Johnson v. Premo ( 2020 )

578
Argued and submitted July 12, 2017, appeal dismissed as moot March 4,
petition for review denied June 18, 2020 (366 Or 569)
MARTIN ALLEN JOHNSON,
Plaintiff-Appellant,
v.
Jeff PREMO,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
06C16178; A160579
461 P3d 985
Petitioner appeals the denial of a post-judgment motion for a protective order
under ORCP 36 C to limit the use of privileged information revealed during
his post-conviction-relief case. Petitioner filed that motion two years after the
post-conviction court awarded him relief in the form of a new trial due to the
inadequate assistance of counsel that petitioner received in his underlying crim-
inal case. That new trial has concluded, resulting in a conviction. On appeal,
petitioner contends that the issuance of a protective order could have significant
bearing in future litigation. Held: The Court of Appeals, in an exercise of its ongo-
ing obligation to evaluate the justiciability of an appeal, dismissed this case as
moot. The privileged status of attorney-client communications is not dependent
upon the issuance of a protective order, and petitioner did not waive that priv-
ilege in post-conviction-related discovery. Petitioner failed to identify practical
effects or collateral consequences that could flow from the post-conviction court’s
denial of his motion for a protective order.
Appeal dismissed as moot.
Thomas M. Hart, Judge.
Daniel J. Casey argued the cause for appellant. With him
on the opening and reply briefs was Robert L. Huggins, Jr.
Martin Allen Johnson filed the supplemental brief pro se.
Leigh A. Salmon, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Dustin Buehler, Assistant Attorney General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.*
______________
* Aoyagi, J., vice Wollheim, S. J.
Cite as 302 Or App 578 (2020) 579
DeHOOG, P. J.
Appeal dismissed as moot.
580 Johnson v. Premo
DeHOOG, P. J.
When a post-conviction petitioner raises claims of
inadequate assistance of counsel, the attorney-client privi-
lege gives way, permitting disclosure of privileged commu-
nications that are “relevant to an issue of breach of duty by
the lawyer * * * to the client.” OEC 503(4)(c).1 That exception
is narrow, however, and, as relevant here, it “applies only
during the pendency of the post-conviction case, including
appeal, and only as is reasonably necessary to defend against
petitioner’s specific allegations of breach of duty.” Longo v.
Premo, 355 Or 525, 539, 326 P3d 1152 (2014). Petitioner’s
appeal invites us to explore the contours of that rule, but,
as we explain below, we conclude that his appeal is moot.
Accordingly, we dismiss petitioner’s appeal.
Petitioner appeals the denial of a post-judgment
motion for a protective order that he made after the post-
conviction court had awarded him relief in the form of a new
trial in his underlying criminal case. The post-conviction
court ordered that relief in 2013. Petitioner filed the post-
judgment motion at issue here two years later, in 2015. The
original post-conviction judgment granting petitioner a
new trial has since been affirmed on appeal. See Johnson
v. Premo, 361 Or 688, 399 P3d 431 (2017) (concluding that
petitioner was entitled to a new trial on criminal charges
due to ineffective assistance by his trial counsel).
The substance of petitioner’s claim in the present
case is that the post-conviction court erred in denying his
post-trial request for, among other things, various forms of
relief based upon his understanding of the Supreme Court’s
decisions in Longo and in Brumwell v. Premo, 355 Or 543,
326 P3d 1177 (2014), both of which addressed the issue of
discovery-related pre-trial protective orders in post-
conviction proceedings. Because his motion, like those
of the petitioners in Longo and Brumwell, sought to limit
the state’s use of discovery materials and other materials
he asserts are subject to the attorney-client privilege, peti-
tioner contends that the holdings of those cases control here.
1
OEC 503(4)(c) has been amended since the relevant events in this appeal
occurred; however, because those amendments do not affect our analysis, we
refer to the current version of the statute in this opinion.
Cite as 302 Or App 578 (2020) 581
We need not decide that issue, however, because
of our ultimate conclusion that petitioner’s appeal is moot.
