682 October 1, 2026 No. 40
IN THE SUPREME COURT OF THE
STATE OF OREGON
SPRAGUE RIVER CATTLE CO.,
Plaintiff-Adverse Party,
v.
STATE OF OREGON;
Oregon Water Resources Department; and Ivan Gall,
as Director of the Oregon Water Resources Department,
Defendants-Relators.
(CC 22CV27077) (SC S072562)
En Banc
Original proceeding in mandamus.*
Argued and submitted June 9, 2026.
James L. Buchal, Murphy & Buchal LLP, Portland,
argued the cause and filed the brief for plaintiff-adverse
party.
Carson L. Whitehead, Assistant Attorney General,
Salem, argued and filed the briefs for defendants-relators.
Also on the briefs were Dan Rayfield, Attorney General and
Paul L. Smith, Solicitor General.
BUSHONG, J.
A peremptory writ of mandamus shall issue.
* On petition for peremptory writ of mandamus from an order of the Marion County Circuit Court, Channing Bennett, Judge.
Cite as 375 Or 682 (2026) 683
684 Sprague River Cattle Co. v. State of Oregon
BUSHONG, J.
This original proceeding in mandamus presents an
unresolved issue regarding the interplay between the rules
governing pretrial discovery in a civil case and Oregon’s public records law. The trial court ordered relators1 to produce attorney-client privileged documents that were more than 25
years old, because those documents may be subject to disclosure under the public records law. Relators sought mandamus relief, contending that the discovery order violates
ORCP 36 B—which limits the scope of discovery to information that is not privileged—and the attorney-client privilege in OEC 503. We issued an alternative writ and, after
the trial court adhered to its ruling, set the case for briefing and argument. We now conclude that the trial court erred in
compelling relators to produce the documents in discovery.
As we will explain, the public records law and discovery rules provide two distinct and independent ways to obtain records from a public body. A party that requests discovery
under the rules of civil procedure in connection with pending civil litigation with a public body—and that does not request disclosure under the public records law—is bound by the procedural requirements and limitations that apply to discovery in civil litigation. The legislature did not intend to authorize courts to circumvent the public records law disclosure procedures by ordering the production of privileged records in
discovery based on a determination that the records may be
subject to disclosure under the public records law.
Thus, the trial court here erred when it compelled
production of privileged records in discovery. Accordingly,
we issue a peremptory writ of mandamus directing the trial
court to vacate its discovery order.
I. BACKGROUND
We take the procedural and undisputed facts from
the trial court record. The plaintiff in this civil action,
1
Relators — defendants below — are the State of Oregon; the Oregon Water Resources Department (OWRD); and, originally, Tom Byler, named in his official capacity as Director of the Oregon Water Resources Department. Byler has retired; OWRD’s current director is Ivan Gall. Under ORCP 34 F(1), Gall is “automatically substituted” as a party in place of Byler. In this opinion, we refer to relators collectively as “OWRD.”
Cite as 375 Or 682 (2026) 685
Sprague River Cattle Company (SRCC), alleged in its complaint that OWRD unconstitutionally took SRCC’s water
rights without compensation. According to SRCC, the taking occurred as part of OWRD’s adjudication of water rights
in the Klamath Basin. OWRD initiated that adjudication
in 1975 pursuant to ORS chapter 539 and completed the
administrative phase in 2014.2 Many parties filed exceptions to OWRD’s administrative determinations in Klamath
County Circuit Court; that action is currently pending.3
This case is separate from—but related to—the
water rights adjudication proceeding that is pending in
Klamath County Circuit Court. In its complaint in this case, SRCC alleges that it owns land in Klamath County and
holds water rights in the Klamath Basin appurtenant to its
property. SRCC further alleges that OWRD’s administrative quantification of the Klamath Tribes’ instream water
rights—which OWRD determined have priority over SRCC’s
rights—and related orders deprived SRCC of the benefit of
its water rights. According to SRCC, that amounted to an
unconstitutional taking of SRCC’s water rights without
compensation.
After filing its complaint, SRCC served OWRD
with requests for production of documents under ORCP
43.4 Among other things, SRCC sought documents relat2
ORS chapter 539 describes the process for determining water rights that were appropriated for a landowner’s beneficial use before February 24, 1909, the effective date of Oregon’s first Water Rights Act. Water rights appropriated for beneficial uses after that date are generally governed by ORS chapter 537. See Klamath Irrigation District v. Water Resources Dept., 321 Or App 581, 584, 518 P3d 970 (2022) (describing the effect of the Water Rights Act); Warner Valley Stock Co. v. Lynch, 215 Or 523, 548, 336 P2d 884 (1959) (noting the division in Oregon law for determining water rights before and after the 1909 effective date of the Water Rights Act).
