Evidence Code

ORS 40.280
Rule 511

A person upon whom ORS 40.225 (Rule 503) to 40.295 (Rule 514) confer a privilege against disclosure of the confidential matter or communication 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. This section does not apply if the disclosure is itself a privileged communication. Voluntary disclosure does not occur with the mere commencement of litigation or, in the case of a deposition taken for the purpose of perpetuating testimony, until the offering of the deposition as evidence. Voluntary disclosure does not occur when representatives of the news media are allowed to attend executive sessions of the governing body of a public body as provided in ORS 192.660 (Executive sessions permitted on certain matters) (4), or when representatives of the news media disclose information after the governing body has prohibited disclosure of the information under ORS 192.660 (Executive sessions permitted on certain matters) (4). Voluntary disclosure does not occur when a public body, as defined in ORS 192.311 (Definitions for ORS 192), discloses information or records in response to a written request for public records made under ORS 192.311 (Definitions for ORS 192) to 192.478 (Exemption for Judicial Department). Voluntary disclosure does occur, as to psychotherapists in the case of a mental or emotional condition and physicians in the case of a physical condition upon the holder’s offering of any person as a witness who testifies as to the condition. [1981 c.892 §39; 2003 c.259 §1; 2017 c.456 §9]

See also annotations under ORS 44.030 in permanent edition.

Notes of Decisions

Under this rule defendant waived psychotherapist-patient privilege when he called his former mother-in-law to testify about an incident of alcohol-induced amnesia and, therefore, it was not error for psychiatrist who had examined defendant at counsel’s request to testify about defendant’s alcohol dependency and to state conclusion that defendant nevertheless could have acted with conscious objective to commit the acts at the time in question. State v. Corgain, 63 Or App 26, 663 P2d 773 (1983), Sup Ct review denied

Father waived privilege of confidentiality in psychological report by furnishing it to his expert in preparation for trial and calling expert to testify about father’s mental condition. Boon and Boon, 100 Or App 354, 786 P2d 215 (1990)

In excess liability action, trial court properly applied attorney client privilege to documents relating to assignment agreement between insured and his assignees, depositions and file materials related to underlying medical malpractice case and material in files of insured’s attorney relating to excess liability action. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

Factors court may consider in determining whether waiver has occurred include whether disclosure was inadvertent, whether any attempt was promptly made to remedy error and whether preservation of privilege will be unfair to proponent. GPL Treatment, Ltd. v. Louisiana-Pacific Corp., 133 Or App 633, 894 P2d 470 (1995), aff’don other grounds, 323 Or 116, 914 P2d 682 (1996)

To prevent waiver of privilege during perpetuation deposition, party must object to disputed testimony both at time deposition is taken and at time offered at trial. State ex rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997)

Where plaintiff in medical malpractice action received proper notice of adverse party’s discovery deposition and during deposition answered without objection questions regarding plaintiff’s medical treatment, plaintiff did not offer self as witness nor voluntarily disclose privileged communications, so plaintiff did not waive physician-patient privilege. Barrier v. Beaman, 361 Or 223, 390 P3d 1048 (2017)

Law Review Citations

46 WLR 539 (2010)

Source

Last accessed
May 26, 2023

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