That conclusion follows from our ongoing duty to evaluate
the justiciability of petitioner’s appeal. As in all cases, before
deciding the merits of petitioner’s appellate arguments, we
must consider whether any jurisdictional impediments pre-
clude us from reaching them. See Walton v. Board of Parole,
267 Or App 673, 676, 341 P3d 828 (2014) (noting appellate
court’s “independent obligation to consider matters con-
cerning jurisdiction sua sponte”). The superintendent has
identified one potential impediment, questioning whether
the post-conviction court’s denial of petitioner’s post-
judgment motion is an appealable order. We, however, have
identified a second potential impediment: Events occurring
since petitioner filed his appeal appear to have rendered
his appeal moot. For the reasons that follow, we focus on
the latter concern, ultimately concluding that petitioner’s
case no longer presents a justiciable controversy, now that
the new trial that the post-conviction court awarded him
as relief has concluded. That conclusion renders it unneces-
sary to further consider the appealability of the challenged
order, or, for the most part, the substance of petitioner’s
appellate argument. We therefore dismiss this case as
moot.
In order to explain that disposition, some back-
ground on this case and petitioner’s first criminal trial is
required.2 Petitioner was convicted of aggravated murder
based on the 1998 killing of a 15-year-old girl, and his
conviction and sentence of death were affirmed on direct
appeal. State v. Johnson, 340 Or 319, 131 P3d 173, cert den,
549 US 1079 (2006). The state’s theory of the case was that
petitioner had given the victim morphine and subjected
her to sexual intercourse, after which he had strangled her
to death and had thrown her body off a bridge in Clatsop
County. Johnson v. Premo, 361 Or at 690-92. The defense’s
theory of the case was that the victim had been alive when
petitioner threw her off the bridge; counsel supported that
2
The procedural history of this case on appeal is extremely complex and
involves dozens of motions. We do not describe that procedural history in detail
as it is unnecessary to our resolution of this matter.
582 Johnson v. Premo
theory by presenting expert testimony that the victim’s
death had resulted from drowning. Id. at 690.3
In this post-conviction proceeding, which petitioner
initiated in 2006, he argued that he had received inadequate
assistance of counsel because defense counsel had failed to
investigate and develop a defense theory that the victim
had died of a morphine overdose before he threw her off the
bridge; relatedly, petitioner claimed, counsel had performed
deficiently in failing to provide expert testimony to support
such a theory. Id. at 693-95.4 Petitioner first requested a
protective order for attorney-client privileged materials in
September 2009, prior to disclosing those materials in pre-
trial discovery. Relying on ORCP 36 C,5 petitioner requested
a “protective order limiting the use of privileged informa-
tion revealed during discovery herein to petitioner’s pend-
ing post-conviction relief case.” The post-conviction court
denied the protective order.6 Notably, the post-conviction
court issued that ruling well before the Supreme Court
had decided Longo and Brumwell, and therefore well before
their rulings indicating that a pretrial order limiting the
state’s redisclosure of attorney-client privileged materials
3
Counsel’s defense strategy was at least theoretically viable because, at
that time, venue was considered an element of a criminal offense, see generally
State v. Mills, 354 Or 350, 312 P3d 515 (2013) (discussing history); accordingly,
counsel argued that the murder had occurred in Clatsop County rather than
Washington County where the case was being tried. Johnson v. Premo, 361 Or at
693. Notwithstanding the theoretical plausibility of that argument, the Supreme
Court described counsel’s chosen strategy as “improbable” when affirming the
post-conviction court’s determination that petitioner had received inadequate
assistance of counsel, noting that “a venue defense provided no reasonable pros-
pect for acquittal” and “had the significant drawback of essentially acknowledg-
ing that petitioner had committed aggravated murder, and had done so in a par-
ticularly callous manner by throwing a youth whom he had sexually assaulted off
a bridge.” Id. at 706, 710.
4
The court observed that that theory would not have been a “strong” defense
that would have supported an acquittal, but could have supported an argument
that this was a lesser crime than aggravated murder and “had the potential to
remove the death penalty from the equation.” Johnson v. Premo, 361 Or at 706-07.
5
ORCP 36 C permits a trial court to, for good cause, restrict the use of mate-
rials obtained in discovery during the course of proceedings before it in order “to
protect a party or person from annoyance, embarrassment, oppression or undue
burden or expense.”
6
Petitioner sought a writ of mandamus in the Oregon Supreme Court chal-
lenging the trial court’s denial of his motion, which the court denied in 2010.