3
OWRD’s administrative water rights determinations may be enforced under ORS 539.130(4) while the review in Klamath County Circuit Court is pending. See Klamath Irrigation District, 321 Or App at 585 (explaining that OWRD’s water rights determinations in the Klamath Basin are “presently enforceable” and “must be followed by all owners of determined claims pending the judicial review phase” of the adjudication that is pending in Klamath County Circuit Court).
4
As relevant here, ORCP 43 A(1) authorizes a party in litigation to “serve on any other party a request to produce * * * any designated documents * * * that constitute or contain matters within the scope of [ORCP] 36 B and that are in the possession, custody, or control of the party on whom the request is served.” 686 Sprague River Cattle Co. v. State of Oregon
ing to the water rights claimed by the Klamath Tribes and
OWRD’s determination of the tribal claims. OWRD produced thousands of documents in response—78,189 pages
as of June 5, 2025—but declined to produce other documents on the grounds of attorney-client privilege. SRCC
filed a motion to compel, and the trial court ordered OWRD
to produce a privilege log describing the documents that it
had withheld based on a privilege claim. SRCC then filed
a motion to compel production of attorney-client privileged
documents that were more than 25 years old, contending
that those documents were subject to disclosure under the
public records law and, therefore, should be produced in discovery. SRCC did not seek disclosure of those records under
the public records law, choosing instead to seek production
of those records through the discovery process. About 446
documents listed on OWRD’s privilege log are in dispute.
After hearing the arguments of the parties and considering their supplemental briefing, the trial court granted SRCC’s motion to compel, stating in its oral ruling that it
saw a “conflict” between the rules of discovery and the public records law, and that it was ordering production “in the interest of judicial economy” without deciding whether those documents would be admissible in evidence in the pending
litigation. The trial court’s written order provides as follows:
“Defendants shall produce the 446 assertedly privileged documents identified by plaintiff in the spreadsheet
[counsel] transmitted to them on November 13, 2025.
Approximately 63 of those documents do not bear a date on
the privilege log, and this order shall not apply to any of the
documents, undated in the privilege log, which defendants
represent are less than 25 years old.”
The order further states that OWRD has “not waived the
right to contend that the documents are privileged, a question to be determined in further proceedings.” Production
of the documents was subject to a protective order “limiting their use to this litigation and prohibiting the distribution of confidential materials to parties not authorized by the protective order.”
OWRD then filed a mandamus petition in this
court, arguing that the trial court erred in ordering OWRD
Cite as 375 Or 682 (2026) 687
to produce in discovery documents that are protected by
the attorney-client privilege even though those documents
might be subject to disclosure under the public records law. This court issued an alternative writ, and the trial court
adhered to its order compelling production.
II. ANALYSIS
Mandamus is a remedy to correct errors of law for
which there is no other “plain, speedy and adequate remedy
in the ordinary course of the law.” ORS 34.110. We have recognized that a trial court’s decision ordering the production of privileged information “is subject to review in mandamus
precisely because ordinary appeal provides an inadequate
remedy.” Crimson Trace Corp. v. Davis Wright Tremaine
LLP, 355 Or 476, 485, 326 P3d 1181 (2014). That is because,
“once a privileged communication has been disclosed, the
harm cannot be undone.” Gollersrud v. LPMC, LLC, 371 Or
739, 744, 541 P3d 864 (2023) (citations omitted). Thus, mandamus “ ‘is an appropriate remedy when a discovery order
erroneously requires disclosure of a privileged communication.’ ” Crimson Trace Corp., 355 Or at 485 (quoting State
ex rel OHSU v. Haas, 325 Or 492, 497, 942 P2d 261 (1997)).
To determine whether the trial court erroneously
compelled discovery of privileged documents in this case, we must interpret and apply the discovery rules in ORCP 36 B,
the attorney-client privilege codified in OEC 503, and the
applicable provisions of the public records law in ORS chapter 192, using our familiar methodology focusing on text,
context, and any relevant history. Gollersrud, 371 Or at 745; Crimson Trace Corp., 355 Or at 485; State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009). We begin with an overview of the applicable statutes and rules and our decision in City of Portland v. Bartlett, 369 Or 606, 509 P3d 99 (2022), which discussed the interplay between the attorney-client
privilege and the public records law in a different context. A. ORCP 36 B and the Attorney-Client Privilege
ORCP 36 B defines the scope of discovery in civil
cases. The rule provides, in pertinent part, that “parties
may inquire regarding any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery 688 Sprague River Cattle Co. v. State of Oregon
or to the claim or defense of any other party[.]” ORCP 36
B(1) (emphasis added). Privileges are listed, defined, and, in some instances, limited in OEC 503 to OEC 514.
