492, 497, 942 P2d 261 (1997).
We conclude that the issues presented by this case fall squarely within our mandamus jurisdiction. A peremptory writ of mandamus, if issued, would be used to enforce a legal right: namely, relators’ right not to produce privileged communications. If the trial court‘s ruling requiring the disclosure of Mr. Gollersrud‘s email messages was erroneous because it did not correctly interpret
B. Overview
The attorney-client privilege is one of the oldest and most broadly recognized evidentiary privileges. The privilege, codified at
“A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client[.]”
(Emphasis added.) That general rule is subject to numerous caveats, but, overall, assertions of the attorney-client privilege in Oregon require (1) a communication between classes of persons described in
“a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.”
The parties agree that resolution of this case hinges on the meaning of confidentiality, and in particular, the interpretation of “not intended to be disclosed” as used in
As such, the questions presented in this case are ones of statutory interpretation. The rules of evidence are adopted by the legislature and our construction of them follows our traditional method of statutory interpretation focusing on text, context, and legislative history. Crimson Trace Corp., 355 Or at 485; State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). “The principal source of legislative history for the 1981 Oregon Evidence Code is the 1981 Conference Committee Commentary.” State v. Serrano, 346 Or 311, 324, 210 P3d 892 (2009).
We begin with the predicate issue of which party bears the burden of proving that communications are—or are not—confidential. Generally, the burden is on the party asserting a privilege to establish that it applies. See Groff v. S.I.A.C., 246 Or 557, 565, 426 P2d 738 (1967) (regarding assertion of privilege as to disclosure and use of public assistance records under
“I cannot recall all of the email communications I have sent to, received from or which include my mother over the course of almost ten years. However, I expect many of these communications would involve:
“* * * * *
“Communications including privileged communications with attorneys in this case, related cases, and other unrelated family and business legal matters.”
After the court ruled, relators objected to its ruling and submitted Mr. Gollersrud‘s second declaration, which addressed his lack of knowledge of workplace email monitoring policies. No party here disputes that relators’ initial motion to quash was sufficient to meet the first and second prongs of invoking the attorney-client privilege—i.e., the existence of communications between a class of persons found in
The core of
We see no reason why the same presumption should not apply to
We thus conclude that, in asserting the attorney-client privilege, the burden is on the individual asserting the privilege to establish (1) communications between a class of persons found in
was sufficient to establish points one and two. As such, that declaration was sufficient to entitle the Gollersruds to a presumption of confidentiality in any lawyer-client communications sent from, or stored upon, Mr. Gollersrud‘s former employers’ servers. The burden to overcome that presumption thus shifted to LPMC.
D. Did LPMC defeat the presumption of confidentiality?
It is undisputed that the communications between Mr. Gollersrud and his attorney were sent on Mr. Gollersrud‘s employers’ email systems. LPMC argues:
“When an employee chooses to use a third-party employer owned work computer and email systems to transmit and receive personal emails with the employee‘s personal attorney, the attorney-client privilege does not attach to the email communications. There is no legal prohibition that bars a private employer from searching, inspecting, or viewing emails transmitted or stored on the private employer‘s email system. There is accordingly a risk that the employer will access an employee‘s personal emails that were transmitted through and saved to the employer‘s email system. By choosing to use the employer‘s email system to send, receive, or save personal emails, the employee assumes the risk of disclosure of the personal emails to the employer.”
In effect, LPMC argues that any time an email is sent from a system where third parties could potentially discover the contents, that establishes, per se, that such communications are not confidential. We decline to adopt LPMC‘s per se approach for a number of reasons.
First, the commentary to
Additionally, we have held that confidentiality is not defeated merely from the mere awareness of a risk of disclosure. For example, in Chaimov v. Dept. of Admin. Services, 370 Or 382, 401, 520 P3d 406 (2022), we rejected
the plaintiff‘s argument that “the completed request forms at issue * * * were not confidential at any point in time, because [the department] had warned state agencies that the forms could be subject to disclosure at some point in the future.” In doing so, we explained that “[c]onfidentiality as defined in
Requiring something more than just the possibility that a communication might be disclosed to overcome the presumption of confidentiality is in keeping with the animating purpose of the privilege. The legislature enacted the current version of the attorney-client privilege in 1981. See Or Laws 1981, ch 892, § 32.
LPMC‘s proposed per se rule conflicts with the pragmatism of
realities of modern life, and it does not reflect how many Oregonians live and work. For many, a clear divide between work and nonwork does not exist. See Leora Eisenstadt, Data Analytics and the Erosion of the Work/Nonwork Divide, 56 Am Bus LJ 445, 449 (2019). The United States Bureau of Labor Statistics shows that roughly a third of the workforce—34 percent in 2022, worked remotely at least part of the week. U.S. Bureau of Labor Statistics, American Time Use Survey—2022 Results (2023), available at https://www.bls.gov/news.release/pdf/atus.pdf (accessed Dec 14, 2023). The common practice of telework has brought employer computer systems and employer paid network access into the home, with an accompanying blurring of the lines between private and work communication, and the network infrastructure supporting each. See Lawrence E. Rothstein, Privacy or Dignity?: Electronic Monitoring in the Workplace, 19 NY L Sch J Int‘l & Compar L 379, 382 (2000). In short, for many Oregonians, personal and work business is increasingly conducted from devices and accounts that are not clearly delineated.
