In Gollersrud v. LPMC, LLC, 371 Or. 739 (Or. Dec. 21, 2023), the Supreme Court of Oregon ruled on the issue of waiver of privilege for emails on an employer email system, ruling in a writ of mandamus 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.”

Case Background

This case involved allegations of fraud, among other claims, in a real estate investment relationship between plaintiffs and several defendants, including LPMC, LLC (LPMC). 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 Oregon Evidence Code (OEC) 503.

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 was the only evidence in the record regarding his former employers’ email policies.

After a delay due to the bankruptcy of another defendant, 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. Relators then petitioned the Oregon Supreme Court for a writ of mandamus, which 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, so the parties proceeded to argument in this court.

Court’s Ruling

After determining that this Court has jurisdiction to issue the writ, the Court then turned its attention to the issue of waiver of privilege for emails on an employer email system. Noting: “The sole issue is whether the communications were confidential, and who bore the burden on that question”, the Court stated: “The core of OEC 503(1)(b)’s definition of a confidential communication is a ‘communication not intended to be disclosed to third persons.’”

Continuing, the Court stated: “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 OEC 503(2)(a) to (e), that (2) were made for the purpose of facilitating the rendition of professional legal services. When that is established, such communications are presumptively confidential. At that point, the burden shifts to the proponent of the evidence to overcome the presumption of confidentiality. In this case, as discussed, no party is disputing that Mr. Gollersrud’s first declaration…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.”

Rejecting LPMC’s argument 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”, the Court stated: “We decline to adopt LPMC’s per se approach for a number of reasons… 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… 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… Most personal email is hosted by ‘free’ email service providers…who…themselves reserve the right to monitor the contents.”

As a result, the Court stated: “We agree with relators and amicus that overcoming the presumption of confidentiality must come from a particular evidentiary showing… 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.”

The Court also rejected waiver of privilege for the emails under OEC 511, stating: “Nothing in this record establishes even actual disclosure—there is no evidence that Mr. Gollerrud’s former employers have ever read, reviewed, or learned the contents of the emails—let alone a voluntary disclosure on the part of Mr. Gollersrud. Without evidence of a voluntary disclosure, an OEC 511 analysis of waiver, on this record, is inapplicable.”

So, what do you think? Are you surprised by the Court’s ruling on waiver of privilege for emails on an employer email system? Please share any comments you might have or if you’d like to know more about a particular topic.

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