The attorney-client privilege set out in OEC 503
“is one of the oldest and most broadly recognized evidentiary privileges.” Gollersrud, 371 Or at 744. The privilege
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 privilege “is expansive, it is not absolute[.]” Gollersrud, 371 Or at 744.
OEC 503 “establishes threshold requirements for
the privilege, and OEC 511 allows for waiver of any evidentiary privilege, including the attorney-client privilege.” Gollersrud, 371 Or at 744. In general, an assertion of the
attorney-client privilege in Oregon requires “(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)[.]” Id. at 745.
Although OEC 503 is a rule of evidence, the rule is
not limited to determining the admissibility of privileged
information in evidence. OEC 503(2) also prevents the disclosure of information that is covered by the privilege. That rule 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[.]”
OEC 503(2). A “confidential communication” is
“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.”
OEC 503(1)(b).
Cite as 375 Or 682 (2026) 689
The attorney-client privilege can be waived as provided in OEC 511. That rule provides, in part, that a person
“upon whom [OEC 503 to 514] confer a privilege * * * waives
the privilege if the person or the person’s predecessor
while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or
communication.”
OEC 511.
The legislature has amended the privilege rules on
two occasions to address how those rules interact with the
public records law. First, in 2007, the legislature amended
OEC 503 to add a new subsection—OEC 503(7). See Or Laws
2007, ch 513, § 3. That subsection states:
“Notwithstanding [OEC 511], a privilege is maintained
under this section for a communication ordered to be disclosed under ORS 192.311 to 192.478 [the public records
law].”5
OEC 503(7). Then, in 2017, the legislature amended OEC
511 to add the following provision:
“Voluntary disclosure does not occur when a public body,
as defined in ORS 192.410, discloses information or records
in response to a written request for public records made
under ORS 192.410 to 192.505.”
Or Laws 2017, ch 456, § 9. The significance of those legislative changes to OEC 503 and OEC 511 to the issue presented here is discussed more fully later in this opinion.
B. The Public Records Law
The statutory right of Oregonians to inspect public
documents “goes back at least to 1862[.]” Bartlett, 369 Or
at 610 (citing General Laws of Oregon, Civ Code, ch VIII,
title V, § 707, p 326 (Deady 1845-1864)). The public records law “took its current form in 1973[.]” Id. (citing Or Laws
1973, ch 794, § 3). The law provides that “[e]very person
5
That amendment applies to “public records created on or after the effective date” of the 2007 Act. Or Laws 2007, ch 513, § 6. Because OEC 503(7) applies to records that were “ordered to be disclosed under” the public records law, and this case does not involve such records, we need not decide whether OEC 503(7) would maintain the privilege if records created before the effective date of the 2007 Act were ordered to be disclosed under the public records law.
690 Sprague River Cattle Co. v. State of Oregon
has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS
192.338, 192.345 and 192.355.” ORS 192.314(1). Under the
public records law, “ ‘disclosure is the rule. Exemptions from disclosure are to be narrowly construed.’ ” Bartlett, 369 Or at 611 (quoting Guard Publishing Co. v. Lane County School
Dist., 310 Or 32, 37, 791 P2d 854 (1990)).
The public records law sets out detailed procedures
for requesting and obtaining public records. When “a person” makes a “written request” for either a copy of a public record or a reasonable opportunity to inspect or copy the record,
ORS 192.324(1), the custodian of those records is required
“within five business days after receiving the request [to]
acknowledge receipt of the request or complete the public
body’s response to the request.” ORS 192.324(2). The public
body “may establish fees reasonably calculated to reimburse
the public body for [its] actual cost of making public records available[.]” ORS 192.324(4)(a). In general, a public body is required to complete its response “as soon as practicable and without unreasonable delay.” ORS 192.329(1). The response
may assert “any exemptions from disclosure that the public body believes apply to any requested records[.]” ORS
192.329(2)(b). If the public body has informed the requester of a fee, the public body’s obligation to complete its response to the request “is suspended” until the requester pays the
fee or it is waived. ORS 192.329(3)(a). “As soon as reasonably possible but not later than 10 business days” after acknowledging receipt of the request, the public body is required to either complete its response or provide a written statement
that it “is still processing the request” and give a reasonable estimated date by which the public body expects to complete
the response. ORS 192.329(5).