Johnson v. Belleque (S058087).
Cite as 302 Or App 578 (2020) 583
obtained in discovery may be warranted in post-conviction
proceedings.
In April 2013, at the conclusion of petitioner’s post-
conviction trial, the court granted him relief from his con-
victions, concluding that he had received inadequate assis-
tance of counsel in various respects. The state appealed
from the judgment, and petitioner cross-appealed, assign-
ing error to the post-conviction court’s conclusion that he
had not proven his other claims for relief. Petitioner did not
assign error to the denial of his pretrial motion for an ORCP
36 C protective order.
While the appeal from the merits judgment was
pending before us, the Supreme Court issued Longo and
Brumwell. Thereafter—as noted above, two years after the
post-conviction court had granted him relief—petitioner
filed the pro se motion at issue here. Citing Longo and
Brumwell, petitioner sought, among other things, a pro-
tective order for “any and all” materials protected by the
attorney-client privilege in this case. Petitioner’s motion
did not identify specific discovery materials to which the
privilege applied but asked for a protective order covering
“PCR legal materials,” which petitioner evidently viewed as
including, among other things, testimony and exhibits in the
post-conviction proceeding, as well as trial court and appel-
late court opinions in the case. Although not clearly stated,
petitioner’s motion can be understood to ask for relief that
encompassed restrictions on all of the following: the state’s
disclosure, to witnesses in preparation for a retrial on the
criminal charges, of materials it had received in the course
of the post-conviction proceedings; the state’s reliance on
those materials in identifying trial witnesses and prepar-
ing their testimony at retrial; and the state’s review or other
reliance on those materials in anticipating who may testify
on petitioner’s behalf and in preparing to cross-examine or
rebut that anticipated testimony on retrial. The motion can
further be understood to request that the post-conviction
court appoint counsel from the Attorney General’s office to
provide advice and assistance to defense counsel and the
Washington County District Attorney’s office on retrial to
ensure compliance with those restrictions and otherwise
prevent the use of attorney-client privileged information in
584 Johnson v. Premo
the course of his retrial. The post-conviction court denied
petitioner’s post-judgment motion as “untimely, abusive,
repetitive, and not within the jurisdiction” of the post-
conviction court. This appeal ensued.
During the pendency of this appeal and after the
Supreme Court had affirmed the post-conviction court’s
grant of a new trial, retrial proceedings on the crimi-
nal charges against petitioner commenced in Washington
County Circuit Court; those proceedings are discussed in
greater detail below. In light of those proceedings, we asked
the parties to submit memoranda addressing whether
this case has become moot, given the nature of petitioner’s
claims for relief. Both petitioner and the superintendent
have responded that we should not focus on the specifics of
what petitioner requested in his pro se motion, but instead
on what he asks for on appeal, which both parties liken to a
protective order of the sort at issue in Longo and Brumwell.
But, as we explain below, those cases arose in a much dif-
ferent procedural context than the present case; thus, in our
view, the parties’ focus is misdirected.
We pause at this point to recap Longo and Brumwell,
as the differences between those cases and this one are sig-
nificant to our disposition here. Both Longo and Brumwell
were mandamus cases involving interlocutory appeals at the
discovery stage in post-conviction proceedings; in each case,
the post-conviction court had been asked to issue a protec-
tive order pursuant to ORCP 36 C with respect to materials
to be disclosed in discovery, in order to prevent the state’s
attorney who was defending the case “from disclosing such
information to third parties unrelated to the post-conviction
case.” Longo, 355 Or at 527; see also Brumwell, 355 Or at
545 (same). The underlying principle in each of those cases
was that, although OEC 503(4)(c) provides a limited excep-
tion to the attorney-client privilege, which permits the dis-
closure of confidential information to the extent reasonably
necessary to defend against allegations of breach of duty,
that exception is limited in scope and duration to the breach
of duty claim. Longo, 355 Or at 537-39; Brumwell, 355 Or at
548. Thus, a party that discloses attorney-client materials
in discovery pursuant to the exception has not waived the
Cite as 302 Or App 578 (2020) 585
attorney-client privilege with respect to the disclosed mate-
rials. Longo, 355 Or at 537-39.
