Crimson Trace Corp. v. Davis Wright Tremaine LLP

Attorney-client privilege, as defined in OEC 503, applies to communications between lawyers in a firm and in-house counsel. The appropriate remedy when a discovery order erroneously requires disclosure of privileged information is mandamus.

Davis Wright Tremaine (DWT) challenged a trial court order compelling production of certain materials that are protected by attorney-client privilege. DWT was retained by Crimson Trace Corp. to prosecute certain patents. DWT was also retained to represent Crimson Trace Corp. with a competitor over patent infringement. DWT became concerned that a competitors counterclaim would create a conflict of interest between Crimson and the DWT lawyers. After litigation, Crimson sued DWT for malpractice, alleging DWT failed to advise Crimson about problems with a patent, failed to advise against suing the competitor, and failed to advise Crimson when conflicts arose. The Court first found that mandamus is an appropriate remedy when a discovery order erroneously requires disclosure of privileged information. Crimson argued that in order for OEC 503 to apply there must be an attorney client relationship. The Court found this reasoning unpersuasive because the rule does not mention that requirement. The Court then analyzed whether the communications at issue satisfied the three requirements set out in OEC 503(2). First, the Court found that the communication was "between the client and the clients attorney." In addition, the communications were confidential because the DWT attorneys intended the communications to be confidential. Lastly, the Court found that the communications were not necessarily made for the purpose of facilitating legal services - here the court expressly found a "fiduciary exception." Peremptory writ of mandamus to issue.