LPMC argues that any practical concerns are easily solved by requiring a strict adherence to a divide between work and personal email:
“The employee can eliminate such risk and preserve the attorney-client privilege by taking reasonable precautions to protect communication from disclosure, such as using the employee‘s personal email account on the employee‘s personal computer, laptop, or phone, or communicating with the employee‘s attorney by phone.”
LPMC‘s argument, which, as noted, is grounded in a risk of possible disclosure, presupposes that personal email contains no such risk. That assumption does not bear weight. “Though an employer may have a comparatively broad right to monitor the email messages flowing through its systems, they are not the only party with a qualified right to do so.” Anthony Biondo, Confidentiality and Attorney Client Privilege in the Internet Age: How to Handle Employer Monitoring of Employee Email, 90 St John‘s L Rev 441, 443 (2016). Most personal email is hosted by “free” email service providers (Gmail, Yahoo! Mail, AOL Mail, etc.) who
themselves reserve the right to monitor the contents. As an example, Google‘s current terms of service provide that when a user sends or receives “content,” including emails, they provide Google with a “worldwide,” “non-exclusive,” and “royalty-free” license to “host, reproduce, distribute, communicate, and use“; “publish, publicly perform, or publicly display“; or “modify and create derivative works based on” that content. Google Terms of Service, http://policies.google.com/terms?hl=en-US (accessed Dec 14, 2023). That reality of email communications, including personal hosted email, is another reason that a mere risk of disclosure cannot suffice, on its own, to overcome the presumption of confidentiality.
“(1) does the [employer] maintain a policy banning personal or other objectionable use, (2) does the [employer] monitor the use of the employee‘s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, or the use and monitoring policies?”
In Asia Global, the court highlighted the similarities between the attorney-client privilege and the right to privacy, and it derived those factors from its right to privacy cases. Id. at 256-58. In that case, a bankruptcy trustee moved to compel production of email messages between employees and their outside counsel that were exchanged via the employer‘s email system. Id. at 252-54. The trustee had argued that, because the employees communicated with outside counsel using the employer‘s email system, the email messages were not protected by attorney-client privilege. Id. The court indicated that it presumed the email messages in question to be privileged and that the employees “subjectively intended that they be confidential.” Id. at 258-59.
Ultimately, after considering the four factors, the court concluded that the email messages were indeed privileged, despite both the employer‘s ability to access the email messages and the presence of an employer policy against personal email use, because the employer‘s policy against such use was not communicated clearly to the employees. Id. at 259-61.4
We also observe that the cases that LPMC cites in support of its argument that this court should adopted a per se rule do not, themselves, announce a per se rule; they rather rely on the existence of company policies that would make an employee‘s belief that the email messages were confidential unreasonable. See, e.g., In re Reserve Fund Sec. and Derivative Litig., 275 FRD 154, 158-59 (SDNY 2011) (concluding that email messages sent to and from the husband‘s work email address were not protected by the marital communications privilege where employees were regularly reminded that the email account was for business purposes only and email messages contained there were subject to disclosure); Aventa Learning, Inc. v. K12, Inc., 830 F Supp 2d 1083, 1108 (WD Wash 2011) (finding that the attorney-client privilege did not attach to employee‘s email messages and communications created and sent or received on the employer‘s email systems and stored on the employer‘s servers, where employee had been informed that employer reserved right to access and disclose any file or communication stored on the employee‘s computer at any time).
We agree with relators and amicus that overcoming the presumption of confidentiality must come from a particular evidentiary showing. However, the Asia Global factors may not be fully encompassing of all the circumstances that a court properly might consider. Accordingly, we state the rule in more general terms: The burden to overcome the presumption of confidentiality falls to the proponent of the evidence allegedly barred by privilege. Overcoming the
presumption requires an evidentiary showing, one focused on the circumstances and context of the communications, that must establish more than a risk that privileged communications ”might be disclosed.” Chaimov, 370 Or at 402 (emphasis in original).
Applying the above considerations to the facts before us, we conclude that LPMC
E. Waiver of Privilege Under OEC 511
We now briefly address waiver of the attorney-client privilege under
“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 * * * voluntarily discloses or consents to disclosure of any significant part of the matter or communication.”
Unlike confidential communication under
“not intended to be disclosed,”
In Goldsborough, we distinguished our previous decision in Bryant v. Dukehart, 106 Or 359, 210 P 454 (1923), by noting that, “[i]n Bryant, there was no showing that the party claiming the privilege had turned over the privileged material.” Goldsborough, 314 Or at 342. And as we explained in Haas, it is the showing of an actual disclosure that is the predicate for further
“[W]hen 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.‘”
325 Or at 498 (quoting
We have already explained why email messages sent from an employer‘s email system do not, per se,
overcome the presumption of confidentiality. It follows that Mr. Gollersrud‘s departure from employment
In summary, we conclude that any email messages on Mr. Gollersrud‘s former employers’ servers containing communications between relators and their attorneys are confidential communications as defined in
A peremptory writ of mandamus shall issue.