In determining the significance of those cases here,
we focus on several key aspects of the court’s decision in
Longo, which was the lead case of the two. There, the post-
conviction court had been asked, during the discovery phase
of the proceeding, to issue a protective order “requiring that
any privileged information produced through discovery be
used solely for the purpose of litigating the claims presented
in his petition for post-conviction relief.” Id. at 528. The peti-
tioner had specifically requested that any material that he
provided in discovery (and that he believed to be privileged)
be provided under seal and designated as confidential.
Id. at 528 n 4. The post-conviction court had declined to issue
an order to that effect, concluding that it was unnecessary
because any attorney-client privileged information discov-
ered during the post-conviction proceeding “can only be used
in this proceeding and would not be usable subsequently in
any other matter because the privilege would resurface.”
Id. at 529 (internal quotation marks omitted). The Supreme
Court did not disagree with that understanding of the priv-
ilege. Id. at 532. The court did, however, disagree that the
petitioner was not entitled to protective measures at the
discovery phase of the post-conviction trial, because, as the
petitioner had argued, without a protective order, the state’s
attorneys who received the privileged materials in discovery
might confer with third parties who, in turn, might be able
to use the materials against the petitioner in the event of a
retrial. Id. The court reasoned that the exception to the priv-
ilege applicable in post-conviction proceedings is “a limited
exception permitting disclosures of confidential information
only as reasonably necessary for a lawyer to defend against
allegations of breach of duty”; one that “applies only during
the pendency of the post-conviction case, including appeal,
and only as is reasonably necessary to defend against peti-
tioner’s specific allegations of breach of duty.” Id. at 539. It
therefore disagreed with the post-conviction court that an
order in the discovery phase of the post-conviction proceed-
ing was not appropriate:
“We conclude that petitioner had a privilege to prevent
the disclosure of confidential communications in this matter
586 Johnson v. Premo
under OEC 503(2), to the extent that those communications
did not fall under the breach-of-duty exception of OEC 503
(4)(c). Therefore, the post-conviction court had a legal duty to
prevent the disclosure of those communications not reason-
ably necessary to serve the limited purposes of that exception.
Because petitioner moved to prevent the disclosure of priv-
ileged information not reasonably necessary to a defense,
the post-conviction court did not have discretion to fail to
protect that information. Thus, the post-conviction court’s
order denying petitioner’s motion constituted legal error.”
Id. at 540-41 (emphasis added). That is, the holding in Longo
was limited to privileged discovery materials that had been
provided to the defense, but that ultimately were not nec-
essary to the defense. See also id. at 539 n 10 (“We make
this determination in the context of a discovery dispute. We
therefore express no opinion as to whether such a commu-
nication is protected by OEC 503(2) after it is admitted into
evidence.” (Emphasis added.)); id. at 541 (stating that “a pro-
tective order was appropriate to prohibit those disclosures
not reasonably necessary for the preparation of a defense”).
Protection of that information, the court concluded, was not
discretionary. Id. The court went on to note, however, that
the post-conviction court did have discretion about whether
and to what extent it should craft protections as to privi-
leged information that was pertinent to “the specific allega-
tions of breach of duty.” Id.Even though petitioner’s post-judgment motion was
based on the same principles as those enunciated in Longo,
the circumstances of his motion were measurably different.
As the Supreme Court made clear in Longo, that case con-
cerned an order to be issued “in the context of a discovery
dispute”—the court explicitly expressed no opinion as to
whether privileged materials necessary to the defense of
a petitioner’s claim would be protected after having been
entered into evidence. Id. at 539 n 10. Stated differently, the
materials that Longo held the post-conviction court must
protect were not materials already in the post-conviction
court record, but, rather, materials that had been pro-
vided in the course of discovery but that ultimately were
not relevant to the post-conviction petitioner’s inadequate-
assistance-of-counsel claim. Id. at 540-41. We emphasize
Cite as 302 Or App 578 (2020) 587
those circumstances not because we must determine whether
petitioner is correct, that some or all of the materials that he
has identified are protected by the attorney-client privilege,
but to show that the remedy addressed in Longo pertained
to a narrow set of circumstances not present here. At issue
in Longo was what a post-conviction court may or even must
do to protect information provided during post-conviction-
related discovery, when it remains to be determined whether
the materials produced are relevant to the defense of the
post-conviction claim and therefore fall within OEC 503
(4)(c)’s limited exception to the attorney-client privilege. See
id. at 541-42 (“The post-conviction court, in the exercise of
its discretion, may determine what disclosures are reason-
ably necessary for the purposes of a defense and what proce-
dures are appropriate.”).
