SALEM, Ore. (Legal Newsline) - A man who communicated with his lawyers on his company email system and left the messages behind after he left can claim the attorney-client privilege, the Oregon Supreme Court ruled, rejecting arguments the privilege was waived because his employer could read the emails.
There is no hard and fast rule for when emails become accessible to the opposing party in litigation, but there is a presumption of confidentiality if they involve communications between a lawyer and client, the court said in a Dec. 21 decision it described as the first to address this exact issue,
David Gollersrud and his mother Inez sued Landmark Professional Mortgage and others over a real estate investment and Landmark issued subpoenas to all of Gollersurd’s former employers seeking all email correspondence since 2008. The Gollersurds moved to quash the subpoenas, saying they would sweep up emails to their lawyers that were protected by the attorney-client privilege.
The trial court refused to quash the subpoenas, but the Oregon Supreme Court issued a writ of mandamus ordering the court to either vacate its order or show cause why it shouldn’t do so. The trial court refused and the case advanced to the Supreme Court.
Landmark argued it should obtain access to the emails because Gollersrud had no expectation of privacy when he sent them over an employer’s network and left them behind after he quit. The Gollersruds, supported by the Oregon Trial Lawyers Association, cited state law, which defines the attorney-client privilege to include communications “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.”
The Oregon Supreme Court already decided there is a presumption of confidentiality for communications between spouses, shifting the burden of proof to the party trying obtain the information. It extended that reasoning to attorney-client communications, saying “both privileges share the underlying goal of encouraging open communication between the persons in the protected relationships.”
Given the realities of modern life, the court said, any other rule would be impractical. “For many, a clear divide between work and nonwork does not exist,” the court said.
Landmark failed to show any of Gollersrud’s employers had actually read the emails or provide any other evidence to support a claim he waived the privilege, the court said. “The record here is essentially blank,” the court concluded.