45 Trial Lawyer • Spring 2024 Between the Sheets Lisa T. Hunt Cody Hoesly Nadia Dahab By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Nadia Dahab, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT Attorney-client emails left on former employers’ servers are presumptively confidential; a mere risk of disclosure does not overcome the presumption. Neither can waiver be applied in the absence of any evidence of voluntary disclosure. Gollersrud v. LPMC, LLC., 371 Or 739 (2023), James, J. Julian Marrs, C. Robert Steringer, and Adina Matasaru represented the plaintiff. Lisa T. Hunt filed the amicus brief for OTLA. In a real estate investment fraud case, the plaintiffs Inez and David Gollersrud, mother and son, moved the trial court to quash subpoenas the defendant issued to three of Gollersrud’s former employers seeking all of Gollersrud’s emails stored on their servers. Gollersrud asserted that some of the emails were protected by attorney-client privilege and, in the very least, should be produced first to the plaintiffs’ attorney for privilege review. The defendant claimed that (1) Gollersrud had no reasonable expectation of privacy in emails transmitted on his employers’ email systems, and (2) any privilege had been waived when Gollersrud terminated his employment and left those emails on the employers’ servers. The trial court agreed with the defendant, denied the motion and compelled the production of the emails. The plaintiffs petitioned the Supreme Court for a writ of mandamus and the Supreme Court determined that the issues in this case fell squarely within its mandamus jurisdiction. The Supreme Court first determined that, under the attorney-client privilege at OEC 503(2) and the definition for “confidential communication” at OEC 503(1)(b), the initial burden for the individual asserting privilege is to establish that the communications (1) were between the persons therein identified, and (2) were made to facilitate the rendition of legal services. Once established, the communications are presumptively confidential and the burden shifts to the See Sheets 46
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