At issue in this case, on the other hand, is whether
the post-conviction court was required to issue a protective
order covering attorney-client materials that had already
been disclosed in discovery, and whose relevance to the
defense of petitioner’s claims had, presumably, already
been determined. That is, because the post-conviction trial
had long been concluded, it had already been established,
at least implicitly, which of the materials disclosed in dis-
covery were relevant to the defense of the post-conviction
claim, as that defense had concluded (in petitioner’s favor)
and the post-conviction record was closed. Whatever mate-
rials were disclosed to the defense during discovery—which,
of course, are not, as such, a part of the post-conviction trial
record—were disclosed a decade ago. And, under Longo, to
the extent that the discovery materials included matters
subject to the attorney-client privilege, the mere act of dis-
closure had not waived that privilege. As the court noted in
Longo, the exception to the attorney-client privilege in the
context of post-conviction proceedings “applies only during
the pendency of the post-conviction case, including appeal,
and only as is reasonably necessary to defend against peti-
tioner’s specific allegations of breach of duty.” Id. at 539.
That returns us to the issue of justiciability, and,
in particular, whether this case is moot. A case becomes
moot when “a court’s decision no longer will have a practical
effect on or concerning the rights of the parties.” Brumnett
588 Johnson v. Premo
v. PSRB, 315 Or 402, 406, 848 P2d 1194 (1993); see also
State v. Hemenway, 353 Or 498, 501, 302 P3d 413 (2013) (“If,
because of changed circumstances, a decision no longer will
have a practical effect on or concerning the rights of the
parties, the case is moot and will be dismissed.” (Internal
quotation marks omitted.)); Hamel v. Johnson, 330 Or 180,
184, 998 P2d 661 (2000) (“[A] case becomes moot when an
event occurs that renders it impossible for the court to grant
effectual relief.” (Internal quotation marks omitted.)).
An order of the sort at issue in Longo and
Brumwell—an ORCP 36 C order by a court “in which the
action is pending” that provides that discovery be had “on
specified terms and conditions”—expressly contemplates
the issuance of an order before disclosures are made. It is
far from evident that such an ORCP 36 order can issue after
discovery—indeed, after trial—is complete, and petitioner
has cited no authority indicating that it can. We recognize
that ORS 138.520 provides that a post-conviction court that
has granted relief “may also make supplementary orders to
the relief granted, concerning such matters as rearra[ign]-
ment, retrial, custody and release on security.” And, to the
extent that petitioner’s motion in this case can be viewed as
a request for a post-trial order concerning his retrial under
ORS 138.520, it might, as a theoretical matter, be possible
for a post-conviction court to enter an order limiting the use
on retrial of privileged materials that were obtained in the
course of the post-conviction proceeding; while not the same
as the orders at issue in Longo and Brumwell, such an order
would, at least in principle, be consistent with the holdings
of those cases. However, the fact remains that, in this case,
petitioner’s retrial has already occurred. Given that cir-
cumstance, it is difficult to envision how the relief sought
on appeal—the issuance of a post-trial protective order con-
cerning the use of pretrial discovery—can be characterized
as supplementary relief concerning his retrial.
As noted, when petitioner’s retrial commenced in
circuit court, we sought the parties’ assistance with those
issues, particularly as they might relate to mootness. In
response, petitioner informed us that, before petitioner’s
retrial commenced, his defense attorney, citing Longo and
Cite as 302 Or App 578 (2020) 589
Brumwell, filed a motion asking the trial court (1) to “ ‘inquire
of the prosecutors the extent, if any, of their exposure to [peti-
tioner]’s privileged communications disclosed in the post-
conviction process related to the present case,’ ” and (2) to
issue an order prohibiting the prosecutors from accessing
privileged communications disclosed in the post-conviction
proceeding in the future. (Brackets in original.) The trial
court made the requested inquiry, and, in response, both
prosecutors indicated that the only materials from the post-
conviction case to which they had been exposed were the
judicial opinions, as they had avoided exposure to any other
materials. Based on those representations, the trial court
declined to enter petitioner’s requested order. Petitioner’s
retrial proceeded in November 2019, resulting in a jury ver-
dict of guilty on charges of first-degree murder and a sen-
tence of life in prison without the possibility of parole.