Some public records are “conditionally exempt” from
disclosure under the public records law, which means that
the records are exempt “unless the public interest requires
disclosure in the particular instance.” ORS 192.345. Other
public records are unconditionally exempt from disclosure.
ORS 192.355. One category of unconditionally exempt
records is relevant to this case. That exemption applies to
“[p]ublic records or information the disclosure of which is
Cite as 375 Or 682 (2026) 691
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.” ORS 192.355(9)(a).
In 1979, the legislature amended the public records
law to add the provision that is central to the parties’ dispute in this case. Or Laws 1979, ch 301, § 2. That provision—adopted as former ORS 192.495 (1979), renumbered as
ORS 192.390 (2015)—now provides:
“Notwithstanding ORS 192.338, 192.345 and 192.355,
and except as otherwise provided in ORS 192.398, public
records that are more than 25 years old shall be available
for inspection.”
ORS 192.390.
The public records law also includes detailed procedures to obtain public records that have been withheld from
public inspection based on a claimed exemption or for any
other reason. A person who is denied the right to inspect or receive a copy of any public record of a state agency “may
petition the Attorney General to review the public record
to determine if it may be withheld from public inspection.”
ORS 192.411(1).6 In general, “the burden is on the agency
to sustain its action,” and the Attorney General is required to issue an order resolving the petition “within seven days
from the day the Attorney General receives the petition.”
Id. The Attorney General’s decision is subject to review in
circuit court. ORS 192.411(2). In a circuit court action, “the burden is on the public body” to sustain its decision. ORS
192.431(1). If a person seeking disclosure of public records prevails in court, the person “shall be awarded costs and
disbursements and reasonable attorney fees at trial and on
appeal.” ORS 192.431(3).
A 1999 amendment to the public records law, Or
Laws 1999, ch 574, § 1—now codified at ORS 192.314(2)(a)7—
addresses one aspect of the relationship between the public
records law and civil litigation. Under that provision, a party
6
A person denied the right to inspect or to receive a copy of a public record of a public body other than a state agency may file a petition to review that decision with the district attorney of the county in which the public body is located. ORS 192.415(1).
7
The 1999 legislation, proposed as Senate Bill (SB) 396, amended ORS 192.420. That statute was renumbered as ORS 192.314 in 2017. 692 Sprague River Cattle Co. v. State of Oregon
in civil litigation with a public body—or who has filed a tort claim notice pursuant to ORS 30.275—who seeks disclosure
under the public records law of records that relate to the litigation or the notice, must submit the public records request to “the attorney for the public body.” ORS 192.314(2)(a). The attorney for a state agency for purposes of that statute is the Oregon Attorney General. ORS 192.314(2)(b).
C. Our Decision in Bartlett
As noted, the parties’ dispute in this case is centered
on ORS 192.390, which provides that, “[n]otwithstanding”
certain exemptions listed in the public records law, “public records that are more than 25 years old shall be available
for inspection.” The interplay between that provision and
the attorney-client privilege was the focus of our decision
in Bartlett, but not in the context of a discovery request in pending civil litigation, as in this case.
The defendant in Bartlett submitted a written
public records request to the City of Portland, requesting
copies of three city attorney opinions and one legal memorandum. 369 Or at 608. The parties agreed that those
documents were “public records,” “within the scope of the
attorney-client privilege,” and “more than 25 years old.” Id. The city declined to release those records, arguing that they were exempt from disclosure under the public records law
because of the attorney-client privilege. Id. Pursuant to the statutory procedure for review of the city’s decision in ORS 192.415, the defendant petitioned the district attorney to
order release of the records, contending that ORS 192.390
required their release, notwithstanding the attorney-client
privilege. Id. at 608-09. The district attorney ordered the
city to release the records, and the city sought review of that decision in circuit court. Id. at 609.
That court agreed with the city and held that the
public records law did not require disclosure of the records. Id. The Court of Appeals reversed in an en banc, split decision, and this court allowed review “to consider the relationship between” the public records law and the attorney-client privilege. Id. at 608. After reviewing the text, context, and legislative history of the pertinent provisions of the public Cite as 375 Or 682 (2026) 693
records law and the Oregon Evidence Code, this court concluded that “the communications between the city attorney
and city officials * * * are not exempt from disclosure under ORS 192.390 on the ground that they are subject to the
attorney-client privilege.” Id. at 626.
