No. 38 December 21, 2023 739

38

371 Or Gollersrud v. LPMC, LLC

2023 December 21, 2023

IN THE SUPREME COURT OF THE 

STATE OF OREGON

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)

Original proceeding in mandamus.*

Argued and submitted May 16, 2023.

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.

______________

* On petition for alternative writ of mandamus from an order of Marion 

County Circuit Court, Audrey J. Broyles, Judge.
740 Gollersrud v. LPMC, LLC

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog,

Bushong, James, and Masih, Justices.**

JAMES, J.

A peremptory writ of mandamus shall issue.

______________

** Baldwin, Senior Judge, Justice pro tempore, participated in oral argument, but did not participate in the consideration or decision of this case.
Cite as 371 Or 739 (2023) 741

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 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 disclosure under OEC 511, for email communications sent from 

and stored on an employer’s server, the record here is insufficient. Accordingly, a peremptory writ shall issue.

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, 

LLC (LPMC). Because one of the other defendants was 

involved in an ongoing bankruptcy proceeding, the parties 

agreed to informally abate the case pending the outcome of 

that proceeding. During that abatement period, they agreed 

to mediate and conduct informal, limited discovery.
742 Gollersrud v. LPMC, LLC

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 OEC 503.1 They alternatively proposed 

that the scope of the subpoenas be limited or that the trial 

court order that their attorneys be permitted to screen privileged documents produced in response to the subpoenas.

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 

1 Although relators initially opposed LPMC’s subpoenas on several additional grounds, they did not raise those issues in their mandamus petition, and 

we do not consider them here.
Cite as 371 Or 739 (2023) 743

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 ORS 34.110. First, the writ may be 

issued only to enforce “a known, clear legal right.” State v. 

Moore, 361 Or 205, 212, 390 P3d 1010 (2017). Second, the 

writ may be issued only if there is no “plain, speedy and 

adequate remedy in the ordinary course of the law.” ORS 

34.110. In most cases, direct appeal is a plain, speedy, and 

adequate remedy. See State ex rel Automotive Emporium v. 

Murchison, 289 Or 265, 268-69, 611 P2d 1169, reh’g den, 

289 Or 673, 616 P2d 496 (1980). However, when a discovery 

order erroneously requires disclosure of privileged communications, we have held that direct appeal is inadequate, 
744 Gollersrud v. LPMC, LLC

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 OEC 503 and 

511, then an appeal would not be adequate to remedy the 

harm caused by the disclosure of those protected communications. Mandamus being an appropriate vehicle to address 

the issue here, we turn to the merits.

B. Overview

The attorney-client privilege is one of the oldest and 

most broadly recognized evidentiary privileges. The privilege, codified at OEC 503,2

 seeks to “‘encourage full and 

frank communication between attorneys and their clients 

and thereby promote broader public interests in the observance of law and administration of justice.’” Haas, 325 Or at 

500 (quoting Upjohn Co. v. United States, 449 US 383, 389, 

101 S Ct 677, 66 L Ed 2d 584 (1981)). Although the attorneyclient privilege is expansive, it is not absolute; OEC 503 

establishes threshold requirements for the privilege, and 

OEC 511 allows for waiver of any evidentiary privilege, 

including the attorney-client privilege. Longo v. Premo, 355 

Or 525, 533, 326 P3d 1152 (2014).

OEC 503(2) provides, in part:

“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[.]”

2 The legislature amended OEC 503 in 2023. Or Laws 2023, ch 72, § 33. 

Because those amendments are not effective until January 1, 2024, and, in all 

events, are not material to our analysis, we cite the current version of the statute.
Cite as 371 Or 739 (2023) 745

(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 OEC 503(2)(a) to (e); (2) that the communication be made for the purpose of facilitating the rendition of professional legal services to the client; and (3) that 

the communication be “confidential” within the meaning of 

OEC 503(1)(b), which defines a “confidential communication” to mean

“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 OEC 503(1)(b).

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).

C. The Burden of Proof to Establish a Confidential 

Communication

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 ORS 411.320). Here, relators asserted 

the attorney-client privilege in their motion to quash, but 

the support for that assertion initially consisted solely of 

Mr. Gollersrud’s declaration, which stated, in relevant part:
746 Gollersrud v. LPMC, LLC

“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 OEC 503(2)(a) to (e), and that the communications 

were made for the purpose of facilitating the rendition of 

professional legal services. The sole issue is whether the 

communications were confidential, and who bore the burden 

on that question.