In the superintendent’s view, petitioner’s retrial has
rendered petitioner’s appeal moot. Petitioner disagrees. He
contends that the issuance of an order concerning the priv-
ileged materials created in the course of his first criminal
trial could be important to future litigation. “Whether a case
has become moot will depend on a factual determination
regarding the potential impact of the court’s decision on the
parties.” Garges v. Premo, 362 Or 797, 421 P3d 345 (2018). If
the party arguing against mootness “can identify ‘practical
effects or collateral consequences’ ” that flow from the under-
lying challenged decision, then the party advocating moot-
ness must show that the effects and consequences identified
are either “ ‘legally insufficient or factually incorrect.’ ” Id. at
802 (quoting Dept. of Human Services v. A. B., 362 Or 412,
426, 412 P3d 1169 (2018)). Here, as explained below, we con-
clude that petitioner has not identified any practical effect
or collateral consequence of the sort that our or the Supreme
Court’s case law has recognized.
In asserting that the post-conviction court’s denial
of the requested post-trial order has practical effects or col-
lateral consequences, petitioner contends that, even accept-
ing as true the prosecutors’ statements to the court retrying
his case, that is, that they had had no access to petitioner’s
privileged attorney-client communications,
590 Johnson v. Premo
“that does not account for the entirety of the trial-court
record and what may have occurred after those represen-
tations were made. If, on direct appeal, petitioner is able
to show from the entire trial-court record that the state
used such otherwise privileged communications to con-
vict him a second time, he would not be able to challenge
that conviction based on the breach of the Longo/Brumwell
protective-order to which he is entitled, for the simple rea-
son that no such protective order was ever entered either
in the post-conviction case or in the criminal-retrial case.”
(Emphases in original and footnote omitted; emphasis
added.) That proposition, however, is incorrect, at least inso-
far as it suggests that, if the state used privileged commu-
nications to convict him on retrial, he will have no remedy.
That proposition is based on a misunderstanding of the
scope of the attorney-client privilege (and the narrow scope
of the breach-of-duty exception to that privilege) that the
court discussed in Longo.
As we understand petitioner’s argument, it appears
to take as its premise that the only way that he can pre-
vent the state from later using against him privileged
materials obtained in the post-conviction proceeding is
a so-called Longo/Brumwell protective order. From that
premise, petitioner reasons that he will have no recourse if
he subsequently discovers that the state has used attorney-
client privileged information in the course of retrying
him. But, because petitioner’s premise is flawed, so is his
conclusion.
The privileged status of attorney-client communi-
cations is not dependent upon the issuance of a protective
order, and, to the extent that privileged materials were dis-
closed in post-conviction-related discovery, the mere disclo-
sure of them did not waive that privilege. As explained at
some length above, the Longo court made quite clear that
the limited exception to the attorney-client privilege in the
context of post-conviction breach-of-duty claims “applies
only during the pendency of the post-conviction case, includ-
ing appeal, and only as is reasonably necessary to defend
against petitioner’s specific allegations of breach of duty.”
355 Or at 539 (emphasis added). Thus, if the state did, in
fact, use attorney-client privileged information in securing
Cite as 302 Or App 578 (2020) 591
a new conviction, the issuance or nonissuance of a Longo/
Brumwell order has no bearing on petitioner’s ability to pur-
sue a claim to that effect on direct appeal of that conviction
or, if necessary, in future collateral proceedings challenging
his new convictions. The privilege exists—and can, presum-
ably, be enforced—because petitioner has not waived it; it
does not depend on the issuance of an order recognizing the
existence of the privilege.7 We emphasize that Longo and
Brumwell held that a prophylactic remedy in advance of pro-
viding discovery is appropriate in post-conviction cases to
protect against dissemination of attorney-client privileged
materials to third parties. Those cases did not, however,
suggest that this was the sole remedy that was available to
protect attorney-client information disclosed in the course
of a post-conviction proceeding, or that the state’s misuse of
such materials at a later date would be permissible in the
absence of a discovery protective order. And, because peti-
tioner has not meaningfully argued that that remedy would
not be available in a direct appeal of his new conviction, we
conclude that he has not, on that basis, identified a “practi-
cal effect” that flows from the post-conviction court’s denial
of his motion for a protective order.