In reaching that conclusion, we first noted the
“catchall exemption” in ORS 192.355(9)(a)8 —which exempts
from disclosure public records that are “made confidential or privileged under Oregon law”—and the fact that the records
at issue “were exempt from disclosure at the time they were
prepared.” Id. at 612. But we noted that the text of ORS
192.390—first enacted in 1979—“mandates the disclosure”
of public records that are more than 25 years old “notwithstanding” the exemption for privileged records. Id. (brackets omitted). We concluded that the text and structure of ORS
192.390 “strongly suggest that there is no general exemption for public records covered by the attorney-client privilege that are more than 25 years old.” Id.
We then turned to the city’s contentions, many of
which were “founded on the importance of the attorney-client privilege[.]” Id. at 613. We agreed that the privilege “is a foundational principle of our legal system,” but observed that the details of the application of the privilege were “not in play” in that case, because “[e]veryone agrees that the records are privileged.” Id. Because the attorney-client privilege “restricts the disclosure of ‘confidential communications,’ OEC 503(2), privileged public records come within” the “catchall” exemption in ORS 192.355(9)(a). Id. at 614. But, as we explained, “that also means that, after 25 years, they are subject to
disclosure ‘notwithstanding’ that exemption, unless other
grounds for an exemption exist.” Id. (brackets omitted).
The city responded to that textual argument by
asserting that “the legislature cannot have intended the
8
We described that exemption as a “catchall exemption” because, before it was enacted in 1987 (Or Laws 1987, ch 373, § 23e(8)), the public records law had attempted to list every statute that prohibited or restricted disclosure of public records. In 1987, the legislature “abandoned that effort in favor of the catchall exemption.” Bartlett, 369 Or at 616. The attorney-client privilege was listed in the predecessor to ORS 192.355(9)(a), and we have concluded that that privilege “was intended to be captured by the catchall exemption.” Id. No party in this case disputes that the “catchall exemption” includes the attorney-client privilege. 694 Sprague River Cattle Co. v. State of Oregon
‘notwithstanding’ clause to sweep so broadly as to require
the disclosure after 25 years of the ‘confidential or privileged’ records referred to in ORS 192.355(9)(a).” Id. (brackets omitted). We rejected that assertion, noting—as the Court of Appeals had noted—that the city’s argument would require
the court “to entirely rewrite the ‘notwithstanding clause’
by inserting substantial additional text.” Id. We then turned to the city’s arguments “based on related statutes and context[.]” Id. at 615.
The city first argued that the disclosure of records
more than 25 years old does not apply to records that are
subject to the attorney-client privilege, “because that privilege is not a creation of, and it is not codified in, any of the statutes enumerated in ORS 192.390 or elsewhere in the [p]
ublic [r]ecords [l]aw.” Id. (internal quotation marks omitted). We rejected that argument, noting that “nothing in the public records law suggests that the disclosure requirement is so limited.” Id. Rather, the statutory text “provides that records subject to the attorney-client privilege are exempt from disclosure when created because, under ORS 192.355(9)(a),
they are ‘confidential or privileged under Oregon law.’ After 25 years, however, disclosure is required ‘notwithstanding’
that exemption.” Id. (brackets omitted).
We then turned to the city’s contention that the
legislature, when it enacted ORS 192.390, “gave no thought
at all to maintaining the confidentiality of sensitive public records.” Id. at 617. We noted that ORS 192.390, “while
requiring disclosure ‘notwithstanding’ certain exemption
provisions”—including ORS 192.355—also carves out additional exemptions “as * * * provided in ORS 192.398.” Id. at 616 (brackets omitted). Among other things, ORS 192.398
provides that certain medical records and records sealed in
compliance with a statute are exempt from disclosure for
75 years.9 The exclusion of those records from the disclosure requirement after 25 years in ORS 192.390 “refute[d]
the city’s claim that ORS 192.390 applies only to exemptions created in or codified by the public records law” and
9
ORS 192.398(3) also provides that records of a person who is or was in custody are exempt from disclosure for 25 years. Subsection (4) exempts “[s]tudent records required by state or federal law to be exempt from disclosure” and does not specify a time limitation for that exemption. ORS 192.398(4). Cite as 375 Or 682 (2026) 695
its contention that the legislature had not otherwise considered protecting the confidentiality of sensitive public
records. Bartlett, 369 Or at 617. Rather, as we explained,
the exemptions listed in ORS 192.398 showed that “the legislature knew how to—and did—protect such records from
disclosure. But, for whatever reason, the legislature did not provide a similar exception for public records that are covered by the attorney-client privilege.” Id.