The core of OEC 503(1)(b)’s definition of a confidential communication is a “communication not intended 

to be disclosed to third persons.” It is a phrase framed in 

the negative. We have interpreted similar wording, in the 

context of other privileges, to create a presumption of confidentiality. In Serrano, this court determined that there 

can be a presumption of confidentiality when considering 

marital communications, and that that presumption can 

only be defeated if the “proponent of the evidence at issue 

establishes that ** * intent to disclose is apparent from the 

circumstances.” 346 Or at 330. To reach that conclusion, 

the Serrano court determined that, based on OEC 505(1)(a) 

Commentary (1981), the legislature intended for communications made during marriage to be presumed confidential 

under OEC 505. Id. at 324-26. The court further explained 

that, if the other requirements for the privilege are met, the 

burden of persuasion shifts to the proffering party to rebut 

the presumption of privilege “by demonstrating that the 

communicating spouse did not intend the communication to 

be confidential.” Id. at 326.
Cite as 371 Or 739 (2023) 747

We see no reason why the same presumption should 

not apply to OEC 503.3 Both evidentiary privileges use the 

phrase “not intended to be disclosed to” others in their definitions for “confidential communication.” OEC 503(1)(b); OEC 

505(1)(a). In addition, the commentaries to both OEC 505 

and OEC 503 contain nearly identical provisions explaining that the presence of intent to disclose must be apparent 

for the communications to not be confidential. OEC 503(1)(b) 

Commentary (1981) (“Unless an intent to disclose is apparent, however, the attorney-client communication is confidential.”); OEC 505(1)(a) Commentary (1981) (“Unless intent to 

disclose is apparent, a communication between [spouses] is 

confidential.”). Further, both privileges share the underlying goal of encouraging open communication between the 

persons in the protected relationships. See Serrano, 346 

Or at 325 n 6 (so stating). Although this court has not formally adopted a presumption of confidentiality in attorneyclient privilege cases, it has previously found communications to be confidential when the parties merely state that 

they intended their communications to be confidential. See 

Crimson Trace Corp., 355 Or at 490-91 (determining that 

the relevant communications were confidential because the 

parties intended for them to be confidential).

We thus conclude that, in asserting the attorneyclient 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 

3 Although the Serrano court stated that reference to other evidentiary rules 

was “of limited value” in that case, 346 Or at 323, we do not find the same problem 

here. In Serrano, one of the issues concerned a unique feature of the marital communications privilege: unlike many of the other privileges that are held by one person (attorney-client, psychotherapist-patient, physician-patient, and clergy-penitent privileges), the spousal communication privilege is held by both spouses. Id.

at 323-24. The Serrano court found the case law on the other privileges unhelpful because it was tasked with deciding whether the “intent to disclose” inquiry 

focused on the communicating or the non-communicating spouse. Id. at 323-25.
748 Gollersrud v. LPMC, LLC

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 OEC 503(1)(b) provides 

that, “[u]nless an intent to disclose is apparent, ** * the 

attorney-client communication is confidential.” OEC 503(1)(b) 

Commentary (1981). The commentary further notes that 

intent is to be “inferred from the circumstances, e.g., taking or failing to take precautions.” Id. The rule contemplates a circumstance-specific inquiry, not a one-size-fits-all 

approach.

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 
Cite as 371 Or 739 (2023) 749

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 OEC 503(1)(b) focuses on the client’s intent” and 

that there was “no evidence that the state agencies or [the 

department] intended to disclose the forms at any time. The 

state agencies were only warned that the forms might be 

disclosed in the future, which is not the same.” Id. at 401-02 

(emphases in original).

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. OEC 503 is based on the federal analog, proposed Rule 503 of the Federal Rules of Evidence. Longo, 355 

Or at 534; see also OEC 503 Commentary (1981) (OEC 503 “is 

based on proposed Rule 503 of the Federal Rules of Evidence, 

which was prescribed by the United States Supreme Court 

and submitted to Congress but not enacted.”). Notably, a purpose of OEC 503 was to extend coverage “to areas in which 

current law [was] silent or unclear.” OEC 503 Commentary 

(1981). As the commentary states, “[i]n the past, substantial 

authority has allowed an eavesdropper to testify to overheard privileged conversations and has admitted intercepted 

privileged letters. The evolution of ever more sophisticated 

techniques of recording and interception calls for the abandonment of that position.” OEC 503(2) Commentary (1981). 

The legislature intended OEC 503 to be adaptive to changing times and changing modes of communication. OEC 503, 

is, accordingly, a rule grounded in practicalities and pragmatism. OEC 503 was intended to govern how people realistically communicate. See, e.g., OEC 503(1)(b) Commentary 

(1981) (“The rule allows some disclosure beyond the immediate circle of lawyer and client and their representatives without impairing confidentiality, as a practical matter.”).