Petitioner also asserts that the impermissible use of
attorney-client privileged materials from this post-conviction
proceeding could infect future post-conviction and habeas
corpus cases in which he will challenge his new convictions;
he argues that a protective order should therefore either
extend through direct appeal, post-conviction and habeas
corpus proceedings concerning his new trial, or, alterna-
tively, should remain in effect indefinitely. That is so, he
asserts, “because such privilege continues to exist even after
the conclusion of the criminal retrial.” But, even accepting
that last point as true, our discussion above demonstrates
that the continued existence of the privilege is in no way
dependent on whether a much-belated discovery protective
order was, is, or should have been entered long after trial
in a prior post-conviction proceeding or, for that matter
well after a retrial has occurred. So, again, petitioner has
7
Nor would the existence of such an order entered after a retrial provide any
basis for arguing that the state violated the not-yet-existing order in the course
of the retrial.
592 Johnson v. Premo
not demonstrated any practical effect.8 And, to the extent
that petitioner is arguing that use of privileged materials
in future proceedings is a “collateral consequence” to denial
of his motion, we reject that argument as well because, as
with his practical-effect argument, petitioner fails to under-
stand that his ability to curtail or remedy the state’s misuse
of privileged information will not be abridged by the lack of
such a protective order.
Moreover, in order to prevent a case from being con-
sidered moot, a “collateral consequence” must be something
beyond mere speculation. See, e.g., Brumnett, 315 Or at 407(“mere possibility” that the state might at some point in the
future seek repayment for hospital services provided to the
petitioner did not prevent his challenge to the Psychiatric
Security Review Board’s jurisdiction over him from being
moot, where he had been granted unconditional release).
As we have observed, a collateral consequence “must have
a significant probability of actually occurring; a specula-
tive or merely possible effect is not enough.” Oregon School
Activities v. Board of Education, 244 Or App 506, 510,
260 P3d 735 (2011). Nothing in this case, or in the state’s
arguments made to the Supreme Court in the Longo or
Brumwell cases, indicates that the state makes a practice
of using attorney-client privileged materials in violation of
the strictures of OEC 503. See, e.g., Longo, 355 Or at 530(“The state acknowledges that, if petitioner prevails on his
post-conviction claims, petitioner may again assert a priv-
ilege to confidential communications disclosed during the
post-conviction case and limit their disclosure or use in
any future proceedings.”). It would be purely speculative to
assume that, in the absence of an order specifically stating
that privileged materials are privileged, there is a signifi-
cant probability that the state will use such materials in a
manner that does not comport with the attorney-client priv-
ilege set forth in OEC 503.
In sum, petitioner has not waived his attorney-client
privilege with respect to material he provided in discovery
8
We also note that it would be speculative to assume that post-conviction
proceedings concerning petitioner’s retrial would involve issues surrounding
attorney-client privileged communications that occurred between petitioner and
attorneys that had represented him in the earlier proceeding.
Cite as 302 Or App 578 (2020) 593
in the post-conviction proceeding. Should it be demonstrated
that the state made use of attorney-client privileged infor-
mation on petitioner’s retrial, or should the state attempt to
make use of attorney-client privileged materials in prose-
cuting or defending cases involving petitioner in the future,
petitioner’s ability to prevent the state from doing so will
not be affected by the lack of a post-trial protective order in
this post-conviction case enunciating such a right. Because
petitioner has identified no practical effect or collateral con-
sequence that could flow from the post-conviction court’s
denial of his post-trial motion for a protective order, we con-
clude that his appeal is moot.9
Appeal dismissed as moot.
9
As noted, our conclusion that petitioner’s appeal is moot renders it unneces-
sary to further consider the superintendent’s argument that the post-conviction
court’s denial of petitioner’s post-judgment motion is not an appealable order.