Finally, we rejected the city’s arguments “based on
the independent significance of OEC 503 and the importance of the attorney-client privilege.” Id. Those arguments, we explained, “conflate the concepts of a ‘privilege’ applicable to attorney-client public records and an ‘exemption’ from disclosure under the public records law[.]” Id. at 618. In other words, the city’s argument “seem[ed] to contend that, if a record is ‘privileged’ under OEC 503, then
it also must be ‘exempt’ under the public records law.” Id.
But, we explained, “those statutes operate independently,
promote different goals, and use different terms.” Id. The
legislature recognized that difference—highlighted in OEC
503(7)—which “makes clear that, although the disclosure of
a communication may be required because the communication is not exempt from disclosure under the public records
law, the communication nevertheless ‘maintains’ its ‘privileged’ character for evidentiary purposes under the Oregon
Evidence Code.” Id. (brackets omitted).
We also cited OEC 503(7) in addressing the city’s
argument that “the attorney-client privilege and the disclosure requirement of ORS 192.390 are in unreconcilable
conflict[.]” Id. We explained that OEC 503(7) “shows that
the legislature did not view the attorney-client privilege
and the disclosure requirements of the public records law as inconsistent. Rather, the legislature gave effect to both statutes.” Id. It did so by recognizing that “the public records law may require disclosing some communications subject to
the attorney-client privilege * * * but nevertheless protects the evidentiary privilege for such communications.” Id. We
noted the parties’ agreement that “the documents at issue
were privileged at the time they were created and are privileged now.” Id. at 619. But, we concluded, the text of OEC
696 Sprague River Cattle Co. v. State of Oregon
503(7) acknowledges “that privileged documents will sometimes be subject to disclosure under the public records law, and for that reason, provides that the evidentiary privilege will continue to apply to such communications, notwithstanding their disclosure.” Id. at 620.
Turning to the legislative history, we recognized
that the legislative history of ORS 192.390 “does not indicate that the legislature specifically discussed whether the disclosure requirement would apply to records that are
attorney-client communications and are more than 25 years
old.” Id. at 622. Nor did the legislative history of OEC 503, including the addition of OEC 503(7), “affirmatively show
that the legislature intended to create an exception to the
attorney-client privilege for such public records.” Id. Rather, the legislative history was “essentially silent on the specific issue” presented in that case. Id. Under those circumstances, we concluded from the text and context of ORS 192.390 and
OEC 503 that “the legislature understood that the public
records law could require the disclosure of communications
subject to the attorney-client privilege.” Id.
D. Application to This Case
This case presents the flip side of the issue that we
decided in Bartlett. Our decision in Bartlett was based on the requirements of the public records law and did not specifically address discovery in pending civil litigation. We concluded in that context that the legislature’s determination
that public records that were more than 25 years old “shall
be available for inspection,” ORS 192.390, meant that a public body could be required to disclose “communications subject to the attorney-client privilege” in response to a written request for those documents under the public records law.
Bartlett, 369 Or at 622. The issue in this case is whether a court can compel—as part of the discovery process in pending civil litigation—disclosure of documents covered by the
attorney-client privilege that are more than 25 years old,
because those records may be subject to disclosure through
a request under the public records law.
OWRD contends that the 446 privileged records at
issue are not discoverable in civil litigation under ORCP 36 Cite as 375 Or 682 (2026) 697
B and ORCP 43 A. OWRD acknowledges that those records
may not be exempt from disclosure under the public records
law, but it points out that SRCC has not sought disclosure
under the public records law, and it contends that SRCC
may not circumvent the public records law procedures by
seeking discovery in this litigation. SRCC responds that,
because the records are not exempt from disclosure under
the public records law, they are not confidential and, therefore, are subject to discovery regardless of whether the
attorney-client privilege applies as an evidentiary matter.10 SRCC further contends that it should not be required to follow the public records law procedures for disclosure—which
SRCC suggests could delay this litigation “potentially for
years”—because the court can order disclosure as part of
the ordinary discovery process in civil litigation. As we will explain, we agree with OWRD.
SRCC’s first argument—that the records are not
“confidential” and thus are discoverable because they are
subject to disclosure under ORS 192.390—is refuted by
ORCP 36 B, ORCP 43 A(1), OEC 503, OEC 511, and our
decision in Bartlett. ORCP 36 B limits the scope of discovery to matters that are “not privileged,” and ORCP 43 A(1)
limits document discovery to documents “that constitute
or contain matters within the scope of [ORCP] 36 B[.]” A
matter is “not privileged”—and thus, is within the scope of
permissible discovery under ORCP 36 B—if, as relevant to
this case, the matter is not covered by the attorney-client
privilege under OEC 503.
