Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—D. Or.: Court rejects privilege claim, orders fired Shriners employee to disclose text messages with former coworkers, (Mar 11, 2026)

By Sherri M. Schroeder, J.D.

The court found the employee had waived her right to assert privilege and her text communications with other employeeS—who were also fired for similar reasons—were not privileged.

The Oregon district court has found that communications between a former employee of Shriners Hospital for Children fired for refusing to be vaccinated against COVID-19 and other former employees are not protected by attorney-client privilege and that the former employee was not substantially justified in withholding any communications. The case stems from a 2023 lawsuit alleging religious discrimination in violation of Title VII and state law. After the case previously survived Shriners’ motion to dismiss (see Hospital’s undue hardship defense failed where state law allowed COVID vax alternatives, (Feb. 21, 2024)), the litigants were back in court on the former employee’s amended motion for reconsideration of the court’s orders requiring production of the employee’s communications with other employees of Shriners Children’s, among other issues. For the first time, the former employee now claims that such phone/text communications are protected under the attorney-client privilege and common-interest doctrine. However, the court disagreed, finding the arguments failed because the former employee had waived her right to assert privilege and because the communications were not in fact privileged (Gamon v. Shriners Hospital for Children, No. 3:23-cv-00216-IM (D. Or. Mar. 3, 2026)).

Firing. The employee had worked as an executive assistant at Shriners since 1998. In the summer of 2021 during the COVID-19 pandemic, the hospital announced a COVID-19 vaccine mandate that permitted exceptions based on religious belief and preexisting medical conditions. The employee submitted a request for a religious exemption, but the hospital denied it. Soon thereafter, the hospital fired her. In February 2023, the employee filed suit alleging religious discrimination in violation of Title VII and state law. Her counsel has individually represented over a dozen former employees of Shriners, but the former employee is the only plaintiff in this action.

Waiver. In the case at hand, the court has issued numerous discovery orders requiring the former employee to produce communications with other former employees fired from Shriners for refusing COVID vaccination. In her motion for reconsideration, the former employee raises for the first time that she was substantially justified in withholding communications with former employees because those communications are protected by the attorney-client privilege. However, the court disagreed, finding instead that any privilege had been waived because she had stipulated that the communications were not privileged. The parties had stipulated that the former employee would “produc[e]... without limitation, the full text message thread(s) between Plaintiff and the other SHC plaintiffs, which plaintiff agrees are not privileged.” (emphasis added) The former employee did not argue that there were any privileged communications until over six months later. The court also noted she did not provide any additional evidence that the communications were contemporaneously treated as privileged, nor did she persuasively explain why the court should excuse the stipulation and failure to raise the issue earlier.

Common-interest privilege. The court went on to note that even if the former employee could overcome the waiver, common-interest privilege is inapplicable. The employee had argued that the doctrine applied because she and the other former employees are represented by the same law firm in federal court with extremely similar causes of action, all involving religious discrimination in employment due to failure to accommodate, and termination on the same date by the same defendant working at the same location. However, the court found that “the common-interest privilege is designed to allow attorneys for different clients pursuing a common legal strategy to communicate with each other.” Here, the communications were not between attorneys but rather between the former employee and other former employees. The court stressed that the former employee is the only plaintiff in the lawsuit at hand and is not a party in any of the other suits, so none of the communications are made between co-plaintiffs.

Furthermore, the former employee could not establish the communications were privileged based on an alleged joint defense agreement, as she did not supply the alleged agreement and did not specify when the agreement was executed. “Beyond a few conclusory sentences, Plaintiff has not raised anything to substantiate an agreement between herself and other employees of Defendant,” the court stated. “This showing is insufficient to meet Plaintiff’s burden of establishing attorney-client privilege.”

The former employee also failed to establish the communications with former employees are privileged because she acted as her counsel’s agent. Both she and her counsel attested that she had been appointed the firm’s “point person” tasked with communicating with all of the firm’s clients who had been terminated from Shriners after their religious exemptions applied. However, the court held that voluntarily disclosing privileged documents to third parties will generally destroy the privilege. “It strains credulity to find that a client of a law firm acted as an agent protected by the attorney-client privilege,” stated the court. Neither Shriners nor the court could find a Ninth Circuit case recognizing a counsel’s clients as counsel’s own agent with respect to the counsel’s other clients. In addition, the court noted that Oregon’s Rules of Professional Conduct only allow for attorneys to enter into business relationships with clients under narrow circumstances, and it was unclear from the record whether the former employee acted as point person purely voluntarily or whether all of the conditions required under the Rules had been met.

Conclusion. Finding that the former employee had not met the “high bar required for showing a manifest injustice or clear error based on this Court’s prior orders requiring production of communications,” the court denied her motions for reconsideration.

The case is No. 3:23-cv-02216-IM.

Judge: Immergut, K.

Attorneys: Caroline Janzen (Rugged Law, Inc.) for Margaret Gamon. Meagan A. Himes (Davis Wright Tremaine, LLP) for Shriners Hospitals for Children.

Companies: Shriners Hospitals for Children

Cases: EvidenceDiscovery Covid19 ReligiousDiscrimination Discrimination OregonNews