LPMC’s proposed per se rule conflicts with the 

pragmatism of OEC 503 in that it ignores the practical 
750 Gollersrud v. LPMC, LLC

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 
Cite as 371 Or 739 (2023) 751

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.

In contrast to LPMC’s per se approach, relators and 

amicus urge us to look to the framework adopted by the 

United States Bankruptcy Court for the Southern District 

of New York in In re Asia Global Crossing Ltd., 322 BR 247 

(Bankr SDNY 2005). There, the bankruptcy court held that, 

to determine an employee’s privacy expectations regarding 

computer files and email on an employer’s servers, a court 

should consider four factors:

“(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?”

322 BR at 257.

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 
752 Gollersrud v. LPMC, LLC

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 

4 Asia Global’s approach is similar to that employed in some other jurisdictions. For example, a California appellate court determined that the plaintiffemployee’s email messages to her attorney using her business email account were 

not privileged in light of the employer’s policy against personal use of the business 

email account and the employee’s awareness of that policy. Holmes v. Petrovich 

Development Co., 191 Cal App 4th 1047, 1071, 119 Cal Rptr 3d 878 (2011).
Cite as 371 Or 739 (2023) 753

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 failed to make an adequate evidentiary showing to overcome the presumption of confidentiality. The record here is essentially blank. LPMC submitted 

no evidence that Mr. Gollersrud was aware of any employer 

policies concerning personal use of company equipment or 

the monitoring of employee email. LPMC submitted no evidence that Mr. Gollersrud’s prior employers had ever acted 

on any email monitoring policies, either in their treatment 

of him, or other employees. Indeed, LPMC submitted no evidence that Mr. Gollersrud’s former employers even had such 

policies at all. Finally, LPMC submitted no evidence that, 

whether in accordance with a policy or not, email was, in 

fact, monitored by the companies. Whether such evidence 

would have been sufficient to overcome the presumption of 

privilege—a point we do not decide—the record here lacked 

even that showing and was insufficient to overcome a claim 

of OEC 503 privilege.

E. Waiver of Privilege Under OEC 511

We now briefly address waiver of the attorneyclient privilege under OEC 511. LPMC asserts that, even 

if Mr. Gollersrud’s email messages were confidential communications that the attorney-client privilege protects, he 

waived any privilege when he failed to delete those email 

messages from his previous employers’ servers upon severing his employment.

OEC 511 provides, in part:

“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 OEC 

503(1)(b), which focuses on whether a communication was 
754 Gollersrud v. LPMC, LLC

“not intended to be disclosed,” OEC 511 waiver is centered 

around an actual disclosure, whether express or implied. See

Edward J. Imwinkelried, 1 The New Wigmore: Evidentiary 

Privileges § 6.8, 894 (3d ed 2017) (explaining that waiver of 

the privilege, in contrast, occurs after initial intent attaches 

and the holder’s subsequent conduct manifests an intent to 

surrender the communication’s confidentiality via disclosure). Accordingly, whether a communication was disclosed 

is first addressed as a factual inquiry by the trial court. 

OEC 104(1) (preliminary questions concerning, among other 

things, the existence of a privilege, shall be determined by 

the trial court); Goldsborough v. Eagle Crest Partners, Ltd., 

314 Or 336, 342, 838 P2d 1069 (1992) (whether waiver of the 

attorney-client privilege occurred is a preliminary question 

of fact for the trial court under OEC 104). When a court 

orders disclosure, we look at the record in the light most 

favorable to disclosure, considering whether there was any 

evidence to support the factual finding. See State ex rel Ware 

v. Hieber, 267 Or 124, 127, 515 P2d 721 (1973). Whether a 

disclosure constitutes a waiver under OEC 511 is a question 

of law, reviewed for errors of law. Goldsborough, 314 Or at 

342.

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 OEC 511 analysis:

“[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 OEC 511). Finally, in Chaimov we 

noted that “the person must disclose part of the communication itself in order to effect a waiver.” 370 Or at 401.

We have already explained why email messages sent from an employer’s email system do not, per se, 
Cite as 371 Or 739 (2023) 755

overcome the presumption of confidentiality. It follows that 

Mr. Gollersrud’s departure from employment did not, per se,

establish voluntary disclosure. 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.

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 OEC 503(1)(b) 

and are therefore protected under OEC 503, the attorneyclient 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 establish an express or implied disclosure to a third party, as 

required under OEC 511.

A peremptory writ of mandamus shall issue.