The attorney-client privilege applies to a “confidential communication,” which is defined to mean a communication that is “not intended to be disclosed to third persons[.]” OEC 503(1)(b). Determining whether a communication was
“not intended to be disclosed” requires a court to examine
the intent when the communication was made. A subsequent
10
SRCC argues that OWRD does not have a “confidentiality interest” or “continuing secrecy interest” in the disputed documents. Because ORCP 36 B authorizes discovery of information that is “not privileged,” and OEC 503 gives OWRD a privilege to prevent disclosure of “confidential communications,” we understand SRCC’s argument to be that the documents are not “confidential” and, thus, are subject to discovery regardless of whether they remain privileged for evidentiary purposes.
698 Sprague River Cattle Co. v. State of Oregon
disclosure of a communication that was intended to be confidential when it was made can waive the privilege under
OEC 511, but such a disclosure does not mean that the communication was not intended to be confidential—and thus
was not privileged—when the communication was made.
Moreover, as a matter of statutory interpretation—
and as stated in the 2007 amendment to OEC 503 and the
2017 amendment to OEC 511—an order requiring disclosure of a privileged record under the public records law
does not waive the privilege. OEC 503(7), as amended in
2007, provides that the privilege “is maintained” even if the communication is “ordered to be disclosed” under the public records law. OEC 503(7).11 The 2017 amendment to OEC
511 provides that a “[v]oluntary disclosure” of a privileged record—which ordinarily “waives” the privilege under OEC
511—does not occur when a public body “discloses information or records in response to a written request for public
records” under the public records law. OEC 511.
Thus, those two rules together generally mean that
the privilege is maintained if a public record is “ordered” to be disclosed under the public records law, and the privilege is not waived if a public body discloses the record in response to a public records request. It would make no sense to say
that (1) the privilege is maintained if the Attorney General, a district attorney, or a court ordered disclosure under the public records law, and (2) the privilege is also maintained— that is, it is not waived—if a public body voluntarily discloses the information in response to a public records request, but (3) the privilege is not maintained for discovery purposes if the public body is neither ordered nor requested to disclose the information under the public records law.
We said as much in Bartlett. There, we confirmed
that OEC 503(7) meant that, “although the disclosure of
a communication may be required because the communication is not exempt from disclosure under the public
records law, the communication nevertheless ‘maintains’
11
Our reference to OEC 503(7) here relates to our interpretation of the statute, not its application to the records in dispute in this case. As noted earlier, the addition of subsection (7) to OEC 503 in 2007 only applies to public records created on or after the effective date of that legislation.
Cite as 375 Or 682 (2026) 699
its ‘privileged’ character for evidentiary purposes under the Oregon Evidence Code.” Bartlett, 369 Or at 618 (emphasis
added; brackets omitted). And if a record’s privileged character is maintained “for evidentiary purposes” under the
Oregon Evidence Code, then it is also maintained for discovery purposes, because (1) a client can “prevent” its disclosure under OEC 503(2); and (2) ORCP 36 B expressly limits discovery to any relevant matter that is not privileged.
Accordingly, we conclude that records of attorneyclient communications that were intended to be confidential
when made—and thus are protected by the attorney-client
privilege—remain privileged for purposes of ORCP 36 B’s
limit on discovery even if the records may not be exempt
from disclosure under the public records law.12 The remaining question is whether a court can avoid the public record
law disclosure procedures and compel disclosure under the
Oregon Rules of Civil Procedure in the interest of judicial
economy, on the grounds that the records may be subject to
disclosure under the public records law.
As we will explain, the answer to that question is
twofold. In general, a party in litigation with a public body can serve requests for production of documents under ORCP
43 and obtain discovery relevant to the litigation pursuant
to the rules of civil procedure without serving a “written
request” for public records under ORS 192.324(1) or otherwise complying with the public records law procedures for
disclosure.13 But if the party seeks discovery from the public body under the rules of civil procedure and not under
the public records law, the party is bound by the procedural
12
Our conclusion is limited to the facts presented in this case. That is, our conclusion — that records that were privileged when they were made remain privileged for purposes of ORCP 36 B’s limit on discovery, even though the records may be subject to disclosure under the public records law — is limited to that set of circumstances. We need not and do not decide whether OEC 503 would preclude the admission of those records into evidence if SRCC obtained them through the public records law procedures.
13
The converse is also true — a party in litigation with a public body can obtain public records from that public body by serving a written request for public records under ORS 192.324(1) instead of serving an ORCP 43 request for production of documents. However, as noted, a party in litigation with a public body who seeks to obtain records from the public body that relate to the litigation is required to notify the attorney for the public body that they are seeking records through the public records law. ORS 192.314(2)(a).
