Thursday, December 21, 2023

Presumptively Confidential

The Oregon Supreme Court has issued a preemptory writ in a matter involving the confidentiality of stored email communications

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 OEC 503(1)(b); and (2) if they are, whether an employee’s act of leaving employment and, in turn, leaving those email messages on the employer’s email system constitutes a disclosure of communications and a waiver of the attorney-client privilege under OEC 511. As to the first issue regarding confidentiality under OEC 503(1)(b), based on the text, context, and legislative history, we conclude that communications between a client and an attorney, made for the purpose of facilitating the rendition of professional legal services to the client, are presumptively confidential. The client’s mere use of an employer’s email system, without more, does not overcome that presumption of confidentiality. As to the second issue concerning waiver of privilege under OEC 511, we hold that, at least on this record, leaving the emails on the employers’ systems did not establish actual disclosure of communications - a necessary predicate to an OEC 511 waiver analysis. Although we do not foreclose the possibility that a party could make an evidentiary record demonstrating a lack of privilege under OEC 503(1)(b), or that such privilege had been waived through actual disclo-sure under OEC 511, for email communications sent from and stored on an employer’s server, the record here is insuf-ficient. Accordingly, a peremptory writ shall issue.
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 OEC 503(1)(b) and are therefore protected under OEC 503, the attorney-client privilege. On this record, the confidentiality of those communications has not been overcome by a showing by LPMC. Similarly, this record is legally insufficient to estab-lish an express or implied disclosure to a third party, as required under OEC 511.
(Mike Frisch)

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