700 Sprague River Cattle Co. v. State of Oregon
requirements and limitations that apply to discovery in civil litigation, including the limit on the scope of discovery provided in ORCP 36 B.
That means, as relevant here, that a party seeking
discovery under the rules of civil procedure is not entitled to obtain privileged records through those procedures, because
ORCP 36 B expressly limits the scope of discovery to relevant matters that are not privileged. That conclusion is supported by our analysis of the rules of civil procedure, the
evidence code, and the public records law in Bartlett.
In Bartlett, we explained that the rules of civil procedure and the evidence code “operate independently” from
the public records law, and that those two ways of seeking
records from a public body “promote different goals, and use different terms.” 369 Or at 618. We further explained that
OEC 503(7) shows that the legislature “did not view the
attorney-client privilege and the disclosure requirements
of the public records law as inconsistent.” Id. Instead, the legislature “gave effect to both statutes.” Id. It did so by recognizing that “the public records law may require disclosing some communications subject to the attorney-client privilege * * * but nevertheless protects the evidentiary privilege for such communications.” Id.
As we have explained, “any person” can request
and obtain public records under the public records law, but
only parties in civil litigation with a public body can obtain the public body’s records through a discovery request under
the rules of civil procedure. The rules of civil procedure and the public records law define two distinct pathways—applicable to potentially overlapping, but different categories
of people—for obtaining records from a public body. Those
pathways were designed to operate independently, promoting different goals and using different terms. Although the
trial court concluded that the provisions were in conflict,
the legislature did not intend for those distinct pathways
to be inconsistent. By giving effect to both pathways for
obtaining public records, the legislature intended for parties seeking disclosure under one pathway to comply with the
limits and procedural requirements that apply to that pathway. There is no evidence that the legislature, in crafting
Cite as 375 Or 682 (2026) 701
two statutory schemes that were designed to operate independently, intended to allow a party in litigation with a public body to combine the disclosure requirements in the public records law with the discovery procedures in the rules of civil procedure, thereby circumventing the comprehensive
and detailed disclosure procedures specified in the public
records law that we have described.
The limited legislative history that is relevant here
supports that conclusion. As we noted in Bartlett, the legislative history was “essentially silent” on the issue in that case, 369 Or at 622, and we found little in the legislative history that is relevant to the issue that is presented here. However, as noted, the legislature amended the public records law in
1999 to require a party in litigation with a public body to
notify the attorney for the public body if the party sought
to obtain public records that relate to the litigation through the public records law. ORS 192.314(2)(a). At one committee hearing addressing that proposed amendment—SB 396
(1999)—Representative Lane Shetterly noted that a party
in litigation with a public body had “two avenues” to obtain public records: it could seek the records through the public records law procedures, or it could “go to court and seek an order through [the] discovery” procedures. Tape Recording,
House Judiciary Civil Law Committee, SB 396, Mar 17,
1999, Tape 69, Side A (comments of Rep. Lane Shetterly).
That comment seems to confirm what is apparent to
us from the text and structure of these statutory schemes:
A party in litigation with a public body has “two avenues”
to obtain relevant records from the public body, one through the rules of civil procedure, and one through the public
records law. Because those avenues were intended to operate
independently and promote different goals, we do not believe that the legislature intended to allow a party in litigation to combine the two processes, allowing the party to use the
rules of civil procedure to obtain through discovery records that are not discoverable under ORCP 36 B, on the grounds
that the records are more than 25 years old and thus subject to disclosure under the public records law. Rather, if a party in litigation with a public body wants to take advantage of
the disclosures allowed by the public records law—but not
702 Sprague River Cattle Co. v. State of Oregon
allowed by ORCP 36 B—it must follow the public records
law procedures.
It follows that the trial court erred when it granted
SRCC’s motion to compel discovery of privileged records in
this litigation, even though the records may be subject to
disclosure under the public records law. If SRCC seeks disclosure under the public records law, it must comply with
that law’s disclosure procedures.14
A peremptory writ of mandamus shall issue.
14
As for SRCC’s suggestion that it could take “years” for it to obtain the records through the public records law procedures, OWRD would be required to respond to a public records law request within five business days, ORS 192.324(2), and must disclose public records “as soon as practicable and without unreasonable delay.” ORS 192.329(1). If OWRD chose to pursue litigation instead of disclosing the records, SRCC would be entitled to recover its costs and attorney fees if it prevailed in the public records law litigation. ORS 192.431(3).